Attorney Grievance Commission v. WhiteAttorney Grievance Commission v. White
Erica S. White (Baltimore, MD), for respondent.
Argued before BARBERA, C.J., BATTAGLIA,* GREENE, ADKINS, MCDONALD, WATTS, and HOTTEN, JJ.
HOTTEN, J.
This attorney discipline action involves a lawyer who, while representing her clients in separate legal matters, failed to comply with remedial conditions as required under
Respondent, Erica S. White, a member of the Bar of Maryland, represented Keith Fleming (“Mr. Fleming“) in a divorce and custody matter (“Fleming matter“) and Karma Sewell-Carpenter (“Ms. Sewell-Carpenter“), in a landlord-tenant dispute (“Sewell matter“). Between March 2012 and November 2013, Respondent was under a CDA with Bar Counsel for prior misconduct involving mismanagement of her attorney trust account. Respondent‘s CDA was later amended (“Amended CDA“), then subsequently revoked in April 2014 due to Respondent‘s non-compliance with the tеrms of the CDA. (collectively, “CDA matter“).
On December 30, 2014, Petitioner, the Attorney Grievance Commission of Maryland, acting through Bar Counsel, filed with this Court a Petition for Disciplinary or Remedial Action (“Petition“) against Respondent, based upon her representation of Mr. Fleming and Ms. Sewell-Carpenter, non-compliance with the CDA and Amended CDA, and the mishandling of her trust account throughout this period (“Trust Account matter“). Bar Counsel alleged that Respondent violated the following Maryland Lawyers’ Rules of Professional Conduct (“MLRPC“): Rule 1.1 (Competence), Rule 1.3 (Diligence), Rule 1.4(a) and (b) (Communication), Rule 1.15(a) and (d) (Safekeeping Property); 1.16(d) (Declining or Terminating Representation); 8.1(a) and (b) (Bar Admission and Disciplinary Matters); and Rule 8.4(a), (c), and (d) (Misconduct).
Bar Counsel also alleged that Respondent violated
By Order dated January 9, 2015, this Court transmitted the matter to the Circuit Court for Baltimore City and designated the Honorable Edward R.K. Hargadon (“hearing judge“) to render findings of fact and conclusions of law. On April 17, 2015, both parties participated in a scheduling conference call with the hearing judge, setting a hearing for June 24, 2015 at 9:30 a.m. On or about June 22, Respondent informed the court that she was unable to attend the hearing due to her representation of a client in a murder trial that day.
On July 14, 2015, a hearing was conducted. Present were Bar Counsel аnd Respondent. Ms. Sewell-Carpenter, Edwin Karr (“Mr. Karr“), Investigator for the
On September 22, 2015, Bar Counsel filed its recommendation for sanctions, requesting indefinite suspension with the right to apply for readmission after six months, and took no exceptions to the hearing judge‘s findings of fact or conclusions of law. On September 23, 2015, Respondent filed general exceptions to the hearing judge‘s findings and conclusions, which she subsequently amended on September 30, 2015 and February 9, 2016.3 On February 9, 2016, we heard oral argument. Respondent conceded that she engaged in professional misconduct relative to the alleged charges, but attributеd her actions to illness, recuperation after surgery, and difficulties experienced as caretaker of her mother until her death, which collectively impacted her practice during those periods.
For the reasons that follow, we conclude that Respondent violated MLRPC 1.1, 1.3, 1.4(a) and (b), 1.15(a), 1.16(d), 8.1(a) and (b), 8.4(a), (c), and (d),
BACKGROUND
The hearing judge rendered the following findings of fact, which we summarize:
A. Respondent‘s CDA, Subsequent Amended CDA, and the Fleming Matter
Respondent was admitted to the Bar of Maryland on November 3, 2007, and currently maintains a law office in Baltimore, Maryland. On March 21, 2012, Respondent entered into a one-year CDA with Bar Counsel.
Pursuant to
Respondent will provide [Ms. Deady] with a copy of her general ledger, individual client ledgers, monthly trust account reconciliation, trust account statement, and corresponding cancelled checks on a monthly basis for her monitor to submit to Bar Counsel for the remainder of the Amended CDA.
Respondent will attend a meeting with Certified Public Accountant/Commission Investigator Charles Miller [(“Mr. Miller“)] to review Respondent‘s financial records and to discuss Respondent‘s trust account questions. Respondent will bring a copy of her general ledger, individual client ledgers, monthly reconciliation and monthly trust account statements from the previous three months with her to the meeting for Mr. Miller to review. Respondent will set a meeting date with Mr. Miller by no later than seven [] days after the new effective date of the Amended CDA. The meeting date shall occur within twenty [] days of the effective date of the Amended CDA.
[Ms. Deady] shall be required to attend a formal hearing/court proceeding with Respondent within two [] months from the new effective date of the Amended CDA and to complete a client observation form in connection with the hearing/proceeding.
[Ms. Deady] shall continue to provide reports to Bar Counsel on a monthly basis and submit each report on the 30th day of the month. In addition, Respondent shall meet with [Ms. Deady] on a monthly basis on the twentieth [] day of each month. During the meeting, Respondent shall discuss her Amended CDA in detail, provide any needed trust account records and/or billing documentation to the monitor, and to submit her written report of her biggest challenges and/or goals/accomplishments for the month.
Respondent‘s Amended CDA shall remain in effect until July 31, 2014.
i. Respondent‘s Interactions with Ms. Deady
Respondent admitted that during November 2013 through February 2014, she failed to provide the information to Ms. Deady and Mr. Miller regarding her general ledger, individual client ledgers, monthly reconciliation, trust account bank statement, and corresponding cancelled checks on a monthly basis. On November 8, 2013, Respondent met with Ms. Deady
Ms. Deady submitted her second monthly report to Bar Counsel on January 10, 2014, which reflected that she contacted Respondent on January 6, 2014 for the required documents. However, Respondent advised that she was unаble to comply due to scheduled surgery that same day. Although Respondent promised to provide the documentation after her recuperation, she did not.
Ms. Deady left a voicemail for Respondent on January 30, 2014. In Ms. Deady‘s third monthly report to Bar Counsel, she advised that Respondent had not contacted her since January 6, 2014. Bar Counsel granted Respondent an eight-day extension to submit her documentation to Ms. Deady. Ms. Deady‘s fourth monthly report to Bar Counsel on February 28, 2014, reflected that she contacted Respondent on February 25, 2014 to schedule an appointment on February 27, 2014, and noted Respondent‘s failure to provide any documents or meet with her since November 2013. However, Respondent was unable to meet with Ms. Deady on February 27, citing a need to prepare for a motion and complications from her surgery.
ii. Respondent‘s Interactions with Attorney Grievance Commission Investigator, Mr. Karr
In February 2014, Mr. Karr contacted Respondent regarding the impending revocation of her Amended CDA. Mr. Karr conducted an interview of Ms. Sewell-Carpenter on March 6, 2014, but received no response from Respondent after leaving voice messages on March 7 and 10, 2014. On March 11, 2014, Mr. Karr contacted Respondent and scheduled an interview for March 25, 2014, at 11:00 a.m.
During the hearing, Mr. Karr testified that Respondent attempted to cancel the interview, citing an impending trial and inquired whether he could provide her with written questions in advance. Mr. Karr directed her to Assistant Bar Counsel JaCina Stanton (“Ms. Stanton“). Mr. Karr and Ms. Stanton subsequently cancelled the interview and agreed that Respondent could provide a statement under oath.
iii. Respondent‘s Failure to Protect Client‘s Interests
In light of Respondent‘s upcoming surgery and anticipated recuperation period, Ms. Stanton requested information from Respondent on November 26, 2013 regarding the status of her cases scheduled for January 2014. In a reply e-mail sent on December 5, 2013, Respondent stated:
I have already discussed the matter with most of my clients and am in the process of discussing it with the rest. I have already addressed the issue of court dates as I have explained to the [c]ourt what my situation is and requested court dates in accordance with my expected return to work. I also advised the [c]ourt that I will notify them if anything changes or I need more time....
On January 24, 2014, Ms. Stanton requested that Respondent provide further information
B. Sewell Matter
On December 3, 2005, Ms. Sewell-Carpenter signed a commercial lease agreement with ELT Corporation to rent space for a dance studio she operated named Karma‘s Dance Factory. Rachel Oziel (“Ms. Oziel“) and her husband, Madgi Oziel owned ELT. On or about September 4, 2012, Ms. Oziel filed suit against Ms. Sewell-Carpenter on her own behalf, in the amount of $5,997 in the District Court for Baltimore County for failure to pay rent. (Oziel v. Sewell, Case No. 080400197772012). On November 27, 2012, the District Court entered judgment against Ms. Sewell-Carpenter in the amount of $6,907.
Twice during November or December 2012, Respondent discussed possible representation with Ms. Sewell-Carpenter. Ms. Sewell-Carpenter advised Respondent of the November 27 judgment, but Respondent never recommended that Ms. Sewell-Carpenter file an appeal or a motion to revise judgment within thirty days. During the disciplinary hearing, Respondent indicated that she thought she had ninety days to seek an amended or revised judgment.
On February 23, 2013, Ms. Sewеll-Carpenter formally retained Respondent after submitting two credit card payments totaling $1,500. That same day, Respondent sent Ms. Sewell-Carpenter an e-mail, outlining the legal services that she would provide, but did not address the likelihood of success. Ms. Sewell-Carpenter never responded to the February 23 e-mail9 or executed a retainer agreement.
On February 26, 2013, Respondent filed a “Motion to Set Aside Judgment” (“Motion to Set Aside“), ninety-one days after the judgment was entered against Ms. Sewell-Carpenter, based on fraud, mistake or irregularity. The motion was denied on March 13, 2013. Respondent also filed a “Motion for Reconsideration” of the denial of the Motion to Set Aside. During the hearing on June 11, 2013, Respondent neglected to bring Ms. Sewell-Carpenter‘s file. The court subsequently denied the
On November 27, 2013, Ms. Sewell-Carpenter filed a Motion to Vacate Judgment pro se. A hearing on the matter was scheduled for January 24, 2014. Ms. Sewell-Carpenter was officially notified of a motions hearing and notice was also sent to Respondent, who remained counsel of record. Respondent claimed that she was absent from her law office throughout the month of January due to illness, neglected to check her mail, and never implemented forwarding procedures during her period of recuperation.
Although Respondent‘s representation of Ms. Sewell-Carpenter ended in June 2013, she failed to file a motion to strike appearance with the court. Ms. Sewell-Carpenter‘s motion was subsequently dismissed for her failure to appear for the hearing on January 24. As a result, her wages were garnished in the amount of $6,907 to satisfy the judgment. On February 11, 2014, Ms. Sewell-Carpenter‘s subsequent motion to reset a hearing date was denied. Respondent did not file a motion to withdraw her appearance as counsel until March 11, 2014.
C. Trust Account Matter
Bar Counsel subpoenaed Respondent‘s trust account bank statements from December 2012 to March 2014. During the hearing, Respondent conceded that she had not maintained accurate records or retained checks for her trust account during this period. Between May and July 2013, attorney‘s fees for two unspecified clients were applied to negative balances. Respondent was unable to identify the partiсular clients whose funds were affected by the negative balances.
In July 2013, Respondent made a cash withdrawal and subsequently wrote a check payable in October 2013 from her trust account without a memo, both in the amount of $50.00. Respondent also wrote a check payable to “Cash” in the amount of $420, with a memo indicating “USCIS Fee Wolf Case.” During the hearing, Respondent conceded that this transaction was violative of trust account rules.
Beginning October 31, 2013, Respondent‘s trust account had a negative balance of $11.20. The trust account remained in that status for the next five months until March 31, 2014, when her ending trust account balance was $36.00. Respondent conceded that during the period of her CDA or Amended CDA, she neglected to note clients’ names on the majority of her checks and deposit slips.
STANDARD OF REVIEW
“This Court has original and complete jurisdiction over attorney disciplinary proceedings.” Attorney Grievance Comm‘n v. Barton, 442 Md. 91, 119, 110 A.3d 668, 684 (2015) (citations omitted). “Bar counsel ha[s] the burden of proving [the] allegations in the disciplinary petition by clear and convincing evidence.” Attorney Grievance Comm‘n v. Edib, 415 Md. 696, 706, 4 A.3d 957, 964 (2010). See also
We conduct an independent review of the record and accept the hearing judge‘s findings of fact unless they are clearly erronеous. See Barton, 442 Md. at 119, 110 A.3d at 684 (citation omitted). Deference is accorded to the hearing judge‘s findings, who is in the best position, as the fact-finder, to assess the credibility of a witness. See Edib, 415 Md. at 706-07, 4 A.3d at 964. See also
However, if exceptions are filed, “the Court of Appeals shall determine whether the findings of fact have been proven by the requisite standard of proof” outlined in
DISCUSSION
A. Findings of Fact
Bar Counsel does not except to any of the hearing judge‘s findings of fact. However, Respondent excepts to the findings relative to her interactions with Commission Investigator, Mr. Karr. Respondent contends that her exhibits evidenced a series of communications with Bar Counsel, reflecting that she asked whether Mr. Karr could provide questions in advance to ensure that the interview “was productive and went smoothly.” Respondent asserts that she did not refuse to meet with Mr. Karr, although the hearing judge adopted the position that Bar Counsel and Mr. Karr decided that Respondent would provide a statement under oath, in lieu of her meeting with Mr. Karr.
We shall overrule Respondent‘s exceptions. Although the evidence does not reflect that Respondent refused to meet with Mr. Karr,11 it does demonstrate that she did request questions “ahead of time,” which prompted the alternate resolution agreed upon by Ms. Stanton and Mr. Karr. In response to her request, Ms. Stanton advised, in part:
You advised Commission Investigator, [Mr.] Karr that you would not sit for an interview unless you were provided with written questions in advance. The Maryland Rules do not require us to provide
respondents with written questions prior to interviews. Pursuant to [Md.] Rule 16-732, we are requesting that you attend a Statement under oath for this matter....
Thus, the hearing judge‘s findings that 1) Respondent “inquired whether Mr. Karr would provide her with written questions prior to being interviewed[;]” 2) Mr. Karr subsequently advised that this was not standard protocol; and 3) Mr. Karr and Ms. Stanton agreed that Respondent would provide a statement under oath in lieu of an interview, were consistent with the evidence.
Respondent excepts to the hearing judge‘s findings regarding the extent of her communications with clients, as reflected in her March 17, 2014 correspondence to Bar Counsel. She contends that those client communications began on November 26, 2013, and during that time, the averments were accurate, with the exception of Ms. Sewell-Carpenter. Although Respondent concedes that she neglected the Sewell matter, she nonetheless avers that she did not have a duty to Ms. Sewell-Carpenter because she “acted on her own” without Respondent‘s knowledge when she filed motions pro se.
We overrule Respondent‘s exceptions. As an initial matter, the fact that Ms. Sewell-Carpenter filed motions pro se, is of no consequence to the hearing judge‘s findings that she failed to advise Ms. Sewell-Carpenter about the January 2014 hearing—after receiving notification from the court. Moreover, the December 5, 2013 e-mail to Bar Counsel, Respondent stated:
I have already discussed the matter with most of my clients and am in the process of discussing it with the rest....
Although Respondent references the March 17 correspondence to Bar Counsel, it was Respondent‘s December 5 e-mail that the hearing judge relied upon in determining that Respondent misrepresented the client communications regarding their cases. Respondent neglected to correct any prior misrepresentations in the March 17 correspondence. Additionally, Respondent conceded that she neglected the Sewell matter, although she remained counsel of record until she withdrew her representation in March 2014.
Respondent excepts to the hearing judge‘s findings regarding initial conversations with Ms. Sewell-Carpenter, where the hearing judge stated, in part, “Ms. Sewell[-Carpenter] advised Respondent of the judgment, but Respondent never informed
Ms. Sewell-Carpenter that she had to file an appeal, or a motion to revise judgment, within thirty days of the judgment.” Respondent contends that if Mr. Karr‘s statements in his interim report are believed, his interview with Ms. Sewell-Carpenter in March of 2014 reflects that Respondent was not hired until after her trial and entry of judgment on November 27, 2012, and that her $1,500 fee payment was not made until February 23, 2013. Respondent further contends that Mr. Karr‘s report demonstrated Ms. Sewell-Carpenter‘s understanding that Respondent would not perform any work on her behalf until she remitted full payment.
We shall overrule Respondent‘s exceptions. We acknowledge that Ms. Sewell-Carpenter conceded that she did not consider Respondent her attorney until January or February of 2013. However, Respondent‘s contentions do not negate that once Respondent became aware of Ms. Sewell-Carpenter‘s judgment, she failed to inform her of the urgency of the situation or the time-sensitive nature of an appeal in the matter.
It is well settled that in forming an attorney-cliеnt relationship, a formal
Although payment was not remitted until February 23, based upon the initial communications12 between Respondent and Ms. Sewell-Carpenter, it was reasonable for the hearing judge to presume the existence of an attorney-client relationship, thereby triggering Respondent‘s obligations to advise accordingly, under
Respondent also excepts to the hearing judge‘s finding that Ms. Sewell-Carpenter did not respond regarding the scоpe of her representation and fees, because the evidence reflects that Ms. Sewell-Carpenter stated in a reply e-mail, “[t]his will be fine. I agree.” Although we sustain Respondent‘s exception, Ms. Sewell-Carpenter‘s reply to Respondent‘s February 23 e-mail as expressed, supra, does not impact any of the charges asserted by Bar Counsel. Respondent neglected the Sewell matter and violated several Rules of Professional Conduct and Maryland trust account rules.
Respondent excepts to the hearing judge‘s findings regarding her responsibility for Ms. Sewell-Carpenter filing a pro se motion to vacate the November 27, 2012 judgment against her. Respondent contends that “[t]here was no testimony” indicating that Ms. Sewell-Carpenter considered Respondent as her attorney at that time or that she had informed Respondent of the Motion to Vacate and reset of the hearing date. Respondent also contends that she had already “wound down” her practice due to her surgery. We shall overrule Respondent‘s exceptions. As noted supra, Respondent conceded, and we agree, that she neglected matters pertaining to the Sewell matter. Without express termination, Respondent remained counsel of record until she withdrew her representation in March 2014.
Respondent excepts to the hearing judge‘s findings that she did not provide
We shall overrule Respondent‘s exceptions and accept the hearing judge‘s findings in light of his opportunity to assess the credibility of the witnesses. See Attorney Grievance Comm‘n v. Siskind, 401 Md. 41, 54, 930 A.2d 328, 335 (2007) (noting that “we accept the hearing judge‘s findings of fact as [prima facie] correct unless shown to be ‘clearly erroneous,’ and we give due regard to the hearing judge‘s opportunity to assess the credibility of witnesses.“). The hearing judge found credence in Ms. Sewell-Carpenter‘s testimony that she did not receive copies of motions until July 2014, approximately four months after Respondent withdrew as counsel. We conclude that this finding was not erroneous based upon the evidence presented.
Respondent excepts to the hearing judge‘s findings regarding the negative balances in her trust account. She contends that the balances were a result of maintenance fees assessed to the account, which were subsequently refunded. Respondent also contends that the maintenance fees were assessed during a period when there was no activity because she was “winding down” her practice in preparation for surgery. We shall overrule Respondent‘s exceptions. Although the negative balances were due to maintenance fees that were subsequently refunded, she failed to maintain the account in accordance with the trust account rules discussed, infra.
Respondent excepts to the hearing judge‘s findings regarding the $420 USCIS check made payable to “Cash.” She contends that a copy of the check admitted into evidence indicates that the cash withdrawal was immediately payable as a bank check to USCIS, with a confirmation receipt verifying same. Nonetheless, we shall overrule her exceptions. As we discuss infra, Respondent‘s practices contravened the trust account rules requiring proper record-keeping.
B. Conclusions of Law
In light of the foregoing findings of fact, the hearing judge concluded that Respondent engaged in professional misconduct in violation of the
Bar Counsel does not except to the hearing judge‘s conclusions of law. Although Respondent generally excepts to the hearing judge‘s findings of fact, none of her exceptions specifically address the hearing judge‘s conclusions of law. For
MLRPC 1.1 (Competence)
Clear and convincing evidence supports the hearing judge‘s conclusion that Respondent violated
The evidence demonstrates that Respondent also violated
An attorney‘s failure to properly maintain his or her trust account demonstrates incompetence, in violation of
Clear and convincing evidence also supports the hearing judge‘s conclusion that Respondent violated
Respondent‘s actions involving tracking her time, disbursing funds, and maintaining client ledgers also demonstrated a lack of competence in appropriate billing practices and handling of client funds. Moreover, as the hearing judge concluded, Respondent‘s
MLRPC 1.3 (Diligence)
Clear and convincing evidence supports the hearing judge‘s conclusion that Respondent‘s failure to withdraw as counsel in the Sewell matter until March 11, 2014, when the case concluded in June 2013, violated
MLRPC Rule 1.4 (Communication)
(a) A lawyer shall:
(1) рromptly inform the client of any decision or circumstance with respect to which the client‘s informed consent, as defined in
Rule 1.0(f) , is required by these Rules;(2) keep the client reasonably informed about the status of the matter;
(3) promptly comply with reasonable requests for information; and
(4) consult with the client about any relevant limitation on the lawyer‘s conduct when the lawyer knows that the client expects assistance not permitted by the Maryland Lawyers’ Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
“[MLRPC] 1.4 requires a lawyer to comply promptly with reasonable requests from the client for information, to explain on-going matters to the extent reasonably necessary to allow a client to make informed decisions, and to keep the client informed about the status of pending matters.” Steinberg, 395 Md. at 363, 910 A.2d at 444.
Clear and convincing evidence supports the hearing judge‘s conclusion that Respondent violated
Clear and convincing evidence also demonstrates that Respondent violated
MLRPC Rule 1.15(a) and (d) (Safekeeping Property)
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.” Attorney Grievance Comm‘n v. Moeller, 427 Md. 66, 73, 46 A.3d 407, 411 (2012). Thus, an attorney‘s failure to maintain a trust account separately from his or her personal funds is violative of this Rule. See id.
Clear and convincing evidence supports the hearing judge‘s conclusion that Respondent violated
Although Bar Counsel alleged that Respondent also violated
theless, Respondent‘s failure to properly maintain client trust account funds and records similarly violates
Specifically, clear and convincing evidence demonstrates that Respondent: 1) conceded to mishandling client matter records and failing to create and maintain required trust account records, in violation of
MLRPC Rule 1.16(d) (Declining or Terminating Representation)
Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client‘s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.
In the absence of a proper charging lien, “[w]hen a client requests his or her file from an attorney at the end of the representation,
Clear and convincing evidence supports the hearing judge‘s conclusion that Respondent violated
MLRPC 8.1(a) (Knowingly Making a False Statement of Material Fact) and (b) (Failure to Cooperate with Bar Counsel Requests for Information)
An applicant for admission or reinstatement to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:
(a) knowingly make a false statement of material fact; or
(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by
Rule 1.6 .
Under
Similarly,
Clear and convincing evidence supports the hearing judge‘s conclusions that Respondent violated
Accordingly, Respondent‘s misrepresentation of the handling of her clients’ cases to Bar Counsel was violative of
Clear and convincing evidence also supports the hearing judge‘s conclusion that Respondent violated
MLRPC 8.4(c) (Dishonesty, Fraud, Deceit or Misrepresentation)
Clear and convincing evidence supports the hearing judge‘s conclusion that Respondent violated
MLRPC Rule 8.4(d) (Conduct that is Prejudicial to the Administration of Justice)
The misappropriation of client funds constitutes dishonest conduct that is prejudicial to the administration of justice. See Kum, supra. See also Attorney Grievance Comm‘n v. Carithers, 421 Md. 28, 56-57, 25 A.3d 181, 197-98 (2011) (holding that the attorney‘s misappropriation of funds and failure to maintain a client trust account was conduct prejudicial to the administration of justice). See Attorney Grievance Comm‘n v. Davy, 435 Md. 674, 707, 80 A.3d 322, 341 (2013) (noting that “the commingling of personal and client funds, including the failure to maintain a separate [client] trust account, is prejudicial to the administration of justice.“).
Clear and convincing evidence supports the hearing judge‘s conclusion that Respondent‘s negligent trust account management and admitted errors was conduct prejudicial to the administration of justice, in violation of
Clear and convincing evidence also supports the hearing judge‘s conclusion that Respondent violated
MLRPC 8.4(a) (Violating the MLRPC)
Clear and convincing evidence supports the hearing judge‘s conclusion that by violating
Sanction
It is well settled that the purpose of attorney discipline is not to punish the erring attorney, but rather, to protect the public. Attorney Grievance Comm‘n v. Mixter, 441 Md. 416, 527, 109 A.3d 1, 68 (2015). Attorney discipline is also intended to deter other lawyers from violating the MLRPC and maintain the integrity of the legal profession. See Adams, 441 Md. at 611-12, 109 A.3d at 126. Thus, “[w]e evaluate an attorney grievance matter on
Respondent did not recommend a sanction. However, Bar Counsel recommended that Respondent be indefinitely suspended, with the right to apply for readmission after six months. Bar Counsel submits that the “core violations” supporting indefinite suspension are “the nature and severity, as well as the type of charges involved, in violation of [MLRPC] 1.1, 1.15(a), 8.4(c), and 8.4(d)[]” and Respondent‘s “failure to create and maintain accurate records of client trust money, in violation of [MLRPC] 1.15(a).”
Bar Counsel directs this Court‘s attention to our opinion in Attorney Grievance Comm‘n v. Mba-Jonas, 397 Md. 690, 919 A.2d 669 (2007) (”Mba-Jonas I“) and Attorney Grievance Comm‘n v. Mba-Jonas, 402 Md. 334, 936 A.2d 839 (2007) (”Mba-Jonas II“) in particular, for the proposition that indefinite suspension is the appropriate sanction for numerous trust account violations and misrepresentations to Bar Counsel during a disciplinary investigation.
In Mba-Jonas I, the attorney entered into a CDA with Bar Counsel to remediate his failure to maintain records of fee disbursements from his escrow account. See id. 397 Md. at 695, 919 A.2d at 672. While under the CDA, the attorney‘s law practice monitor reported to Bar Counsel several instances of irregularities and improper fee disbursements in the attorney‘s escrow account. Id. at 695-97, 919 A.2d at 672-73. Specifically, the attorney‘s account was overdrawn on three occasions, which resulted in overdraft fees, the attorney improperly notated settlemеnt checks, and he used settlement checks for unintended purposes. Id. at 696, 919 A.2d at 673.
The monitor also reported that the attorney maintained inaccurate settlement sheets with minimal accounting records, failed to maintain a ledger, and routinely “post dated check[s] to accommodate clients.” Id. at 697, 919 A.2d at 673. The attorney also conceded that he failed to reconcile his account on a monthly basis and left Personal Insurance Protection funds in the account to cover fees. Id. As a result of the attorney‘s misconduct and non-compliance, the CDA was subsequently revoked. Id. at 695, 919 A.2d at 672.
This Court upheld the conclusions of the hearing judge relative to violations of
In ordering indefinite suspension with the right to apply for readmission after ninety-days, this Court determined that the attorney‘s prior opportunity to remediate his conduct under the CDA was particularly relevant. We reasoned:
[Mba-Jonas] was afforded the opportunity of a conditional diversion agreement. That agreement was terminated when the monitor charged with checking and keeping an eye on [his] escrow account, signaled a problem and it was learned that [he] had not changed his accounting practices.... Moreover, we are satisfied that [an indefinite suspension] should require [Mba-Jonas] to demonstrate lessons learned and, critically,
that the sloppiness20 which has characterized his handling of his escrow account will no longer obtain.
Id. at 690, 703-04, 919 A.2d at 677.
We subsequently readdressed the attorney‘s misconduct in Mba-Jonas II, 402 Md. 334, 936 A.2d 839 (2007). In that matter, the attorney continued to mismanage his escrow account by incurring negative balances and overdrafts, withdrawing more funds from the account than what was received into same, and used funds directed for one client matter in other matters on four occasions. Id. at 339-40, 936 A.2d at 841-42. As a result, we upheld the hearing judge‘s conclusions that the attorney violated
We also acknowledged the hearing judge‘s conclusion that the attorney violated
In determining the attorney‘s sanction, we emphasized the absence of intentional deceit or dishonesty in the attorney‘s misconduct. Thus, recounting the hearing judge‘s findings in both Mba-Jonas I and Mba-Jonas II, we stated:
Neither of the actions against Mba-Jonas involves an intent to defraud, deceive, or steal from his clients. [The hearing judge] found in the previous case that ‘[c]learly, he had no intent to defraud or steal from his clients. In fact, many of his problems resulted from his desire to accommodate his clients and to keep them satisfied with his representation.’ Likewise, in the present matter, [the hearing judge] found that the ‘[c]ourt does not believe—nor has it been suggested—that the state of [Mba-Jonas‘s] escrow account is the result of dishonesty, fraud, deceit or misrepresentation.’
Id. at 346-47, 936 A.2d at 846 (internal citation omitted). As a result, we ordered a continuation of his indefinite suspension with the right to apply for readmission after six months. Id. at 349, 936 A.2d at 847.
Bar Counsel submits that “Respondent‘s case is more significant than Mba-Jonas I in that, she received two CDAs and had numerous trust account violations.” In comparison to Mba-Jonas II, Bar Counsel posits that based upon Respondent‘s “numerous Rule violations and conduct surrounding Ms. Sewell-Carpenter‘s case” she should receive a sanction similar to the attorney in Mba-Jonas II.
We agree. Although Respondent‘s misconduct and resulting Rule violations bear resemblance to that of the attorney in Mba-Jonas I, the instant matter is distinguishable because Respondent had the benefit of two CDAs to remediate the exact misconduct that precipitated the charges against her. Additionally, the evidence demonstrated that Respondent repeatedly failed to rеspond to Ms. Deady‘s and Bar Counsel‘s requests for information
We also acknowledge that the circumstances in the instant matter are similar to Mba-Jonas I and Mba-Jonas II, where the hearing judge concluded that the attorney‘s misconduct was not due to intentional dishonesty or deceit, but “sloppiness.” Here, the hearing judge did not find that Respondent‘s misconduct was a product of intentional dishonesty or deceit, but instead, was due to ignorance of trust account rules, poor law office management, and her illness.
Nonetheless, in determining the appropriate sanction for Respondent‘s misconduct, we must also consider the aggravating and mitigating factors. Pursuant to Standard 9.22 of the American Bar Association Standards for Imposing Lawyer Sanctions, this Court has recognized the following aggravating factors in attorney disciplinary cases:
(a) prior disciplinary offenses; (b) dishonest or selfish motive; (c) a pattern of misconduct; (d) multiple offenses; (e) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency; (f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process; (g) refusal to acknowledge wrongful nature of conduct; (h) vulnerability of victim; (i) substantial experience in the practice of law; (j) indifference to making restitution.
See Attorney Grievance Comm‘n v. Bleecker, 414 Md. 147, 176-77, 994 A.2d 928, 945-46 (2010). This Court also recognizes the following mitigating factors:
[A]bsence of a prior disciplinary record; absence of a dishonest or selfish motive; personal or emotional problems; timely good faith efforts to make restitution or to rectify consequences of misconduct; full and free disclosure to disciplinary board or cooperative attitude toward proceedings; inexperience in the practice of law; character or reputation; physical or mental disability or impairment; delay in disciplinary proceedings; interim rehabilitation; imposition of other penalties or sanctions; remorse; and finally, remoteness of prior offenses.
Attorney Grievance Comm‘n v. Coppola, 419 Md. 370, 407, 19 A.3d 431, 453 (2011).
The hearing judge acknowledged that despite Respondent‘s illness during the period of 2014—when she conceded to having no safeguards in place to check mail or her attorney trust аccount during recuperation from surgery—she still had a professional obligation to protect her clients. The hearing judge also concluded that Respondent‘s illness does not explain her “uncooperative behavior” towards Mr. Karr, Ms. Deady, and Bar Counsel. The hearing judge expressed concern regarding Respondent‘s testimony on July 14, 2015, stating:
[Respondent] represented that the reason she felt a sense of urgency in February of 2013 for Ms. Sewell[-Carpenter] to file a post-judgment motion was that she believed she had to file the motion within ninety days. However, in her letter dated August 10, 2015, Respondent stated that she only testified to that because she heard a ‘more experienced’ attorney tell her that, and she thought she would throw it ‘in the pot’ in her disciplinary case before this [c]ourt.
It is therefore not clear to this [c]ourt of the extent to which Respondent was being completely forthright in her testimony on July 14, 2015.
Nonetheless, the hearing judge acknowledged Respondent‘s surgery and period of recuperation in early 2014 as a mitigating factor, despite the fact that Respondent submitted limited documentation21 evidencing her medical conditions for the time period apart from her testimony concerning her health condition.22
A CDA generally serves as a remedial tool tо assist attorneys’ compliance with the Maryland Rules and Rules of Professional Conduct. Thus, we share in Bar Counsel‘s concern that Respondent‘s failure to adhere to the terms under the CDA and Amended CDA, while continuing to engage in conduct which precipitated her CDA, demonstrates a lack of appreciation of the problem.
While we accept the mitigating factor of Respondent‘s illness during the relevant period, it does not excuse her admitted ignorance of trust account rules; her failure to remediate her misconduct or adhere to the protocols under consecutive CDAs; her lack of cooperation with Ms. Deady and Bar Counsel while under investigation; or her failure to implement safeguards during an illness or otherwise protect her clients’ interests in conformance with the foregoing Rules. Although, during oral argument, Respondent admitted to experiencing difficulties as her mother‘s caretaker until her death, which may have also impacted her practice, we could not ascertain whether this was shared with Bar Counsel or the hearing judge. Accordingly, we order Respondent indefinitely suspended with the right to apply for readmission after six months.
IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING COSTS OF ALL TRANSCRIPTS, PURSUANT TO
136 A.3d 843
Dennis MERCHANT
v.
STATE of Maryland.
Marshall Tyrone Stoddard
v.
Department of Health and Mental Hygiene.
Misc. No. 16, Sept. Term, 2015 & No. 81, Sept. Term, 2015.
Court of Appeals of Maryland.
May 23, 2016.
Notes
Ms. Sewell-Carpenter testified as follows:
[Ms. Stanton]: And when did you initially have your first conversation with [Respondent]?
[Ms. Sewell-Carpenter]: It had to be the early part of—it had to be September—I mean, October or November....
[Ms. Stanton]: And when did you consider [Respondent] your attorney?
[Ms. Sewell-Carpenter]: In February when I—we discussed everything, January/February.... So I think it was the early part of February that we actually started talking and then mid-February, towards the end, is when we made arrаngements to—I paid her and then we really started going on with the case after that. But she told me prior to me paying her what she can and can‘t—you know, what can happen. So it wasn‘t anything that was in black and white. It was conversation-wise....
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) Creation of Records. The following records shall be created and maintained for the rеceipt and disbursement of funds of clients or of third persons:
(1) Attorney Trust Account Identification. An identification of all attorney trust accounts maintained, including the name of the financial institution, account number, account name, date the account was opened, date the account was closed, and an agreement with the financial institution establishing each account and its interest-bearing nature....
(2) Deposits and Disbursements. A record for each account that chronologically shows all deposits and disbursements[.]
(3) Client Matter Records. A record for each client matter in which the attorney receives funds in trust[.]
(a) General Prohibition. An attorney or law firm may deposit in an attorney trust account only those funds required to be deposited in that account by Rule 16-604 or permitted to be so deposited by section b. [not applicable] of this Rule.
(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 creatе a negative balance with regard to an individual client matter or all client matters in the aggregate.