*1
(Rule
abrogated)
fully
West
Virginia
Coffindaffer v.
(Rule
fully
abrogated)
Coffindaffer,
W.Va.
No. 2002. Appeals Maryland. Court of
Aug. *3 Hirshman, Melvin Bar and Ridgell, Counsel and O. Dolores Assistant Bar Attorney Counsel for the Grievance Commission of Maryland, petitioner. Gordon, Baltimore,
Eric Esquire, for respondent. BELL, C.J., Argued ELDRIDGE, RAKER, before WILNER, CATHELL, BATTAGLIA, HARRELL and JJ.
RAKER, Judge. Commission, Grievance acting through Bar Counsel, filed in this Court a for Disciplinary Action, Petition 16-709, P. alleging that Robert Maryland Rule pursuant Conduct Maryland Rules of Professional Thompson violated Interest) (Safekeep (Conflict 1.15 (Competence)2, 1.1 1.8 8.4(d) (Misconduct)4. Mary Pursuant ing property)3, M. 16-752(a), Judge referred matter we land Rule City to for Baltimore Murdock of Circuit Brooke Following an of law. fact conclusions findings make con by found clear and Murdock evidentiary hearing, Judge Rules 1.15 and had violated evidence that vincing 8.4(d).5 of Fact following Findings made the Judge Murdock omitted). (footnotes of Law. and Conclusions Interest: Prohibited Transactions 1.8. Conflict of Rule limiting "(h) agreement prospectively lawyer not make an A shall permitted law malpractice unless lawyer’s liability to a client for represented making agreement, in independently client and the is unrepresented or liability an client a with or settle claim such advising person writing inde- that client without first former appropriate connection therewith.” pendent representation is Competence 2. Rule 1.1. representation to a client. Com- provide competent lawyer "A shall skill, thorough- legal knowledge, petent representation requires the necessary representation.” reasonably for the preparation ness and Safekeeping property 3. Rule 1.15. "(a) persons or lawyer property hold of clients third A shall separate possession representation a lawyer’s connection separate kept lawyer’s property. shall be in a own Funds Mary- pursuant Chapter 600 of the to Title account maintained appropri- property identified as such and Other shall be land Rules. and of safeguarded. Complete of such account funds ately records preserved for kept by lawyer and be property be shall other shall representation. period years the termination of five after property in a client or third "(b)Upon receiving other which funds or interest, promptly notify lawyer the client person has shall an *4 permitted by Except as Rule or otherwise person. stated in this third client, lawyer promptly by agreement deliver law with the shall property that the person any or other client or third funds and, by upon request person is to receive client or third entitled regard- accounting promptly a full person, third render client or shall ing property.” such 4. Rule 8.4. Misconduct "(d) engage lawyer professional for a to: "It is misconduct justice; ...” prejudicial of to the administration conduct is 1.8 allegation of a violation of Rule Bar Counsel dismissed (Conflict Interest) hearing Judge before Murdock. of OF FACT
“FINDINGS AND CONCLUSIONS LAWOF INTRODUCTION (‘Peti- “The Attorney Grievance Commission of Maryland tioner’), filed a Petition for Disciplinary pursuant Action 16-709, alleging Md. Rule that Robert P. Thompson violated 8.4(d) 1.8, 1.15, of the Maryland Rules of Professional (‘MRPC’). Conduct Pursuant an Order from the Court Appeals of dated March the Petition for disciplin- ary action was transmitted to this Court a hearing, which was on conducted October 2002. The Petitioner represented by Dolores Ridgell, O. Thompson Robert represented himself. parties
“The stipulated to the admission of the bank (‘the Estate’), records for the of Maye Estate Ida Redd spreadsheet summarizing activity accounts, the bank a certified copy Orphans’ Estate, file for copies filings various and the Orders in the Estate. testimony Petitioner an expert, Gibber, offered Allan Esq., transcript deposition Gail Davis and other documentary Thompson evidence. Mr. in his testified own defense.
STANDARD OF PROOF 710(d) “Maryland Rule provides that ‘the 16— charges governed by law, rules of same evidence and procedure as applicable are trial of civil proceedings in equity. findings Factual shall be supported clear and convincing evidence.’
“However, defense, in establishing a Respondent need matters, only prove factual including the existence of miti- circumstances, gating by a preponderance of the evidence. Bakas, Attorney Comm’n Grievance v. 322 Md. 52, modified, A.2d (1991); Md. 593 A.2d 1087 Powell, Grievance Comm’n 328 (1992). *5 FACT
FINDINGS OF have following facts been “The finds that Court convincing evidence. by clear established 16, 1978, Thompson (‘Respon- Mr. Robert “On November dent’) Appeals of the was admitted the Bar aas sole operated From 1989 to he Maryland. 1993, Respondent August, City. in Baltimore practitioner & P.A. Thompson Sugar, as began doing business TAXES 1993, Respondent through tax “During years and withheld Federal and one or more employed employees employees. salaries of those Maryland State taxes from the However, 1993, Respondent years through the tax for funds, separate account hold the failed maintain trust, governments to the and State funds owed Federal withholding taxes to the pay State Federal Further, during years the tax government, as due. file Respondent failed to withhold- through quarterly required in a manner each ing reports timely tax withholding employee amount of the taxes quarter. The for 1989-1993 Maryland by Respondent owed to State $11,000. inwas excess of
“Maryland Treasury (‘Comptroller’) Comptroller repeatedly Respondent obligation notified of this and re- income withheld from his quested that he remit the taxes against employees. Comptroller The instituted a lien Re- made other efforts. On October spondent and collection Comptroller Respon- informed the Petitioner Prior the disciplinary to the institution of dent’s conduct. action, withholding satisfied his Federal tax 26, 2002, liability. July he satisfied the State withhold- On present law firm ing obligation. Respondent’s tax has handled taxes payroll properly. OF IDA MAYE REDD
ESTATE “Respondent May May drafted Redd’s will dated Ida 5, 1996. January 1995 and a codicil to will dated codicil to Ms. Redd’s will named Robert Thompson, Respon- dent, Davis, sister, and Geneva Ms. Redd’s as personal representatives. 21,1996, Redd, On January Ms. a resident *6 children, City, Having Baltimore died. no Ms. Redd left sister, nieces, to bequests her nephews, stepsons and friends. Ms. Redd’s estate was valued at approximately $488,000, $470,000 of which approximately in was held bank 7, 1996, and investment accounts. February On Respon- dent filed a Petition for Probate of the Redd Estate. Re- spondent and Ms. Davis were appointed co-personal repre- sentatives of the Redd Estate. Ms. Davis was 70 or 71 at the time she was co-personal named representative. She had a in degree education and was a retired school teacher. She legal death, had no training. After her sister’s Ms. Davis sent all of Ms. personal Redd’s property Georgia to to placed be in storage. 8, 1996, February
“On Respondent and Ms. Davis trav- eled to various financial institutions to collect the estate assets. They opened an Estate account at First Fideli- ty/First Union Bank on February from which both Respondent or Ms. Davis could make withdrawals. Re- spondent and Ms. Davis withdrew funds from Ms. Redd’s accounts at First Fidelity Also, Bank Signet Bank. 8, 1996, on February account, a Provident Bank which was in jointly titled the names of the decedent and Ms. Davis, was closed. The balance in the Provident Bank $27,387.28. account was The Provident Bank records in- dicate Ms. signed Davis slip debit and withdrew the entire balance. This account was not listed on the Infor- Report mation filed the Orphans’ Respon- dent and Ms. Davis on February
“In February, Ms. Davis became ill and was diag- nosed pancreatic cancer. She was hospitalized until April, when she daughter’s went to her home. Ms. Davis extremely weak through and fed a feeding tube. Davis, Ms. Gail daughter, her assisted her in making entries register. the Estate check Ms. Gail Davis played no role in administrating the estate. for the 8, 1996, inventory an May Respondent filed
“On request, a check Respondent’s May Estate. On $1,000 from the Respondent was sent to in the amount of account, for a expenses him for travel compensate Estate 1, 1996, Respondent traveled Georgia. On June trip heirs, Georgia, he with some Albany, where met Noble, Davis, Davis, Melvin Gail Alma including Geneva Respondent gave Kay Regina Johnson. George, McGee had Davis Account and Ms. copy out a the Administration meet- During checks. begin prepare the distribution she why about questioned Respondent one of the heirs ing, bracelet, specific bequests one of the had not received of his will; her out Ms. Redd’s offered $500 preparing lieu of the bracelet. While commission Davis ill and at the Ms. became meeting, distribution checks daughter Respondent, where returned home with her 3,1996, Davis the checks. Ms. writing she finished On June *7 week. following into a coma and died lapsed $36,834.96 result, been totaling “As a before taxes had Af- Respondent distributed the assets of Estate. paid, expenses paid, the distributions and were the assets ter $35,537.65. enough Estate totaled order to recover taxes, pay Respondent subsequently the Estate to heirs, including Davis judgments against obtained Ms. daughter, judgments, Davis. a of the and her Gail As result shares; portion of their some of heirs returned could only paid Respon- some did not. The taxes be after he for expenses dent returned travel received $800 judgment collected Georgia against some of the going result, As than some her heirs received more the heirs. share of her heirs received less than their their and some share. Respondent Maryland
“After had on June returned Ms. Davis’ that he had over- daughter he notified Respondent that Ms. requested looked one the heirs. it daughter send to him prepare Davis’ check and Maryland signature. Respondent This was done. held the Estate assets from 1996 until the paid taxes were in an account pay that did not interest.
“At the June 1996 meeting, Respondent received a check from $16,000 the Estate in the amount of in payment of a Representative’s fee, Personal commission for which no Court, authorization from the Orphans’ date, as of that had been requested. On June Respondent filed a Petition for Allowance of Personal Representative’s Com- mission, requesting approval of commissions in the amount $18,669.74. agreement Pursuant to the of the co-personal representatives, $2,000 Ms. Davis had received Respon- $16,669.74. dent had 21, 1998, received September On Orphans’ Court Petition, denied the leave refile when administration of the Estate completed. Respon- dent $16,000 did not return the commission he received on June 1996 to the Estate. Subsequently, later, years five 3, 2002, on October Orphans’ approved payment of the commission.
“Ms. Davis’ daughter called several times in December, 1996. Respondent did not return her calls. On 8, 1997, January Ms. daughter Davis’ wrote to Respondent questioned him why her mother given had been a check $101,101.40 when the accounting provided by Respon- dent $124,726.73. showed a distribution of Respondent did not answer the letter. February 25, 1997,
“On Ms. daughter Davis’ again. wrote No answer was received. Subsequently, Respondent re- quested that daughter him send the bank statements she had relating to the Redd Estate bank accounts. She *8 17,1997. sent them on March “During a telephone conversation in August, 1997, Re- spondent told Ms. daughter Davis’ that a mistake had been regard made with to the inheritance tax. On September 1997, Respondent asked Ms. Davis’ daughter to prepare two checks, payable to the Register of Respondent Wills. ex- plained that he needed these checks replace to the checks written to the Register 1,1996. of onWills June OF LAW
CONCLUSIONS payroll the taxes and the Redd handling “In the course 8.4(d) 1.15, the Estate, Rules Respondent violated As his han- to of Professional Conduct. Maryland Rules taxes, to Pursuant 1.15 was violated. dling payroll of the Md. Tax General Article §§ and 10-906 10-817 Code, to income taxes required Ann withhold Respondent sepa- them in a and maintain from his salaries employees’ to failed do so. He the State. He rate account trust duty Maryland to State of fiduciary violated his further the funds promptly not deliver to the State when he did employees. collected his Respondent had Estate, regard Respondent to the violated “With Redd timely to in a reports 8.4 He failed file Rules 1.15 and §§ and 7-305 Estates & Trust pursuant manner to 7-301 (1997 The first Repl.Vol.2000 Supp.). Art. Ann. Md.Code Orphans’ Court accounting only was after the Estate filed Deficiency was to a Notice of and Show Cause forced issue was closed until 2002. Order. The Estate not accounts which failed list the various “Respondent at the time of Ms. the Estate’s cash assets were maintained Report by Respondent filed Inventory Redd’s death. The Furthermore, checking only listed Estate accounts. concerning not closed ac- keep did records counts. on For Accountings. failed correct
“He
errors
travel
on the first
example,
expense reported
the $800
accounting, which
was not allowed
subsequently,
but,
Orphans’ Court,
accounting;
on the next
removed
changed. Respondent
were not
failed to accurate-
totals
to the heirs
ly calculate
various distributions owed
enough
satisfy
obligations.
the tax
failed
reserve
incur-
miscalculations resulted
the Estate
Respondent’s
cost,
delayed
payment
collection
the taxes and
ring
Estate,
some heirs to receive
closure
and caused
less
which
were entitled. The
they
than
distribution to
the time of the
paid
Estate taxes
been
should have
*9
Page
distribution.
v. Comptroller
the Treasury, 270 Md.
(1974). Further,
“Respondent comply failed to duty as personal representative of the Estate to report joint account of Ms. Redd and her sister on the Accounting Information Report in February, if, he filed 1996. Even Respondent as testified, he did not know about the account until after the paperwork filed, had been he was required to file an amend- ed report once he became aware of it.
“Without obtaining prior approval of Orphans’ required § by 7-601 Estates & Trusts Article (1997 Md.Code Ann. Repl.Vol.2000 Supp.), Respondent re- personal representative ceived commissions from the Es- tate. Respondent did not return these funds even after his Petition for Allowance was denied on September again on May Further, although he had been $1,000, paid Respondent reported on the Accounting a travel expense of Even after the expense $800. disallowed Court, Orphans’ he failed to return these monies to the Estate.
“MRPC 1.15 requires that an attorney maintain complete records of account funds for period representation years five after termination of representation. This was not done. Respondent Davis, relied on Ms. an ill and elderly sister of the decedent to maintain the records. Davis, Respondent and Ms. in February, 1996 went to at least three banks and closed accounts. No kept record was of those accounts. Further Respondent did not render a prompt complete accounting of other accounts.
“MRPC 1.15 also requires property of the client shall be kept separately from $16,000 the attorney’s. $1,000 commission and the for travel expenses, received, remained Estate assets until payment of com- missions was approved by the Orphans’ Court. Not until December, 2001 did Respondent return of these funds $800 to the only Estate and then because taxes had to be paid.
5H in con- 8.4(d) engaging a lawyer prohibits “MRPC justice. to the administration prejudicial duct which handled, and the taxes promptly was not Estate The Redd it When paid Respondent’s [sic]. due promptly not were *10 to be assets would have Estate apparent that the became satisfy obligation, Respondent its tax in reclaimed order a of portion than return rather judgments to obtain chose received with- had $16,000 prematurely he commission approval. out Court convincing evi- finds clear and this Court
“Therefore of Rules Maryland has violated Respondent that dence 8.4(d).” 1.15 Professional Conduct judge’s proposed hearing to the excepted Both have parties of law. conclusions
II.
attorney discipline
over
original jurisdiction
This Court has
Seiden,
v.
Comm’n
373
Attorney Grievance
proceedings. See
(2003).
of
A.2d
1111
the exercise
Md.
an
review of the
independent
we
responsibility,
our
conduct
accept
hearing
We Rule Bar Counsel maintains that in not judge finding erred Rule 1.1 argues was violated. Bar Counsel that Judge Mur dock’s fact findings support the conclusion that respondent provide competent did not representation. not suggests he did violate Rule 1.1 be- proof
cause no of any pattern there was han- improperly dling case, estate and that handling matters one stand- alone, ing support finding does not He incompetency. maintains that conduct akin was more to a lack of thor- oughness or preparation.
Respondent’s position meritless. While he is correct that single mistake not result in necessarily does violation 1.1, Rule may constitute but not negligence misconduct *11 rule, under the is not simple such the case before us. A review of respondent’s handling of this estate leads to the inescapable that incompetent. conclusion he was
Judge Murdock,found facts, by clear and convincing evi- dence, demonstrating that respondent’s handling of the estate of Redd was competent. Respondent not failed to file reports manner; in a timely filed the first accounting only after the order; issuance of a of Deficiency Notice and a show cause failed to list the various accounts which estate assets were at maintained the time death decedent’s on the estate inventory not keep accounts; and did records of these to failed correct errors in his accountings; miscalculated the various distributions which caused the estate to incur collection costs and delayed estate; payment taxes and closure of the caused some heirs receive less than the distribution entitled; which they were pay failed to the estate taxes at the distribution; time of paid himself a commission and travel expense before approval by reimbursement the Orphans’s Court; and held assets from estate 1996 until the taxes were paid in a bearing addition, non-interest account. respon- dent joint did not report account of her decedent and report information and failed February 1996 on the sister became aware of report when he information file an amended the account. Respondent’s is sustained. exception
Bar Counsel’s he that convincing evidence actions demonstrated clear handling of the Ms. competently in his estate did not act an aggravating is pattern A of misconduct considered Redd. circumstance, Bar Association’s Standards see American (1992), Aggravating § Cir 9.22 Lawyer’s Sanctions Imposing to the sanction cumstances, ordinarily is more relevant has been violated. of whether rule inquiry than to the initial Ficker, 305, 313, Attorney Grievance Comm’n. (1990). case, conduct is In any respondent’s Although an isolated incident negligence. more than mere confusion, diligence, oversight or be of lack of may reflective case, acts of misconduct within respondent’s cumulative this from an isolated incident this same case are different Moreover, his in harm to his client neglect. actions resulted the heirs. judge’s failure to excepts hearing Bar also to the Counsel pay employee failure to respondent’s find withhold 8.4(d), prejudicial a violation of Rule conduct taxes constituted justice. agree with Bar Counsel to the administration We exception. and shall sustain Judge before Murdock undisputed
It or withheld respondent employed employees, one more salaries, and failed employees’ federal and state taxes monies, the funds separate to maintain a account hold trust, taxes entities. It pay governmental *12 a timely also that he failed to file in manner undisputed the quarterly reports tax as law. He owed State required $11,000.00 withholding Maryland employee in excess of hearing judge’s findings The period taxes for the 1989-1993. surrounding respon- set the facts great of fact forth detail the these taxes. comply regarding dent’s failure to law to withhold taxes Respondent argues payroll that his failure a business knowledge to his lack of as to how run was due he was properly payroll and that not aware that taxes needed kept separate to be in a account. claims once He that the existed, liability pay previous he could not both liability tax withholding and current employee Essentially, respon- taxes. seems a claiming dent to be that this is not case tax of willful thus, evasion and not a violation of the rule.
Maryland (1957, Repl.Vol., § 2002 Supp.) Code 10-901 et seq. the Tax-General Article sets out duties of employers regarding employee withholding taxes. Included among is requirement employer those duties that an tax employee, pay withhold income from an quarterly taxes separate maintain a account for the withheld monies. See 10-902, §§ 10-906. Section 13-1007 that a willful provides failure to withhold taxes is misdemeanor.6 The State, (2001), Wilner, Judge 6. In Deibler v. A.2d 657 Court, writing meanings for the discussed various which courts have ascribed to the term “willful”: " ‘[WjillfuT received different has four constructions from the courts. first, restrictive, only and most is that an is act willful if it is done purpose deliberately with a bad or evil law. violate the A motive— interpretation second an act considers to be willful 'if it is done with knowledge intent an to commit the act and with a act that the is in require violation of the law.’ That construction does not that the motivation, but, possess a interpreta- defendant sinister like the first tion, require knowledge it does that the is act unlawful. The third interpretation 'requires only voluntarily that the act be committed intentionally opposed through to one that is committed inad- accident, vertence, ordinary negligence.’ or approach, Under that 'as act, long as there an finding intent to commit the there can be a though willfulness consciously attempting even the actor was comply acting good law with the and was with the faith belief that the required objective action was lawful.’ What is is 'an intent commit act necessarily knowledge bring but not that act will about illegal Finally, gone result.’ ... some have far courts so as to though intentionally, find an act willful even it was not committed but inadvertence, through oversight, negligence.” 192-93, (quoting Brogan, Id. at Analysis at 661 S. An Statutes, Term in Federal Notre Criminal Dame L.Rev. 786 "Willful" (1976)). Judge majority Wilner noted applications, this definition, i.e., Court utilized the third act be committed voluntarily intentionally, accidently. not Id. at Likewise, attorney grievance based matters on willful returns, failure to file tax this has defined willfulness as the "voluntary, legal duty requiring intentional of a violation known not
515
conclude,
us
fact to enable
to
findings
sufficient
judge made
law,
regarding the
respondent’s conduct
that
as a matter
8.4(d).
Rule
withholding taxes violated
employee
money to
he
not have the
did
Respondent’s “defense”
required to
not know that he was
the taxes or that he did
pay
is no defense at
trust account
money
separate
keep
had
been
judge found
hearing
all. The
He
of his legal
of his
knew
obligation.
repeatedly
notified
do
This was not
did not
so.
intentionally
and he
duty
pay
accident,
innocent
Taxes are
mistake or other
cause.
through
obligation
under an
Respondent was
legal duty.
a known
Ignorance
legal responsibilities.
his
inform himself of
v.
Attorney
See
Grievance Comm’n
law is not
defense.
(2003).
Stein,
531,
did not
Respondent
819 A.2d
373 Md.
372
inexperienced
that he was
explanation
his
His
pay
taxes.
not know of his
or that he
obligation
and did
business matters
excuse his conduct and does
not
does not
money
did
have the
willfully failed to
any
his
less “willful.” He
not make
conduct
thus,
his
prejudicial
his taxes and
conduct
pay
8.4(d) by
Rule
justice. Respondent violated
administration of
withholding
taxes.
paying
employee
not
to constitute a violation
pay
Failure to
taxes has been held
8.4(d).
Angst,
v.
369
Attorney
of Rule
Comm’n
See
Grievance
(2002);
v.
Attorney
747
Grievance Comm’n
800 A.2d
Md.
Clark,
(2001);
Attorney
Md.
Judge respondent co-personal Murdock found that and the Davis, 1996, representative, Ms. in February, went to at least three banks and closed accounts and no that record was kept addition, of those accounts. In hearing judge found that respondent not prompt complete did render a accounting and of other accounts.
Judge Murdock’s are findings supported by clear and con- vincing testimony depositions evidence. addition and received into hearing, parties evidence entered into stipulated findings stipulation facts. The reflects as follows:
¶ 8, 14. February 1996, On or about the Respondent and Geneva Davis traveled to various financial institutions to collect the estate an They opened assets. Estate account at First Fidelity Union Bank day. that same Ei- Bank/First Respondent ther or Geneva Davis could write checks on the Estate Account.
¶ 15. Provident Bank was one the financial institutions from which funds by were withdrawn the Respondent and Davis February Ms. on 1996. Funds also with- were drawn from accounts located at First Bank Fidelity Signet Bank.
¶ 16. February 8,1996, On Bank Provident account which jointly was titled in the names of Ida M. Redd Geneva Davis W. was closed. The in balance this account on Davis, estate, co-personal 7. representative Geneva of the died in respondent personal June representa- then became the sole death, Following respondent tive the Redd estate. her dealing was Davis, daughter, Ms. Gayle with Davis' who told that she kept by would find the records Geneva Davis. Bank $27,387.28. The Provident February was signed slip the debit Davis indicate Geneva W. records February 1996. This on entire balance removed the in Report Information filed on the was not listed account on Davis and Geneva Respondent Orphans’ he not contends that was Respondent 1996. February joint February account of this aware “[tjhese are court that before the testified hearing judge at this time.” The that I can find the records accounts. no records of closed that there were found record, we find of the independent on our review Based Judge of fact. hearing judge’s findings for the support ample concluding respon- clearly not erroneous was Murdock the funds were withdrawn dent, present who was when it Bank, and that knowledge joint account Provident had Orphans’ Report Information not listed finding respon- clearly was not erroneous Court. She *15 estate to records of the obligation keep not fulfill his dent did excuse that reject years. respondent’s for at least five We records, he keep Davis to the upon he relied Geneva because records for maintaining for the responsible was therefore not duty to retain the records of time. The required period the estate, for he attorney on as the the remained by statutory obligation for his escape responsibility cannot to shifting person. it another finding handling to the that his
Respondent excepts 8.4(d). to the excepts Rule He the estate violated Redd requiring Rule 1.15 finding that he violated judge’s from the funds separately to of a client keep property him any explains that he did not violate attorney. Respondent the $16,000.00 account personal into by depositing the rule list Wills told him to Registrar from the because the auditor accounting.” final pending as “reserved the commission check facts, respondent received agreed to the stipulated Pursuant $16,000.00 the estate Redd the amount of a check He commission. Representative Personal representing his and not the estate in his account personal this check deposited commission until not entitled to his account. was approved by Orphans’ the Court.8 Until the approved court fee, $16,000.00 belonged estate. While the money estate, belonged to the respondent was required it in a keep separate account. By co-mingling the money with 1.15(a). accounts, other respondent violated Rule Finally, some explanation, convoluted respondent excepts 8.4(d). to the hearing judge’s ruling that he violated He no asserts that at time did he engage conduct that was prejudicial to justice the administration of because the heirs signed a release agreeing to hold estate and personal representative liability harmless from resulting early from an estate; distribution of the miscalculation amount of on taxes due the estate was the result of an erroneous but faith good belief as will how the was to be interpreted; that the reject- incorrect first account which was by ed Orphans’ Court corrected subsequently approved; that the court ultimately approved the commissions June, 1996; which had been distributed that the funds were early distributed the heirs they constantly because calling were co-personal representative, seriously who was ill. respondent’s
We overrule As exception. we have previously 8.4(d) indicated, he by failing violated Rule to follow the law procedure compensation personal attorney for an or the (1957, representative Maryland Repl.Vol., is set out in Code Supp.) seq. § 7-601 et Estates and Trusts Article. Section 7-602 provides as follows: "(a) attorney General.—An compensation is entitled to reasonable legal personal services rendered him to the estate and/or representative. *16 “(b) Upon filing petition the of a in reasonable detail the Petition. — personal representative or attorney, may the the court allow a coun- attorney fee employed by personal representative sel to an the for legal compensation services. The be shall fair and in reasonable the light fixing of all the circumstances to be considered in fee the of an attorney. "(c) Considered with commissions. —If court shall allow a counsel attorneys, fee to one or more it shall take into consideration in determination, making its what would be a fair and reasonable total charge article, administering for cost of the estate under this aggregate compensation it shall not figure.” allow in excess of that addition, In he withholding taxes. employee to regard estate, 8.4(d) Redd handling the by improperly Rule violated assets, inheritance paying not ie., distributing improperly heirs, assets, distribut- suing the distributing the taxes before will, and to under the were entitled ing less than the heirs $16,000.00 commis- retaining the then, injury, to to add insult sion.
III. of sanc purpose The to the sanction. We turn now not punish grievance matters attorney tions violating attorneys prevent other attorney but integrity to maintain the Conduct and Rules Professional v. Attorney Grievance Comm’n profession. legal See (2002). 404, 416, 754-55 800 A.2d Angst, 869 particu imposed depends upon to be sanction appropriate Attorney Griev of each case. See lar facts and circumstances McClain, 196, 211, 817 ance Comm’n (2003). Court, McClain, Judge Chief Bell writing for the the sanction. regard some of the considerations explained He wrote: gravity nature and to the sanction decision is ‘the
“Relevant they with which were the violations and the intent attorney’s prior are the committed.’ Likewise relevant disciplin- have been history, prior whether there grievance involved the nature the misconduct ary proceedings, imposed, any the nature of sanctions proceedings those any attorney’s remorse mitigation, as well as facts misconduct, being conduct and the likelihood an latter, attorney’s we have held that to the repeated. As misconduct, when voluntary charged termination of the impropriety of the serious accompanied by appreciation an it, may evidence past and remorse be of that conduct in such misconduct.” again engage not attorney that the will (citations omitted). 211-12, at 227-28 Id. at be suspended Bar Counsel recommends no reapply for reinstatement indefinitely right with the *17 520 years
sooner than three from the date of suspension. Respon- that, most, suggests dent a reprimand is appropriate. 1.1, 8.4(d). has 1.15, violated Rules and matter, estate trust, failed to in hold estate assets in resulting harm to the heirs. He received commission payments expenses and travel from the without prior estate Court, approval Orphans’ of the pay did not the estate taxes promptly and judgments chose to obtain against the heirs part rather than return any his commission which he took prematurely. He violated federal and by failing state tax laws withholding to pay taxes failing and hold the trust money employee. In mitigation, that, respondent represents he ceased operating as a proprietor sole has aup professional set association known as Thompson Sugar, chang- P.A. Since status, his ing professional he all paid has back federal and state taxes and he current with all tax liabilities. He further avers that failure pay taxes was out ignorance and was not fraudulent. As handling to the of the estate, while he disputes finding of incompetency, he mistakes, concedes that he made certain but maintains that there is no pattern evidence he has a incompetently handling estates.
This Court has gravity stated “the of misconduct is not solely by measured the number rules broken but is deter- largely by lawyer’s mined Attorney conduct.” Grievance Briscoe, 554, 568, Comm’n v. 745 A.2d 1044 (2000) (quoting Attorney Milliken, Grievance Comm’n v. 486, 519, (1998)). Md. In order accomplish our goal protect public and to deter other lawyers misconduct, similar engaging look to we also our past attorney cases involving discipline. 8.4,
Violations of 1.15 through Rules misappropriation commingling moneys, estate have warranted both sus- pension and disbarment in prior cases before this Court. See e.g. Seiden, Grievance Comm’n v. 373 Md. (2003) (imposing A.2d 1108 suspension with to reapply leave permission without the days taking a fee thirty Sullivan, Court); Attorney Comm’n Grievance Orphan’s who, (2002) attorney (disbarring 650, 801 estate without funds from the took representative, personal *18 Court); Attorney Comm’n Grievance Orphans’ approval (1997) (suspending Sachse, 578, A.2d 806 345 693 v. Md. year for in one reapply to indefinitely with leave attorney will); Attorney Grievance by fund created mishandling a trust (1991) 334, 511 Md. Owrutsky, v. 322 Comm’n mishandling for client years for three attorney (suspending during service as and misconduct attorney fact funds personal representative).
Likewise,
suspension
Court has found disbarment
this
timely file federal and
attorneys who failed to
warranted for
v.
e.g. Attorney Grievance Comm’n
state income taxes. See
(2001)
Clark,
(imposing
865
indefinite
363 Md.
A.2d
provided a show-
right
reapply
with
to
suspension
immediate
to his tax
by
attorney
standing
respect
of
with
ing
good
Atkinson,
v.
Attorney
Comm’n
obligations);
Grievance
(2000)
(suspending attorney indefinite-
We several any has by party respondent not been advised either whether thus, matters, we shall assume this prior disciplinary matters, respect to tax there is his first violation. With paid no of a fraudulent intent. finding Respondent has been liability withholding tax before the mat- employee his federal ter came to the attention of the Attorney Grievance Commis- sion has addition, been current in his taxes since 1993. to appears cooperated have with Bar Counsel throughout investigation. factors,
Weighing all of these we appropri- conclude that the ate sanction is an indefinite suspension right with the reapply expiration after the It year. one is hereby ordered that:
1. Respondent, Robert P. Thompson, indefinitely is sus- pended practice law in Maryland right with the reapply after the expiration year, one suspension said (30) thirty days commence from the date of entry this Opinion and Order. all pay directed costs associated with
these disciplinary proceedings as taxed the Clerk of this Court. *19 ORDERED;
IT IS SO RESPONDENT SHALL PAY ALL COURT, COSTS TAXED BY AS THE CLERK OF THIS TRANSCRIPTS, INCLUDING COSTS OF ALL PURSU- 16-761, ANT TO MARYLAND RULE FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTOR- NEY GRIEVANCE OF COMMISSION MARYLAND AGAINST ROBERT P. THOMPSON.
Concurring Dissenting Opinion by BELL, C.J. This indefinitely suspends respondent, the P. Robert Thompson, with the right apply for readmission after one year, for Maryland violations of Conduct, of Rules Professional 1.1 (Competence),9 8.4(d) 1.15 (Safekeeping property)10, and Competence Rule 1.1 lawyer
A provide competent representation shall Compe- to a client. skill, representation requires tent legal knowledge, thoroughness the preparation reasonably necessary representation. for the 1.15(b). 10. Rule Safekeeping property Upon receiving property funds or other in which a client or third interest, person lawyer has an promptly notify shall the client or (Misconduct).11 Rules 1.15 and violated respondent That the Therefore, I Court’s 8.4(d) join the gainsaid.12 cannot be violated that the far as it concludes so opinion however, satisfied, punishment the I am those rules. doubt, the disclaim- despite slightest have not the imposed —I is, case in this imposed sanction by majority, er “crime.” be, not fit the punishment is intended —does that, I as to dissent. Accordingly, 8.4(d) of 1.15 and violations Rules hearing judge
The found taxes” “handling payroll [of his] respondent’s as a result of the repre- co-personal as performed which he the manner implicated Only Rule 1.15 was of the Redd estate. sentative concluded, matter, judge and the hearing in the tax income to withhold failing of that rule consisted violation during or more had one employees’ taxes from —he separate them in a maintaining applicable period salaries, — by permitted person. Except stated in this Rule or otherwise third client, lawyer promptly deliver agreement shall by law or with the any property that the person funds or other to the client or third and, upon request person or third is entitled to receive client accounting regard- person, promptly render a full or third shall client ing property. such 8.4 11. Rule Misconduct (d) lawyer engage in conduct professional for a to: It is misconduct justice; prejudicial ...
that is
administration
1.1, determining
hearing judge
of Rule
did not find a violation
12. purpose
majority
estab-
relies for that
that the conduct on which the
8.4(d) violation,
prejudicial to
administration
that it was
lished
mishandling,
negligent or
justice.
whether
the result
Because the
impact adversely
perception of
degree
incompetence
does
judge
justice system, I do not believe that the
client of the
*20
concluding. Significantly,
majority
so
as the
clearly erroneous in
solely by
recognizes,'
gravity
is
measured
the
"the
of misconduct
not
by
lawyer’s
largely
is determined
the
of rules broken but
number
”
520,
486,
Attorney
quoting
Griev-
at
525 sentative; Orphans’ prior approval the to obtain and travel commission representative taking personal before expenses after commission and travel to return the expenses; disallowed; complete records of to maintain had been they for five representation years the during account funds thereafter; commission and keep to the client’s funds—the payment funds until their expenses remained estate travel funds Orphans’ segregated. Court—and his by the approved to of Rule was determined be violation This same conduct 8.4(d). noted, regard, respon- in that the hearing judge The to the estate and promptly properly handle dent’s failure promptly. She also found relevant pay to the taxes assets apparent it became Estate would “When tax satisfy obligation, to in to its have be reclaimed order than return a judgments chose to obtain rather re- $16,000 prematurely he had portion of the commission Court approval.” ceived without violations, seen, 1.1, Rule
As we have the Court added premised on the same conduct. again proceedings is so well disciplinary
The purpose attorney require citation. stated and has been stated so often as not protect public punish erring and not to It v. years ago, City Bar Ass’n Baltimore attorney. Thirty Marshall, 510, 519, (1978), 682 we 269 Md. ... actions is not recognized purpose disciplinary “that performed as that function is punish offending attorney, proceedings, protect but it is to types legal in other has his unworthiness to public from one who demonstrated recently practice of law.” We most stated the continue the Davis, Grievance Comm’n v. rule 34], (2003) There, op. we [slip 825 A.2d opined: appropriate disciplinary
“Our consideration of the
measure
any
involving
of the Rules
given
to be taken
case
violation
protect-
guided by
Conduct is
our interest
Professional
legal
in the
ing
public’s
confidence
public
Powell,
profession. Attorney Grievance Comm’n
Md.
462, 474,
(2002).
800 A.2d
sueh
purpose of
proceedings
punish
is not to
lawyer,
but should deter
lawyers from engaging
[Attorney
other
in similar
conduct.
Grievance Comm’n
Mooney,
v.]
[56,]
*22
[17,]
protected
38
The public
impose
[2000].
is
when we
sanctions
are
commensurate with the nature
gravi-
and
ty of the violations and the intent
they
with which
were
Awuah,
Grievance
Attorney
Comm’n v.
committed.
346
420, 435,
446,
(1997).”
Md.
697 A.2d
454
It
equally
well
that the
impose
settled
decision whether to
and,
so,
in
a sanction
if
particular case
what
the sanction
be, does,
must,
should
and
depend on the facts and circum
however,
are,
stances of that case. There
that inform
factors
guide
gravity
decision:
“the nature and
of the
they
violations and the intent with which
were committed.”
Awuah,
435,
346
at
697
Attorney
See
Md.
A.2d at 454.
Grievance Comm’n v. Pennington, 355 Md.
78,
61,
733 A.2d
1029,
(1999);
Attorney
v.
1037-38
Grievance Comm’n Millik
en,
486, 519,
1225,
(1998);
348 Md.
Attorney
704 A.2d
1241
Grievance Comm’n v. Montgomery,
154,
165,
318 Md.
567
112,
(1989);
attorney’s
A.2d
117
prior grievance
history,
including
have
prior disciplinary
whether there
been
proceed
ings, the
nature
the misconduct
involved in those proceed
ings
any
nature of
sanctions imposed,
any
as well as
Attorney
Franz,
Grievance Comm’n v.
mitigation,
facts in
355
752, 762,
339,
Md.
(1999);
736
344
Maryland State Bar
A.2d
Phoebus,
Ass’n v.
353, 362,
556,
(1975);
276 Md.
347 A.2d
whether the attorney
Attor
misconduct,
is remorseful for the
ney
Grievance
Wyatt,
Comm’n v.
36,
38,
467,
323 Md.
591 A.2d
(1991),
and the likelihood of the
being repeated.
conduct
Freedman,
Attorney
Grievance Comm’n v.
298, 300,
285 Md.
(1979).
75,
402 factor,
With
to the
respect
latter
recidivism,
likelihood
we have held that
the voluntary
misconduct,
termination of the charged
accompanied by
when
appreciation
an
of the
impropriety
having
in
engaged
it and
so,
having
remorse
done may
attorney
be evidence that the
Freedman,
again
will not
in
engage
such misconduct.
285 Md.
300,
This Court also to the viola- time reasonably close being imposed sanction Howard, 282 Grievance Comm’n found. See tion (1978). case, In that 1191, 1196 6- Rule Disciplinary violated was found to have him, 101(A)(3), legal matters entrusted by neglecting 7-106(C)(6), contempt by being found Rule Disciplinary trial failing present be on three occasions court issued a The Court appearance. he had entered which *23 It reprimand. explained: stern closely more on the proceedings been instituted
“Had these
them,
might
we
well have
giving rise to
heels of the events
have
suspension
A
would
suspension.
recommended
public
it
the
protected
would have
purpose:
served
dual
and it would also have had
period
suspension
of
during the
forcing Mr.
to reduce his
salutory effect of
Howard
the
proportions.
manageable
to more
practice
gone over the dam since then. His
“But much water has
in
in
Bernice
matter occurred March 1966.
lapse
the
Adams
place
July
to
the
brief took
Campbell
His failure
file
place
took
between October
contempts
and the three
To
at this
suspend
1971 and December
1972.
disbar
locking
the barn door after the
late
would be
case of
date
underlying purpose
not serve the
horse
stolen and would
which
the
punish
is not
disciplinary proceedings,
“
from
public
one
offending attorney
protect
but
‘is
to continue the
who has demonstrated his unworthiness
Ma
Grievance Commission
Attorney
law1”.
practice
Pollack,
225, 237,
(1977),
61
v.
279 Md.
A.2d
ryland
Agnew,
v.
Maryland State Bar Association
811(1974),
Maryland
State Bar
Association
Phoebus,
(1975).”
A.2d 556
523-24,
Id. at
factors In it quotes last. from passage they McClain where set forth. are 376 Md. at recognizes 485-86. It also that there are cir- mitigating cumstances this case: mitigating
“We find several present. factors are We have not been advised by party either whether has matters, any prior thus, disciplinary shall we assume this is his first violation. With respect to the tax matters, has finding there been no aof fraudulent intent. Respondent paid employee his federal withholding tax liabil- ity before the matter came to the attention Grievance Commission and has been current his taxes addition, since 1993. In respondent appears cooper- to have ated with Bar throughout Counsel the investigation.” 521-22, Id. at A.2d at than Curiously, other the lack of a disciplinary history, despite the a finding absence of fraudulent intent on respondent’s part handling estate, majority not identify any does mitigating factor with regard to the event, estate matter. any it does simply not meaningfully apply any of the factors. outset,
At it must be clearly stated that the violations relating duty taxes, to withhold employee income opposed to liability resulting failure withhold *24 taxes, and remit the ceased in when the respondent ceased solo practice began and to practice with as Sugar Thompson & Sugar, time, P.A. As of that it undisputed the withholdings have been current and that all that remained was the clearing up liability. incurred That liability having discharged, need, been violation, there is no as to this for any beyond sanction a reprimand stern protect to A public. recent case involving withholding taxes makes point. Rules Clark, to have violated was found respondent
In
(“violate
Rules of Professional
8.4(a)
to violate the
attempt
or
so, or do so
to do
Conduct,
assist or induce another
knowingly
(“commit
another”), (b)
criminal act that
acts of
through the
trustworthiness, or
lawyer’s honesty,
adversely on the
reflects
(c)
(“engage
respects”)
in other
and
as a lawyer
fitness
fraud,
misrepresenta-
or
dishonesty,
deceit
involving
conduct
1.15(b).
8.4(d)
363 Md.
tion”), in
Rules
addition to
an indefinite
Nevertheless, his
sanction
“Similar Post, Comm’n Grievance found 1998], that there had never namely, 710 A.2d part of the on the of fraudulent intent finding been late, often never respondent, while respondent, taxes, to file returns remit obligation sought avoid before this that, argument as of the time of oral finally, case, had Court, on—or in this was current respondent While plan Comptroller. with the completed payment —the violations consisted inveterate conduct respondent’s of Ford’s throughout Article duration the Tax-General compli- into attempt come respondent did employment, on several withholding requirements tax ance with the willingness of his to confront indication occasions—an him. managerial problems before addition financial and outstanding balance Comptroller’s Office paying case has several in this taken entirety, in its will not occur steps to ensure that such violations additional North that he Judge before testified again. to maintain con- with his accountant arrangements made over his authority him relationship by granting tinuous monies, payroll escrow and that he established accounts than no other longer employs persons and that he accounts himself.” 184-85, has the only respon- at 873-74. Not
Id. at (b) (c), 8.4(a), to have violated Rules not been found dent *25 530 his
but remediation of the violation liability and the incurred and, thereby is complete concerned, insofar as the violation is has been for some time.14 8.4(d) 1.1,
This leaves the Rules 1.15 and violations related respondent’s to the handling the estate matter. There is no allegation connection with this respondent matter fraudulently or dishonestly acted or committed a criminal act reflecting adversely honesty, on his trustworthiness fitness lawyer, any as a not to mention such findings. out, previously pointed
As
as was the case with the tax
matter,
hearing
judge
any finding
did not make
that the
Moreover,
respondent had
fraudulent
intent.
respon-
attorney
dent is an
of long standing, practicing
twenty-
almost
(25) years
five
without a prior disciplinary history.
violations,
gravamen
so far as the
judge
concerned,
respondent’s
was the
improper
dilatory
handling of the estate funds and accounts and
impact
that conduct on the
justice.
administration of
The majority
seems to focus on the “incompetence”
respon-
with which the
dent undertook
performed
as co-personal repre-
duties
sentative of the estate and the
performance
effect of that
on
estate,
the beneficiaries and
justice.
the administration of
sure,
While, to be
the respondent’s performance
great
left
relies,
520-22,
majority
14.
theOf
cases on which the
see 376 Md.
830
two,
(2003),
Clark,
at
only
Attorney
A.2d
486-87
Grievance Comm’n v.
(2001)
Attorney
363 Md.
A.2d
767
865
Grievance Comm’n v.
Baldwin,
(1987),
308
any
Md.
In
we
and,
subsequent
disciplinary proceedings
of
history
prior
case,
a
had taken
disciplinary
rise to the
giving
events
the
thirty
days
for
as
management,
account
course
escrow
deposit
entire amount
failing
for
hold the
sanction
sale, in
the foreclosure
him
successful bidder at
given
by the
1.15,
naming and
properly
for not
of Rule
and
violation
account, in
an
trust
attorney
his
account as
designating
escrow
of
imposition
the
explaining
violation of Rule 16-606.15
that
not
sanction,
find clear
that the
court did
we noted
was willful
that the Rule 1.15 violation
convincing evidence
the
purpose
or
for an unlawful
consciously done
after
shortly
had
corrected
the
account
been
escrow
violation
problem.
of
373 Md.
was made aware
the
at
respondent
A.2d
at
Garfield,
Comm’n v.
The
Grievance
respondent
(2002),
cases of six
neglected
with a
the name
law
title that includes
‘Attorney
clearly designates
Trust Account’ 'Attor-
the account
Account’,
on
ney
Funds Account’
all checks and
Escrow
or 'Clients'
distinguish
any
deposit slips.
title
the account from
other
shall
may
attorney or
maintain and
fiduciary
that the
law firm
account
attorney
personal
law
any
or business account of the
firm.”
from
drug addiction,
found
hearing court
be
substan-
cause
professional misconduct,
tial
of his
and his rehabilitative
efforts,
imposed
the Court
as the
an
sanction
indefinite sus-
pension
right
with the
apply
readmission no earlier than
days
suspension.
the effective
at
date
Id.
case,
In Attorney Grievance Comm’n v. (2000), respondent, subject complaints, of two involving custody one dispute and the other a bankruptcy proceeding, was 1.1, 1.3, 1.4, found to have violated Rules 8.1(a), 8.1(d). 8.1(c), Although we concluded that he *27 possessed “very little or of appreciation no the seriousness of his misconduct” and that his of “pattern behavior demon- inability strates to Respondent’s conform his conduct within Maryland the bounds of the Lawyer’s Rules of Professional Conduct,” id. at at notwithstanding and that had previously suspended we the respondent for violations of 8.4(d), Rules 4.4 and we imposed as the appropriate sanction in that suspension, ease an indefinite right with the to apply for readmission six Id. months. at at A.2d Brown, In Attorney Grievance Comm’n (1986), A.2d the respondent was found to have acted incompetently certain matters relating essentially to estate 235-36, administration and federal estate taxation. Id. at 1119. The Court out set the factual basis that finding, as follows:
“Elmyra Hahn died 1978 and Brown qualified as the personal representative her of estate. Shortly after that Mr. Hahn’s health deteriorated. At the request Hahns’ daughter, arranged Brown appointment for the Owen, Robert accountant, the Hahns’ as guardian of Mr. Hahn’s property and estate. outright of her estate portion will a
“Mrs. Hahn’s left Hahn as trustee to Mr. portion another Mr. Hahn and condition, Brown physical of Mr. Hahn’s Because others. trustee. as substitute appointment arranged for Owen’s as duties Owen the latter’s discussed with Brown never guardian trustee. final first administration filed the
“When Brown estate, failed include he for Mrs. Hahn’s account Moreover, erroneously allocat- he farm an asset. ‘small’ as residuary Hahn and Mr. ed the net estate between 1982 that he executed was not until And it trust. farm to Mr. Hahn’s ‘small’ conveying recorded deed Additionally, while trustee. to the substitute guardian and Mrs. Hahn’s over all the assets personal Brown turned Owen, portions passed he to indicate which failed estate him which went to capacity guardian in his as to Owen Moreover, estate tax the federal as substituted trustee. contained for Mrs. Hahn’s estate prepared return Brown number errors. per- qualified
“Walter Hahn died
Brown
from Owen
of his
He received
representative
sonal
estate.
(stocks, bonds, and bank ac-
Hahn’s trust
assets Mrs.
counts)
received;
commingled
he should not have
he
failed
see
Mr.
He
with assets of
Hahn’s estate.
these
will,
Owen,
Mrs. Hahn’s
as substitute trustee under
That
promptly.
trust
to the beneficiaries
delivered
assets
He
for over
delayed
not occur until 1982.
distribution did
final
seeing that a
year after Mr. Hahn’s death before
Hahn
filed.
account for Mr.
guardianship
*28
tax
Mr.
estate
return for
prepared
“Brown also
federal
that
wrongly
In it he
included assets
should
Hahn’s estate.
trust, as
of Mrs. Hahn’s
to the beneficiaries
passed
have
He
as a
that should not have been included.
gift
well
taxes,
on
in the
of the tax
erred
calculation
understated
transfers,
by
commissions
prior
improperly
and
calculated
real
commission on the sale of
estate
claiming
percent
Est.
statutory
maximum
allowance under Md.
as well
Art.,
7-601,
§
against
and Trusts
a tax
that
base
included
estate.”
real
226-27,
Id. at
A
was the
reprimand
imposed.
sanction
That sanction was
by
hearing judge
by
Counsel,
recommended
Bar
based
the fact
respondent,
lawyer
on
“a
of long
record,”
with a
standing,
previously unblemished
was not
guilty “of intentional
wrongdoing”
by
“actuated
inappropri-
“
ate
or purpose
motives
....
and evidence that he was a man
of high integrity and principle,
acknowledged
and an
in
expert
some areas
the law. Id. at
sanction
it
the violations
regard
the estate
Sullivan,
matter. Attorney Grievance Comm’n v.
(2002),
“Respondent Rule violated ... taking funds from the Amoss approval estate without the Orphans’ contrary agreement his not to take 25,000.00. compensation excess of Sullivan $ Mr. had no lawful claim to those taking funds his those funds for his personal use was and a theft criminal act reflecting on adversely his honesty, trustworthiness and fitness as an attorney. taking His of those funds was dishonest. Re- spondent’s matter, throughout conduct this including failure to administer the promptly, estate his dishonest and taking funds, unlawful and his lack of communication with personal successor representatives prejudi- was conduct cial to justice.” the administration of
535 Sullivan, in “It out pointed As we at 1080. 801 A.2d Id. by an misappropriation, in that this State well settled ‘is an act to his or her care attorney, of funds entrusted result ordinarily will dishonesty and with deceit infected cir- extenuating compelling in absence of the in disbarment ” 655-56, Id. at 801 a sanction.’ justifying lesser cumstances A.2d at 1080. issue in the central was also
Misappropriation Hayes, v. Comm’n Grievance
(2002).
not find that the
hearing judge
the
did
Noting that
had not
had
fraudulent intent and
in that case
a
respondent
implicating fraud
necessarily
violations
with rule
charged
been
rejected Bar
recommenda-
the
Counsel’s
dishonesty,
or
Rule 1.15
be
for violation of
respondent
disbarred
tion that the
Instead,
the Court
mishandlings.
escrow account
and other
was an indefinite
appropriate sanction
that
the
determined
ninety
after
seek reinstatement
suspension
right
with the
course,
(90)
true,
It is
days.
Id. at
exception
finding
of Rule
violation
10-306,
§
proper
held that
sanction
indefinite
suspension
right
apply
year.
readmission
one
*30
Id. at
The conduct of the
Attorney Grievance Comm’n
(1991)
Owrutsky,
Seiden,
(2003),
“This is disciplinary proceeding first over years practicing law. ... not charged 8.4(b) (c), violations of thus he MRPC did not intentionally misappropriate the monies of complainant. He is remorseful for his conduct and has cooperative been throughout these proceedings. Respondent was also ex- tremely ill from December 2000 through mid-April of 2001, which, respondent, according to him prevented from con- during Respondent’s time. a Fee filing Petition of particu- his directly representations resulted duct repeated, be as evi- unlikely and will larly difficult client being charged of practice without many years denced disciplinary proceeding.” in a 818 A.2d at
Id. beyond period suspen- sanction a short any I believe sion, which does not serve thirty sixty days, punishment, protecting public. purpose
I dissent.