ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Vaughn Miles MUNGIN.
Misc. Docket AG No. 88, Sept. Term, 2012.
Court of Appeals of Maryland.
July 18, 2014.
96 A.3d 122
William C. Brennan, Esquire (Brennan McKenna Manzi Shay Levan, Greenbelt, MD), for Respondent.
Argued before BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, MCDONALD and WATTS, JJ.
WATTS, J.
This attorney discipline proceeding concerns a Maryland lawyer who: (1) negligently mishandled his attorney trust account in connection with nine separate client matters; (2) withdrew cash from his attorney trust account on three separate occasions; and (3) failed to properly account for and disburse settlement funds in a prompt fashion.
Vaughn Miles Mungin (“Mungin“), Respondent, a member of the Bar of Maryland, was retained by various clients in personal injury cases, all of which were settled pursuant to agreements. On March 22, 2011, Capital One, N.A. (“Capital One“), the holder of Mungin‘s attorney trust account, notified the Attorney Grievance Commission of Maryland (“the Commission“), Petitioner, that a check in the amount of $2,000 had been presented without sufficient funds present in the attorney trust account, resulting in an overdraft in the amount of $1,548.84.
On February 26, 2013, on the Commission‘s behalf, Bar Counsel filed in this Court a “Petition for Disciplinary or Remedial Action” against Mungin, charging him with violating Maryland Lawyers’ Rules of Professional Conduct (“MLRPC“) 1.1 (Competence), 1.15 (Safekeeping Property), 8.4(b) (Criminal Act), 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation), 8.4(d) (Conduct That Is Prejudicial to the Administration of Justice), and 8.4(a) (Violating the MLRPC), Maryland Rule 16-607 (Commingling of Funds), Maryland Rule 16-609 (Prohibited Transactions), and
On March 12, 2013, we designated the Honorable Crystal Dixon Mittelstaedt (“the hearing judge“) of the Circuit Court for Prince George‘s County to hear this attorney discipline proceeding. On July 8 and 25, 2013, the hearing judge conducted a hearing. On October 18, 2013, the hearing judge filed in this Court findings of fact and conclusions of law, concluding that Mungin had violated MLRPC 1.1, 1.15(a), 1.15(d), 8.4(d), and 8.4(a), Maryland Rule 16-609(a)-(c), and
On June 4, 2014, we heard oral argument. For the below reasons, we indefinitely suspend Mungin from the practice of law in Maryland with the right to apply for reinstatement after six months.
BACKGROUND
In her opinion, the hearing judge found the following facts, which we summarize.
On March 7, 2005, this Court admitted Mungin to the Bar of Maryland. In 2006, Mungin became a solo practitioner and opened an office in Greenbelt, Maryland. On or about March 21, 2011, Mungin presented a check in the amount of $2,000, drawn on his attorney trust account, for payment to Capital One, the holder of his attorney trust account. Presentment of the check caused an overdraft of the attorney trust account in the amount of $1,548.84.
On or about April 7, 2011, Mungin received from Bar Counsel a certified letter requesting an explanation for the overdraft. On August 30, 2011, Bar Counsel subpoenaed Mungin‘s attorney trust account records for the period be-
Trina Coore Matter
On May 11, 2009, Mungin deposited into his attorney trust account a check in the amount of $8,000 on behalf of his client, Trina Coore (“Coore“), received pursuant to a settlement in Coore‘s personal injury case. Of the settlement funds, $1,743.83 was to be paid to Coore‘s medical providers, and $2,665 comprised Mungin‘s attorney‘s fees. Specifically, $1,146 was to be paid to Physiotherapy Associates, $561.09 was to be paid to Doctor‘s Community Hospital, and $36.74 was to be paid to Doctor‘s Community Hospital/ER Division. On May 13, 2009, Mungin transferred $5,000 in funds from his attorney trust account to his operating account. On May 20, 2009, Mungin issued to Coore a check in the amount of $3,219.90, drawn on Mungin‘s attorney trust account.
In June 2009, Mungin failed to maintain $1,743.83 in the attorney trust account for the outstanding balances owed to Coore‘s medical providers. On June 9, 2009, Mungin‘s attorney trust account balance fell to $565. On June 24, 2009, Mungin was out of trust2 in the Coore matter, and Mungin‘s attorney trust account balance fell to $28.75.
On July 7, 2009, Mungin issued a second check to Coore in the amount of $451.97, drawn on Mungin‘s attorney trust account. On the same day, Coore and Mungin signed Coore‘s settlement report, which stated: “I HEREBY APPROVE THE ENTIRE SETTLEMENT AND DISTRIBUTION MADE HEREIN AND ASSUME FULL RESPONSIBILITY FOR ALL BILLS INCURRED BY ME IN CONNECTION WITH THIS ACCIDENT NOT LISTED ABOVE[.]” (Capitalization omitted). Coore‘s settlement report also stated: “Amended Settlement because
On July 14, 2009, Mungin issued checks to Coore‘s medical providers on Coore‘s behalf in the following amounts: $1,146 to Physiotherapy Associates; $109.12 to Doctor‘s Community Hospital; and $36.74 to Doctor‘s Community Hospital/ER Division. The check issued to Doctor‘s Community Hospital on Coore‘s behalf was mistakenly issued in the amount of $109.12, instead of $561.09. Mungin did not pay the remaining balance of $451.97 owed to Doctor‘s Community Hospital; and the second check to Coore on July 7, 2009, in the amount of $451.97, was issued in error and should have been issued to Doctor‘s Community Hospital instead.
Bruce Joyner Matter
On June 29, 2009, Mungin deposited into his attorney trust account a check in the amount of $7,200 on behalf of his client, Bruce Joyner (“Joyner“), received pursuant to a settlement in Joyner‘s personal injury case. Of the settlement funds, $4,678.32 was to be paid to Joyner‘s medical providers, and $2,258.68 comprised Mungin‘s attorney‘s fees. Specifically, $142.32 was to be paid to Laurel Regional Hospital Emergency Room, $299 was to be paid to Laurel Regional Hospital Doctors Visit, and $4,237 was to be paid to New Carrollton Therapy Center. On June 29, 2009, Joyner and Mungin signed Joyner‘s settlement report, which stated: “I HEREBY APPROVE THE ENTIRE SETTLEMENT AND DISTRIBUTION MADE HEREIN AND ASSUME FULL RESPONSIBILITY FOR ALL BILLS INCURRED BY ME IN CONNECTION WITH THIS ACCIDENT NOT LISTED ABOVE.” (Capitalization omitted). Joyner‘s settlement report listed distributions to the three medical providers, even though the liens were not satisfied until February 2010.
On July 6, 2009, Mungin issued to Joyner a check in the amount of $3,500, drawn on his attorney trust account. On October 22, 2009, Mungin issued to Joyner a second check in the amount of $298 as reimbursement of funds that Joyner had paid to an emergency room.
Waikia Williams Matter
On July 21, 2009, Mungin deposited into his attorney trust account a check in the amount of $8,700 on behalf of his client, Waikia Williams (“Williams“), received pursuant to a settlement in Williams‘s personal injury case. Of the settlement funds, $1,250.50 was to be paid to Williams‘s three medical providers, and $2,900 comprised Mungin‘s attorney‘s fees. From July 23, 2009, through July 29, 2009, Mungin transferred $3,850 from his attorney trust account to his operating account.
On July 29, 2009, Mungin issued to Williams a check in the amount of $4,549.50, drawn on his attorney trust account. On the same day, Mungin issued checks to two of Williams‘s medical providers on Williams‘s behalf in the amounts of $100.50 and $150. On December 11, 2009, Mungin‘s attorney trust account balance fell to $4.92, and the third medical provider had an outstanding lien in the amount of $1,000. From July 21, 2009, until February 16, 2010, Mungin was required to continuously maintain $1,000 in trust for payment to the third medical provider; Mungin failed to do so. On February 16, 2010, Mungin issued a check to the third medical
Jonathan Roberts Matter
On August 7, 2009, Mungin deposited into his attorney trust account a check in the amount of $8,500 on behalf of his client, Jonathan Roberts (“Roberts“), received pursuant to a settlement in Roberts‘s personal injury case. Of the settlement funds, $3,719.20 was to be paid to Roberts‘s medical providers, and $2,300 comprised Mungin‘s attorney‘s fees. Specifically, $1,719.20 was to be paid to Physiotherapy Associates (“Physiotherapy“), and $2,000 was to be paid to Bezak Chiropractic and Rehabilitation (“Bezak“). From August 7, 2009, through August 13, 2009, Mungin transferred $4,000 from his attorney trust account to his operating account. After receiving the settlement funds, Mungin received telephone calls from Physiotherapy and Bezak, which requested payment of their outstanding liens. Mungin failed to satisfy the liens at that time, and instead transferred funds that should have been used to satisfy the liens from his attorney trust account to his operating account.
On December 11, 2009, Mungin‘s attorney trust account balance fell to $4.92. On May 20, 2010, for the first time, Mungin disbursed settlement funds in the Roberts matter, when he issued to Roberts a check in the amount of $2,480, drawn on his attorney trust account. In September 2012, over three years after receiving the settlement funds, Mungin satisfied the medical liens owed to Physiotherapy and Bezak on Roberts‘s behalf. Specifically, on September 28, 2012, Mungin issued checks to Physiotherapy and Bezak on Roberts‘s behalf, drawn on his operating account because the funds had not been maintained in his attorney trust account.
Tekema Baker Matter
On or about October 29, 2009, Mungin deposited into his attorney trust account a check in the amount of $4,000 on behalf of his client, Tekema Baker (“Baker“), received pursu-
In December 2009, there were several dates on which Mungin failed to maintain $1,000 in his attorney trust account for the outstanding balance owed to Rising Health. On December 11, 2009, Mungin‘s attorney trust account balance fell to $4.92. Mungin‘s attorney trust account balance remained below $1,000 until December 15, 2009, when other client funds replenished Mungin‘s attorney trust account. On December 24, 2009, on Baker‘s behalf, Mungin finally issued to Rising Health a check in the amount of $1,000.
Michael Jenkins Matter
On November 24, 2009, Mungin deposited into his attorney trust account a check in the amount of $4,200 on behalf of his client, Michael Jenkins (“Jenkins“), received pursuant to a settlement in Jenkins‘s personal injury case. Of the settlement funds, $1,830 was to be paid to Rising Health, Jenkins‘s medical provider, and $1,300 comprised Mungin‘s attorney‘s fees. Between November 24, 2009, and December 9, 2009, Mungin transferred funds from his attorney trust account to his operating account. On December 9, 2009, after receiving a reduction from Rising Health (from $1,830 to $1,500), Mungin issued to Jenkins a check in the amount of $1,500, drawn on Mungin‘s attorney trust account.
On December 11, 2009, Mungin‘s attorney trust account balance fell to $4.92. As of March 19, 2010, Mungin‘s attor-
Robin Whitehurst Matter
On February 2, 2010, Mungin deposited into his attorney trust account a check in the amount of $7,000 on behalf of his client, Robin Whitehurst (“Whitehurst“), received pursuant to a settlement in Whitehurst‘s personal injury case. Of the settlement funds, $1,000 was to be paid to Optimum Care Center, Whitehurst‘s medical provider, and $2,800 comprised Mungin‘s attorney‘s fees. From February 2, 2010, through March 12, 2010, Mungin transferred $19,600 from his attorney trust account into his operating account. On March 12, 2010, Mungin issued to Whitehurst a check in the amount of $3,050, drawn on his attorney trust account.
From February 2, 2010, until June 4, 2010, Mungin was required to continuously maintain $1,000 in trust for the Whitehurst matter for payment to Optimum Care Center; Mungin failed to do so. As of March 19, 2010, Mungin‘s attorney trust account balance was $283.10. On April 22, 2010, Mungin‘s attorney trust account balance fell to $6.77. On June 4, 2010, on Whitehurst‘s behalf, Mungin finally issued to Optimum Care Center a check in the amount of $1,000. The check‘s issuance invaded funds deposited after receipt of the settlement funds in the Whitehurst matter.
Troy James Matter
On May 14, 2010, Mungin deposited into his attorney trust account a check in the amount of $14,000 on behalf of his client, Troy James (“James“), received pursuant to a settlement in James‘s personal injury case. Of the settlement funds, $2,501.80 was to be paid to Optimum Care, James‘s medical provider, and $4,666.66 comprised Mungin‘s attorney‘s
From May 28, 2010, through June 2, 2010, Mungin‘s attorney trust account balance was $18.98. During that time period, Mungin failed to maintain $2,000 in his attorney trust account for the outstanding balance owed to Optimum Care. On June 4, 2010, using other client funds deposited into his attorney trust account, on James‘s behalf, Mungin issued to Optimum Care a check in the amount of $2,000.
LaToya Evans Matter
On August 2, 2010, Mungin deposited into his attorney trust account a check in the amount of $4,750 and on August 3, 2010, Mungin deposited into his attorney trust account a check in the amount of $4,750; both checks were deposited on behalf of his client, LaToya Evans (“Evans“), received pursuant to a settlement in Evans‘s personal injury case. Of the settlement funds (totaling $9,500), $3,200 was to be paid to Align Spine Health Center (“Align Spine“), Evans‘s medical provider, and $3,000 comprised Mungin‘s attorney‘s fees. Between August 4, 2010, and August 14, 2010, Mungin transferred $6,350 from his attorney trust account to his operating account.
On August 30, 2010, Mungin issued a check to Evans in the amount of $3,500, drawn on Mungin‘s attorney trust account. Mungin should have maintained an additional $3,200 in his attorney trust account for the outstanding balance owed to Align Spine. As of September 2, 2010, however, Mungin‘s attorney trust account balance was $250.78. Thus, Mungin failed to continuously maintain $3,200 in trust for Align Spine. As of September 7, 2010, other client funds had replenished
Hearing Judge‘s Other Findings
Starting in late 2008, Mungin began experiencing a series of personal difficulties that impacted his ability to maintain the business portion of his solo practice. During that time period, Mungin reconciled his attorney trust account once a month, at best. In Fall 2008, Mungin‘s wife was arrested for drunk driving following a single-car accident. It was discovered that Mungin‘s wife suffered from alcoholism and would need to undergo treatment. This caused a strain on the marriage and eventually led to Mungin‘s and his wife‘s divorce in 2011. And, starting in 2009, Mungin‘s son4 began exhibiting symptoms of serious substance abuse, eventually leading to his son‘s placement into rehabilitation facilities. As a result of these difficulties, at the end of 2008, on numerous occasions, Mungin visited a psychologist.
Mungin did not deny that he mishandled his attorney trust account with respect to nine separate client matters. Mungin has since hired an accounting firm to help keep track of his books and reconcile his accounts. Mungin reconciles his attorney trust account weekly, and has not had any problems with his attorney trust account since Bar Counsel filed the Petition for Disciplinary or Remedial Action.
Numerous character reference letters were submitted on Mungin‘s behalf, including letters from judges in Prince George‘s County and from practicing attorneys.5 All of the letters’ authors describe Mungin as trustworthy. The evidence was insufficient to support a finding that Mungin en-
STANDARD OF REVIEW
In an attorney discipline proceeding, this Court reviews for clear error the hearing judge‘s findings of fact, and reviews without deference the hearing judge‘s conclusions of law. See
As to exceptions, in Attorney Grievance Comm‘n v. Bocchino, 435 Md. 505, 529, 80 A.3d 222, 235 (2013), we recently reiterated:
When a party files exceptions to the hearing judge‘s findings of fact, those exceptions will be overruled so long as the findings are not clearly erroneous. When a party takes exception to the hearing judge‘s conclusions of law, those exceptions will be overruled so long as the conclusions are supported by the facts found.
(Citations omitted).
DISCUSSION
A. Findings of Fact
Mungin does not except to any of the hearing judge‘s findings of fact. The Commission excepts to the hearing judge‘s finding that Mungin visited a psychologist on numerous occasions at the end of 2008. We sustain the exception. The record demonstrates that, despite Mungin‘s testimony that he visited a psychologist, in actuality, from September 2008 through December 2008, Mungin visited Fritz Gollery, a Licensed Clinical Professional Counselor, at Christian Coun-
B. Conclusions of Law
Mungin does not except to any of the hearing judge‘s conclusions of law. The Commission excepts to the hearing judge‘s conclusion that Mungin did not violate MLRPC 8.4(c). For the below reasons, we overrule the exception and uphold all of the hearing judge‘s conclusions of law.
MLRPC 1.1 (Competence)
“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” MLRPC 1.1. A lawyer‘s “failure to properly maintain [a client‘s] settlement monies in his [or her attorney trust] account demonstrates his [or her] incompetence pursuant to [MLRPC] 1.1.” Attorney Grievance Comm‘n v. James, 385 Md. 637, 662, 870 A.2d 229, 244 (2005) (citation and internal quotation marks omitted) (first alteration in original). A lawyer fails to properly maintain a client‘s settlement monies in an attorney trust account by having a negative attorney trust account balance and not maintaining sufficient funds in the attorney trust account for payment to clients. See id. at 662, 870 A.2d at 244.
Here, clear and convincing evidence supports the hearing judge‘s conclusion that Mungin violated MLRPC 1.1. Mungin failed to properly maintain clients’ settlement monies in his attorney trust account. On two occasions, December 11, 2009, and March 21, 2011, Mungin‘s lack of attention to, and proper maintenance of, his attorney trust account resulted in a nega-
Specifically, on Coore‘s behalf, Mungin erroneously issued to Doctor‘s Community Hospital a check in the amount of $109.12, instead of $561.09, the amount owed. Mungin failed to pay the remaining balance, resulting in a lien owed to Doctor‘s Community Hospital. In addition, despite depositing settlement funds into his attorney trust account on May 11, 2009, Mungin did not issue checks to medical providers on Coore‘s behalf until July 14, 2009. In the Joyner matter, despite depositing settlement funds into his attorney trust account on June 29, 2009, Mungin did not issue checks to medical providers on Joyner‘s behalf until February 16, 2010. In the Williams matter, despite depositing settlement funds into his attorney trust account on July 21, 2009, Mungin did not issue a check to one of Williams‘s three medical providers on Williams‘s behalf until February 16, 2010. In the Roberts matter, despite depositing settlement funds into his attorney trust account on August 7, 2009, Mungin did not issue checks to Physiotherapy and Bezak on Roberts‘s behalf until September 28, 2012, over three years after receipt of the funds. In the Baker matter, despite depositing settlement funds into his attorney trust account on October 29, 2009, Mungin did not issue a check to Baker‘s medical provider on Baker‘s behalf until December 24, 2009. In the Jenkins matter, despite depositing settlement funds into his attorney trust account on November 24, 2009, Mungin did not issue a check to Jenkins‘s medical provider on Jenkins‘s behalf until April 13, 2010. In the Whitehurst matter, despite depositing settlement funds into his attorney trust account on February 2, 2010, Mungin did not issue a check to Whitehurst‘s medical provider on Whitehurst‘s behalf until June 4, 2010. In the James matter, despite depositing settlement funds into his attorney trust account on May 14, 2010, Mungin did not issue a check to James‘s medical provider on James‘s behalf until June 4, 2010. And, in the Evans matter, despite depositing settlement funds into his attorney trust account on August 2, 2010, and August
Finally, Mungin failed to maintain sufficient funds in his attorney trust account for payment to medical providers; i.e., Mungin was out of trust in client matters. For example, in the Baker matter, in December 2009, there were several dates on which Mungin failed to maintain $1,000 in his attorney trust account for the outstanding balance owed to Rising Health. On December 11, 2009, Mungin‘s attorney trust account balance fell to $4.92. Mungin‘s attorney trust account balance remained below $1,000 until December 15, 2009, when other client funds replenished Mungin‘s attorney trust account. On December 24, 2009, on Baker‘s behalf, Mungin finally issued to Rising Health a check in the amount of $1,000.
MLRPC 1.15(a) and 1.15(d) (Safekeeping Property)
MLRPC 1.15(a) provides:
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, and records shall be created and maintained in accordance with the Rules in that Chapter. Other property shall be identified specifically as such and appropriately safeguarded, and records of its receipt and distribution shall be created and maintained. Complete records of the account funds and of other property shall be kept by the lawyer and shall be preserved for a period of at least five years after the date the record was created.
“MLRPC 1.15(a) requires an attorney to maintain client funds in a trust account, separate from the attorney‘s personal and operating funds.... [A lawyer]‘s failure to maintain his [or her] trust account separately from his [or her] personal funds [] violates MLRPC 1.15(a).” Attorney Grievance Comm‘n v. Moeller, 427 Md. 66, 73, 46 A.3d 407, 411 (2012) (citations omitted).
Upon receiving funds or other property in which a client or third person has an interest, a lawyer 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 deliver promptly to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall render promptly a full accounting regarding such property.
A lawyer violates MLRPC 1.15(d) by “fail[ing] to promptly deliver settlement funds to [a] client and to medical providers[,]” and by failing to “pay a client‘s debt from settlement funds[.]” Attorney Grievance Comm‘n v. Roberts, 394 Md. 137, 163-64, 904 A.2d 557, 573 (2006).
Here, clear and convincing evidence supports the hearing judge‘s conclusion that Mungin violated MLRPC 1.15(a) and 1.15(d). As to MLRPC 1.15(a), Mungin failed to hold property of clients or third parties in trust separate from his own property. Indeed, on several occasions, Mungin transferred funds from his attorney trust account to his operating account, even though the funds should have been held in trust for the third-party medical providers. For example, in the Williams matter, on July 21, 2009, Mungin deposited the settlement check received on Williams‘s behalf. Of the settlement funds received, $1,250.50 was to be paid to Williams‘s three medical providers and $2,900 comprised Mungin‘s attorney‘s fees. From July 23, 2009, through July 29, 2009, Mungin transferred $3,850 from his attorney trust account to his operating account. In other words, Mungin transferred funds due and owing to Williams‘s medical providers to himself via his operating account instead of holding the funds in his attorney trust account for payment to Williams‘s medical providers.
As to MLRPC 1.15(d), Mungin failed to promptly deliver to clients and third-party medical providers settlement funds to which they were entitled. For example, in the Roberts mat-
MLRPC 8.4(b) (Criminal Act)
MLRPC 8.4(b) provides: “It is professional misconduct for a lawyer to ... commit a criminal act that reflects adversely on the lawyer‘s honesty, trustworthiness or fitness as a lawyer in other respects[.]”
Here, the hearing judge was correct in concluding that clear and convincing evidence did not establish that Mungin had violated MLRPC 8.4(b). Nothing in the hearing judge‘s findings of fact indicates that Mungin committed a criminal act or engaged in criminal activity.7
MLRPC 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation)
MLRPC 8.4(c) provides: “It is professional misconduct for a lawyer to ... engage in conduct involving dishones-
Here, the hearing judge concluded that Mungin had not violated
There is no evidence in this case that supports a finding that [Mungin] engaged in any conduct involving dishonesty, fraud, deceit, or misrepresentation. It is this Court‘s finding that [Mungin] negligently mishandled his trust account on numerous occasions which led to the Rule violations enumerated above. The sole evidence that Bar Counsel presented to provide a violation of
[MLRPC] 8.4(c) was the fact that [Mungin] had his clients sign statements of account which showed amounts due to healthcare providers which had not yet been paid. The uncontroverted testimony in this case was that [Mungin] never told his clients that those funds had already been paid at the time they signed the statements of account. Therefore, the Court does not find any evidence of dishonesty, fraud, deceit, or misrepresentation in the handling of those statements of account.
Bar Counsel contends that the hearing judge‘s findings establish that Mungin engaged in intentional misappropriation of funds in violation of
Mungin responds that, before the hearing judge, Bar Counsel argued only that he violated
We overrule Bar Counsel‘s exception and explain. At the hearing, during opening statement, Bar Counsel argued that Mungin violated
During closing argument, Bar Counsel contended that the errors with Mungin‘s attorney trust account were not “small errors just based on negligence[,]” and that Mungin had knowledge of outstanding liens owed to medical providers, but “intentionally did not pay the lien holders and, instead, [] transferred his fees from the trust account to the operating account.” Bar Counsel specifically argued that Mungin violated
As to the transfer of funds from his attorney trust account to his operating account, the Joint Stipulation of Facts that the parties submitted to the hearing judge states that the transfers of funds from Mungin‘s attorney trust account to his operating account following disbursement of settlement funds involved transfer of attorney‘s fees arising from various client matters, not just in connection with the personal injury matter that had been settled. Thus, clear and convincing evidence does not establish that Mungin intentionally misappropriated funds in a particular client matter after receipt and deposit of the settlement funds by, for example, transferring all or more than his attorney‘s fees in that particular client matter. And, in the Roberts matter, as to the liens that were paid to Physiotherapy and Bezak years after settlement funds had been received, at the hearing, Mungin testified that, although he received telephone calls from the medical providers concerning the liens after the settlement funds were deposited into his attorney trust account, it was not until Bar Counsel‘s audit in 2012 that he realized the medical providers had not been paid. Mungin testified that, once he realized the liens had not been paid, he paid them on Roberts‘s behalf. In other
On this record, we will not disturb the hearing judge‘s conclusion that clear and convincing evidence did not establish that Mungin had violated
MLRPC 8.4(d) (Conduct That Is Prejudicial to the Administration of Justice)
Here, clear and convincing evidence supports the hearing judge‘s conclusion that Mungin violated
Significantly, before the hearing judge, Bar Counsel argued only that Mungin intentionally misrepresented facts on settlement memoranda and intentionally misappropriated funds. In other words, Bar Counsel contended only that Mungin violated
MLRPC 8.4(a) (Violating the MLRPC)
“It is professional misconduct for a lawyer to[] violate or attempt to violate the [MLRPC], knowingly assist or induce another to do so, or do so through the acts of another[.]”
Here, clear and convincing evidence supports the hearing judge‘s conclusion that Mungin violated
Maryland Rule 16-609 (Prohibited Transactions)
a. Generally. An attorney or law firm may not borrow or pledge any funds required by the Rules in this Chapter to be deposited in an attorney trust account, obtain any remuneration from the financial institution for depositing any funds in the account, or use any funds for any unauthorized purpose.
b. No cash disbursements. An instrument drawn on an attorney trust account may not be drawn payable to cash or to bearer, and no cash withdrawal may be made from an automated teller machine or by any other method. All disbursements from an attorney trust account shall be made by check or electronic transfer.
c. Negative balance prohibited. No funds from an attorney trust account shall be disbursed if the disbursement would create a negative balance with regard to an individual client matter or all client matters in the aggregate.
Here, clear and convincing evidence supports the hearing judge‘s conclusion that Mungin violated
As to
Finally, as to
BOP § 10-306 (Trust Money Restrictions)
Here, clear and convincing evidence supports the hearing judge‘s conclusion that Mungin violated
C. Sanction
Bar Counsel recommends that this Court disbar Mungin. At oral argument, Bar Counsel conceded that, if we overrule the exception to the hearing judge‘s conclusion that Mungin had not violated
In Dore, 433 Md. at 717, 73 A.3d at 180, we stated:
When we impose sanctions, our goal is not to punish the [lawyer], but rather to protect the public and the public‘s confidence in the legal profession [and] to deter other lawyers from violating the [MLRPC]. To achieve this goal, the sanction should be commensurate with the nature and the gravity of the misconduct and the intent with which it was committed. In determining an appropriate sanction, we often refer to the American Bar Association‘s Standards for Imposing Lawyer Sanctions, which focus on the nature of the ethical duty violated, the lawyer‘s mental state, the extent of the actual or potential injury caused by the lawyer‘s misconduct, and any aggravating or mitigating [factor]s.
(Second alteration in original) (citations and internal quotation marks omitted).
Here, as to the nature of the ethical duty violated, Mungin violated
In Attorney Grievance Comm‘n v. Davy, 435 Md. 674, 710, 80 A.3d 322, 342-43 (2013), we stated:
Aggravating factors include: (a) prior disciplinary offenses; (b) dishonest or selfish motive; (c) pattern of misconduct; (d) multiple offenses; (e) bad faith obstruction of the [attorney] disciplinary proceeding[] by intentionally failing to comply with rules or orders of the [Commission]; (f) submission of false evidence, false statements, or other deceptive practices during the [attorney] disciplinary proce[eding]; (g) refusal to acknowledge wrongful nature of conduct; (h) vulnerability of the victim; (i) substantial experience in the practice of law; [and] (j) indifference to making restitution.
(Some alterations in original) (citation and paragraph breaks omitted).
Here, we note that the hearing judge did not find any aggravating factors. Upon our independent review, the only aggravating factors that we discern are that Mungin engaged in a pattern of misconduct related to nine separate client matters and committed multiple offenses by violating several
The following constitute mitigating factors:
(a) absence of a prior disciplinary record; (b) absence of a dishonest or selfish motive; (c) personal or emotional problems; (d) timely good faith efforts to make restitution or to rectify consequences of misconduct; (e) full and free disclosure to [the Commission] or cooperative attitude toward [the attorney discipline] proceeding[]; (f) inexperience in the practice of law; (g) character or reputation; (h) physical disability; (i) mental disability or chemical dependency in
cluding alcoholism or drug abuse when: (1) there is medical evidence that the [lawyer] is affected by a chemical dependency or mental disability; (2) the chemical dependency or mental disability caused the misconduct; (3) the [lawyer]‘s recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and (4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely; (j) delay in [the attorney] disciplinary proceeding[]; (k) imposition of other penalties or sanctions; (l) remorse; [and] (m) remoteness of prior offenses.
Davy, 435 Md. at 712-13, 80 A.3d at 344 (some alterations in original) (citation and paragraph breaks omitted).
Here, although the hearing judge did not label her findings as mitigation, the hearing judge detailed facts concerning Mungin‘s personal difficulties beginning in 2008, Mungin‘s trustworthy character as supported by character reference letters, and Mungin‘s lack of dishonesty, fraud, or deceit. Upon our independent review, we determine that the record establishes the following mitigating factors: absence of a prior disciplinary record, personal problems, and character.
In DiCicco, 369 Md. at 688, 686, 666, 802 A.2d at 1028, 1027, 1016, even though the Commission recommended disbarment, this Court indefinitely suspended from the practice of law with the right to apply for reinstatement after ninety days a lawyer who violated
In Attorney Grievance Comm‘n v. Sperling, 380 Md. 180, 193, 183-84, 844 A.2d 397, 405, 399 (2004), this Court indefinitely suspended from the practice of law with the right to apply for reinstatement after ninety days a lawyer who violated
Here, Mungin‘s mishandling of his attorney trust account in connection with nine separate client matters over a sustained period of time, as well as his withdrawal of cash from the attorney trust account, are serious matters. Mungin‘s misconduct, however, was determined to be due to negligence; i.e., Mungin‘s misconduct did not result in a finding of intentional dishonesty, fraud, or deceit. Mungin‘s character for trustworthiness was attested to in numerous character letters submitted on Mungin‘s behalf from judges and practicing lawyers. In addition, Mungin‘s misconduct occurred during a period of personal difficulties in his life involving his wife and teenaged son. The hearing judge found that Mungin‘s personal life has stabilized, and Mungin has taken steps to ensure that his attorney trust account is properly maintained, including reconciling his account on a weekly basis and hiring an accounting firm to assist with bookkeeping and reconciliation. Considering these circumstances, and determining that Mungin‘s misconduct merits a sanction that is greater than the indefinite suspension with the right to apply for reinstatement after ninety days in DiCicco and Sperling, we conclude that the appropriate sanction for Mungin‘s violations of
IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING COSTS OF ALL TRANSCRIPTS, PURSUANT TO
HARRELL and BATTAGLIA, JJ., concur.
I join reluctantly the Court‘s opinion. Although I can find no fault with the opinion, I write separately to note that, on this record, although no
At oral argument, we posed to Bar Counsel and Mungin‘s Counsel several questions regarding the three cash withdrawals Mungin made from his trust account within a six-day span in May 2010. Although the lawyers were in agreement that those three cash withdrawals violated
Upon my post-argument review of the record, it turns out that the state of counsels’ recollection at argument could be explained by a dearth of evidence regarding the cash withdrawals. I located only two pieces of evidence regarding the cash withdrawals: (1) a transactional summary of Mungin‘s trust account showing, among all of his other transactions, that he made cash withdrawals of $100.00, $200.00, and $200.00 on 7, 10, and 12 May 2010, respectively; and, (2) an entry in the parties’ Joint Stipulations before the hearing judge stating that “[i]n May 2010, [Mungin] made three (3) cash withdrawals
In my view, the cash withdrawals are highly suggestive of intentional misappropriations of trust funds. Intentional misappropriations violate
Bar Counsel did not argue, however, that the cash withdrawals constituted
Rather, Bar Counsel argued that the alleged
Judge BATTAGLIA authorizes me to state that she joins the views expressed in this concurring opinion.
96 A.3d 142
ATTORNEY GRIEVANCE COMMISSION OF MARYLAND, Petitioner
v.
Laura Elizabeth JORDAN, Respondent.
Misc. Docket AG No. 71, Sept. Term, 2013.
Court of Appeals of Maryland.
July 18, 2014.
ORDER
The Court having considered the Joint Petition of the Attorney Grievance Commission of Maryland and Respondent, Laura Elizabeth Jordan, Esquire to indefinitely suspend the Respondent from the practice of law with a right to reapply in eighteen (18) months, it is this 18th day of July, 2014,
ORDERED, by the Court of Appeals of Maryland, a majority of the Court concurring, that the Respondent, Laura Elizabeth Jordan, be, and she is hereby indefinitely suspended by
Notes
Here, although the hearing judge found that Mungin‘s mishandling of his attorney trust account was negligent, the hearing judge did not find that Mungin engaged in any conduct—intentional or negligent—involving dishonesty, fraud, deceit, or misrepresentation; i.e., unlike in Calhoun, 391 Md. at 570, 894 A.2d at 540, there was no finding of intentional or negligent dishonesty, fraud, deceit, or misrepresentation.