Attorney Grievance v. SilbigerAttorney Grievance v. Silbiger
Attorney Grievance Commission of Maryland v. Clifford Baer Silbiger, Misc. Docket AG No. 57, September Term, 2020, Opinion by Booth, J.
ATTORNEY DISCIPLINE – SANCTIONS – DISBARMENT
Respondent Clifford Baer Silbiger violated the Maryland Attorneys’ Rules of Professional Conduct 19-301.1 (Competence); 19-301.4 (Communication); 19-301.15 (Safekeeping Property); 19-308.1 (Bar Admission and Disciplinary Matters); 19-308.4(a)–(d) (Misconduct); Rule 19-407 (Attorney Trust Account Record-Keeping); Rule 19-408 (Commingling of Funds); Rule 19-410 (Prohibited Transactions); and the Business Occupations and Professions Article §10-306. Mr. Silbiger‘s violations arose from his misappropriation of client and third-party funds; failure to keep the required deposits and balances in his trust account; failure to create and maintain accurate and realistic records of his trust account; improperly commingling his funds with those in his attorney trust account in order to conceal his misconduct; performing prohibited transactions; making disbursements from his client‘s settlement funds without the client‘s knowledge; making cash disbursements; paying personal expenses from his attorney trust account client funds; initially, knowingly and intentionally holding back information and documentation requеsted by Bar Counsel; engaging in dishonest conduct; and engaging in conduct that is prejudicial to the administration of justice.
Considering the nature of Mr. Silbiger‘s misconduct and the various mitigating and aggravating factors present here, the Court of Appeals concluded that disbarment is the appropriate sanction.
Circuit Court for Carroll County Case No.: C-06-CV-20-000424 Argued: March 4, 2022
IN THE COURT OF APPEALS OF MARYLAND
Misc. Docket AG No. 57
September Term, 2020
ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
CLIFFORD BAER SILBIGER
Watts Hotten Booth Biran Gould Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned) McDonald, Robert N. (Senior Judge, Specially Assigned), JJ.
Opinion by Booth, J.
Harrell, J., joins in judgment only.
Filed: May 26, 2022
In
I
Background
A. Procedural Context
On December 9, 2020, the Attorney Grievance Commission of Maryland (“Commission“), acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action (“Petition“) against Respondent, Clifford Baer Silbiger. The Petition alleged that Mr. Silbiger violated the Maryland Attorneys’ Rules of Professional Conduct (“MARPC”)1 in connection with his representation of Shannon Johnson. Specifically, Bar Counsel charged Mr. Silbiger with violating MARPC 19-301.1 (Competence); 19-301.3 (Diligence); 19-301.4(a) and (b) (Communication); 19-301.15(a), (b), and (d) (Safekeeping Property); 19-308.1(b) (Bar Admission and Disciplinary Matters); 19-308.4 (a)-(d) (Misconduct); Maryland Rule 19-404 (Trust Account – Required Deposits)2; Maryland Rule 19-407(a)(2)–(d) (Attorney Trust Account Record-Keeping); Maryland Rule 19-408(a) (Commingling of Funds); Maryland Rule 19-410(a)–(c) (Prohibited Transactions); and Maryland Code, Business Occupations & Professions Article (“BOP”), § 10-306.
Pursuant to
Neither the Commission nor Mr. Silbiger filed exceptions to any of the hearing judge‘s findings of fact or conclusions of law. This Court accepts a hearing judge‘s findings as established when no exceptions are filed.
B. Facts
Mr. Silbiger‘s Law Practice
Mr. Silbiger was admitted to the Bar of Maryland on September 21, 1970. At all times relevant to this proceeding, Mr. Silbiger was a solo practitioner who maintained an office for the practice of law in Westminster, Maryland.
Representation of Shannon Johnson
On September 19, 2016, Shannon Johnson and her two minor children were injured in an automobile collision. The other driver was found to be at fault. Ms. Johnson retained Mr. Silbiger to represent her and her children in connection with their claims against the at-fault driver.
In November 2018, Mr. Silbiger settled Ms. Johnson‘s claims and those of her minor children for a total of $101,000. At the time of settlement, Ms. Johnson had obligations to pay $7,000 to Dan Tannen for “pre-settlement” funding,4 as well as an outstanding Medicaid lien.
On November 21, 2018, Mr. Silbiger deposited the settlement check into his attorney trust account. That same day, he disbursed $1,200 from the settlement funds as a portion of his earned fee. On November 26, Mr. Silbiger made a second disbursement to himself for fees in the amount of $27,466.66. Several days later, on December 3, Mr. Silbiger issued a check in the amount of $7,000 payable to Mr. Tannen. On December 14, Mr. Silbiger made a partial disbursement of the settlement proceeds to Ms. Johnson in the amount of $16,385.97 but continued to hold back funds pending the resolution of her Medicaid lien.
Between December 19, 2018 and January 29, 2019, without Ms. Johnson‘s knowledge or permission, Mr. Silbiger knowingly and intentionally used $27,566.38 of her settlement proceeds to pay expenses associated with his law practice, including payroll for his employees, health insurance benefits, and monthly mortgage payments.
On January 21, 2019, after receiving confirmation that no additional funds were owed to Medicaid, Mr. Silbiger prepared a settlement sheet and wrote Ms. Johnson a check in the amount of $42,951.50 for the remainder of her settlement funds. However, because Mr. Silbiger did not have sufficient funds in his attorney trust account to
On February 4, Ms. Johnson cashed the check for $42,951.50, leaving a balance of $6,714.88 in Mr. Silbiger‘s trust account—insuffiсient funds to cover the trust obligation to Mr. Tannen for his uncashed check in the amount of $7,000.
Between February 6 and February 12, Mr. Silbiger made two additional withdrawals from his trust account in checks made payable to himself. As a result, on February 15, 2019, when Mr. Tannen cashed the $7,000 check, it caused an overdraft in the amount of - $3,985.24 in Mr. Silbiger‘s trust account.
Mr. Silbiger‘s Attorney Trust Account
Mr. Silbiger maintained an attorney trust account at PNC Bank during the time relevant to this case. He admits that he made cash disbursements from his attorney trust account, commingled personal funds with client funds, paid personal expenses directly from his attorney trust account, and maintained negative client matter balances. Between September 2018 and December 2020, Mr. Silbiger wrote 11 checks made payable to cash from his trust account, totaling $34,000. He made another cash withdrawal on November 15, 2019 in the amount of $36,666 for fees earned in another client matter. During the period between December 2018 through March 2019, Mr. Silbiger wrote four checks from his attorney trust account to three different banks for personal expenses totaling $7,391.06. As a result of Mr. Silbiger‘s actions, on several occasions between November 18, 2018 and July 29, 2019, the balance in his attorney trust account fell below the amount he was required to maintain in trust for his clients.
Based upon these transactions, the hearing judge found that Mr. Silbiger failed to safekeep his clients’ funds in his attorney trust account. The hearing judge further determined that, although Mr. Silbiger‘s attorney trust account was out of balance on several occasions, all funds that were owed to all clients and third parties were received without delay.
Bar Counsel‘s Investigation
On February 22, 2019, Bar Counsel received notice from PNC Bank of the February 15, 2019 overdraft that occurred when Mr. Tannen presented the $7,000 check written to him on Mr. Silbiger‘s attorney trust account. That same day, Bar Counsel wrote to Mr. Silbiger, requesting that he explain the reason for the overdraft and provide copies of his client ledgers, deposit slips, cancelled checks, and monthly bank statements from December 2018 through February 2019. Mr. Silbiger responded on March 6, 2019 and explained that the overdraft occurred when funds that should have been deposited into his escrow account were deposited into his regular account in error.5 However, he failed to provide Bar Counsel copies of the documents that had been requested.6
Bar Counsel wrote Mr. Silbiger on July 18, 2019 and requested additional information and records for the period of February 2019 through July 2019, including bank statements, copies of client ledgers, deposit slips, cancelled checks, and monthly bank statements. On September 6, 2019, Mr. Silbiger, through counsel, responded and admitted that without Ms. Johnson‘s knowledge or authorization, he
borrowed $35,000 from the Shannon Johnson settlement.... In this context, the term “borrowed” means that [he] borrowed funds for his own purposes with the intention of repaying the funds within a short period of time, which he did. The term “borrowed” is not meant to imply that [he] had an agreement with Shannon Johnson with regard to thе use of these funds. . . The funds from the settlement of Shannon Johnson‘s claim that [he] borrowed and repaid were not funds that could have been disbursed to Shannon Johnson at the time the funds were borrowed, as these funds were subject to a claim by a lienholder that was then under negotiation. When the lien was compromised, [he] repaid the funds in full to his trust account, and made prompt and full disbursement of all funds due to his client. [He] always intended to repay the borrowed funds. Shannon Johnson was not harmed. When [he] repaid the loan, he initially, and mistakenly, deposited part of the repayment into the wrong account, which was the direct cause of the negative balance on February 15, 2019.
Evidence and Testimony from the Evidentiary Hearing
As stated above, an evidentiary hearing was held on July 7, 2021. The evidence consisted of ten exhibits, including the PNC Bank records pertaining to Mr. Silbiger‘s trust account, a summary of the bank records, the Stipulation (in which Mr. Silbiger admitted to the conduct that was the subject of the hearing), and letters exchanged between Mr. Silbiger‘s counsel and Bar Counsel. Mr. Silbiger testified and called three character witnesses, each of whom had known Mr. Silbiger both personally and professionally for approximately 25–30 years.
Mr. Silbiger testified that he had a thriving lаw practice until 2018 when he spent a considerable amount of money on marketing and advertising in an effort to compete with larger law firms. Unfortunately, this investment did not pay off, and his practice began to decline. When Mr. Silbiger‘s cash flow diminished, and he was faced with office expenses, payroll, mortgages, and other expenses, he became distressed. He testified that he made the ill-fated decision to borrow funds from his attorney trust account to “rob Peter to pay Paul” because “I was so anguished over the fact that I couldn‘t satisfy my
Mr. Silbiger also testified concerning the presence of several mitigating factors that we will discuss more fully herein. In addition to his own testimony, Mr. Silbiger presented three witnesses who testified about his character and reputation. Lance Montour, Esquire testified that he worked for Mr. Silbiger from 1996 through 1999, and since then, they have remained “social friends” and “professional colleagues.” Mr. Montour testified that Mr. Silbiger has a big heart, would reduce his fees when clients could not pay, and treats clients and other attorneys with respect and professionalism. According to Mr. Montour, Mr. Silbiger is trustworthy, honest, a person of integrity, and well-respected in the legal community. Mr. Montour stated that, in his 25 years of professional interactions with Mr. Silbiger, he was unaware of any other violations of the professional rules of conduct and was certain that Mr. Silbiger‘s misconduct here was an isolated incident.
William Finch, Jr., Esquire testified that he has known Mr. Silbiger since the early 1980s. They became acquainted through the Carroll County Bar Association and over the years, have often discussed professional issues relating to cases such as witnesses, experts, and tactical issues. Mr. Finch described Mr. Silbiger as always being “very well prepared” and “very professional, very smooth, and very warm and friendly.” He also testified that he had never observed Mr. Silbiger to be “anything other than trustworthy or a person of integrity[]” and that Mr. Silbiger “enjoys an excellent reputation” in the legal community. Mr. Finch stated that he was surprised to hear about the misconduct charges, which Mr. Silbiger had voluntarily shared with him, which had caused Mr. Silbiger a great deal of anguish. Mr. Finch stated that Mr. Silbiger had made no effort to try to “justify or mitigate” his wrongdoing. Mr. Finch noted that because Mr. Silbiger has “had a long and honorable career[,]” he hoped that Mr. Silbiger would be given a “second chance,” a chance at “professional redemption.”
Judge Joseph Barry Hughes testified that he had known Mr. Silbiger since the early 1980s, prior to Judge Hughes being appointed to the bench. Judge Hughes, initially in his capacity as a colleague and, later, as a judge, described him as being “very professional,” “friendly,” аnd “extremely competent.” After becoming a judge, his impression of Mr. Silbiger‘s preparation and interactions with clients and opposing counsel was that Mr. Silbiger was “[s]uperior” and “in the upper tier of really all of the attorneys that I have dealt with over the years, both on the bench and before that[.]” Judge Hughes described
it is absolutely essential for both the fact finder and for the Court of Appeals to know the full counter weight against the conduct that [Respondent] has been charged with so that the scales can be true, and that both Judge Becker and the Court of Appeals can make an informed and accurate, and hopefully compassionate, decision.
II
Violations of the Rules of Professional Conduct
Based on the record and the above-summarized findings of fact, the hearing judge concluded, by clear and convincing evidence, that Mr. Silbiger violated MARPC 1.1, 1.4, 1.15, 8.1, 8.4(a)-(d),
Competence—Failing to Meet Basic Standards (1.1)
“An attorney shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Rule 1.1. The hearing judge concluded that Mr. Silbiger failed to satisfy the standards of competence when he: (1) failed to safekeep client and third-party funds; (2) failed to keep the required deposits and balances in his trust account; (3) failed to keep accurate and realistic records of his trust account; (4) improperly commingled his funds with those of his trust fund; and (5) performed prohibited transactions. Attorney Grievance Comm‘n v. Smith, 443 Md. 351, 369 (2015) (citing Attorney Grievance Comm‘n v. Mungin, 439 Md. 290, 305 (2014) (“an attorney demonstrates his or her incompetence by failing to properly maintain settlement monies in a trust account resulting in negative balances“)); Attorney Grievance Comm‘n v. Blatt, 463 Md. 679, 699 (2019) (“The failure to maintain funds received on behalf of a client in a trust account demonstrates incompetence.”) (citation omitted).
We agree with the hearing judge that the record supports clear and convincing evidence that Mr. Silbiger violated Rule 1.1, and that the violations, taken separately or togеther, constitute a “lack of competence and proficiency in the practice of law, regardless of any intent not to permanently deprive clients of their funds.”
Failure to Communicate (1.4)
Rule 1.4 provides that:
(a) An attorney shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client‘s informed consent, as defined in Rule 19-301.0(f)(1.0), 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 attorney‘s conduct when the attorney knows that the client expects assistance not permitted by the Maryland
Attorneys’ Rules of Professional Conduct or other law. (b) An attorney shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
The hearing judge concluded that Mr. Silbiger violated Rule 1.4 when—without Ms. Johnson‘s knowledge or authorization—he made disbursements from her settlement funds. These disbursements constituted an intentional misappropriation. Furthermore, Mr. Silbiger failed to inform Ms. Johnson of his misappropriation of her funds. We agree with the hearing judge‘s conclusion that Mr. Silbiger violated Rule 1.4.
Failure to Safekeep Property (1.15)
Rule 1.15(a) provides, in relevant part:
(a) An attorney shall hold property of clients or third persons that is in an attorney‘s possession in connection with a representation separate from the attorney‘s own property. Funds shall be kept in a separate account maintained pursuant to Title 19, Chapter 400 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 attorney and shall be preserved for a period of at least five years after the date the record was created.
(b) An attorney may deposit the attorney‘s own funds in a client trust account only as permitted by Rule 19-408 (b).
* * *
(d) Upon receiving funds or other property in which a client or third person has an interest, an attorney 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, an attorney 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.
This Court has held that “withdrawing funds from a trust account for personal matters also constitutes a violation of Rule 1.15(a).” Attorney Grievance Comm‘n v. Bell, 432 Md. 542, 553 (2013). Furthermore, “[t]he mere fact that the balance in an attorney trust account falls below the total amounts held in trust supports a prima facie finding of [a] violation of [Rule 1.15.]” Id. at 552–53 (alteration in original) (quoting Attorney Grievance Comm‘n v. Glenn, 341 Md. 448, 472 (1996)). Moreover, “funds shall be kept in a separate account . . . records shall be created and maintained . . . and [c]omplete records of the account funds and of other property shall be kept by the attorney and shall be preserved for a period of at least five years . . . .” Rule 1.15(a). In Attorney Grievance Comm‘n v. Gelb, 440 Md. 312, 325 (2014) this Court held that the attorney‘s “lack of proper record-keeping, combined with his mishandling of the funds in his attorney trust account . . . [rose] to a level of incompetent representation in violation of [MARPC 1.1].”
The hearing judge found, and Mr. Silbiger admitted, that Mr. Silbiger made cash disbursements and paid personal expenses from his attorney trust account. In conjunction with these actions, he wrote checks from his attorney trust account to Sandy Spring Bank, First National
Mr. Silbiger asserts that he “always intended to repay the ‘borrowed’ funds[,]” and that Ms. Johnson “was not harmed.” This Court has expressed concerns regarding potential injuries to which a violation of Rule 1.15 could lead.8 “We cannot understate the importance of holding funds in escrow in accordance with Rule 1.15 and how the Rule reinforces the public‘s confidence in our legal system. Escrow accounts serve as sanctuary for client funds from the attorney‘s creditors.” Attorney Grievance Comm‘n v. Sheridan, 357 Md. 1, 31 (1999).
We agree with the hearing judge that Mr. Silbiger violated Rule 1.15 when he made cash disbursements from his trust account, commingled personal funds with client funds, paid personal expenses directly from his attorney trust account, and maintained negative client matter balances.
Failure to Respond to Bar Counsel‘s Request for Information (8.1)
It goes without saying that cooperation with Bar Counsel‘s investigation is imperative. Rule 8.1(b) provides, in part, that an attorney shall not “fail to disclose a fact necessary to corrеct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from [a] . . . disciplinary authority[.]”
While the information Mr. Silbiger provided to Bar Counsel regarding the error made in depositing funds into the wrong account was true, he acknowledged that he knew that full disclosure of the information requested would expose the extent of his misappropriation. The hearing judge observed that Mr. Silbiger fully responded to Bar Counsel‘s second request in a timely manner and “never gave an excuse or prevaricated as to the overall delay.”
We agree with the hearing judge that Mr. Silbiger violated Rule 8.1 when, in his initial response to Bar Counsel‘s February 22, 2019 letter, he knowingly and intentionally held back information and documentation that he knew would reveal his misconduct.
General Misconduct (8.4)
Rule 8.4(a) provides that an attorney commits professional misconduct if the attorney “violate[s] or attempt[s] to violate the [MARPC], knowingly assist[s] or induce[s] another to do so, or do so through the acts of another.” As a result of Mr. Silbiger committing other disciplinary rules, the hearing judge found, and we agree, that he violated Rule 8.4(a).
Under Rule 8.4(b), it is professional misconduct for an attornеy to “commit a criminal act that reflects adversely on the attorney‘s honesty, trustworthiness or fitness as an attorney in other respects[.]” The hearing judge found that Mr. Silbiger violated Rule 8.4(b) when he misappropriated client funds and used the funds to pay for personal and business expenses. The hearing judge further observed
Rule 8.4(c) provides that an attorney who engages in “conduct involving dishonesty, fraud, deceit or misrepresentation” commits professional misconduct. The hearing judge concludеd that Mr. Silbiger violated Rule 8.4(c) by engaging in dishonest conduct, and we agree. The hearing judge stated that there was clear and convincing evidence that Mr. Silbiger “exhibited a lack of straightforwardness, probity, and integrity in his conduct[,]” and that the misappropriation of client funds was “dishonest and misrepresentative behavior.” See Smith, 443 Md. at 376 (citing Attorney Grievance Comm‘n v. Thomas, 440 Md. 523, 555 (2014) (“Attorneys violate [MARPC] 8.4(c) when they . . . conceal material information from their clients, even if they have not misrepresented explicitly the information.“)). We agree that, by his omissions, Mr. Silbiger concealed from Ms. Johnson that he had misappropriated her settlement funds. At oral argument, when asked by the Court if Ms. Johnson “ever found out what he did,” Mr. Silbiger‘s counsel indicated that Ms. Johnson likely does not know that Mr. Silbiger “borrowed” her funds, nor did she apparently suffer any harm because Mr. Silbiger replaced the funds, making his trust account whole. The fact that Ms. Johnson may still not be aware of Mr. Silbiger‘s misconduct does not excuse it—to the contrary, the continued omission is troubling.
The hearing judge concluded that Mr. Silbiger violated Rule 8.4(d) as contended by the Commission. Under Rule 8.4(d), an attorney commits professional misconduct when he “engage[s] in conduct that is prejudicial to the administration of justice[.]” Mr. Silbiger fаiled to safekeep and maintain client funds in his attorney trust account, commingled funds, and paid for personal and business expenses from his trust account. “We have long recognized that the failure to maintain settlement funds intact until disbursed—the commingling of personal and client funds—constitutes a violation of [MARPC] 8.4(d).” Attorney Grievance Comm‘n v. Maignan, 390 Md. 287, 297 (2005). Despite Mr. Silbiger‘s intent to replenish the funds in a timely manner, the hearing judge found that he violated the law and ethical rules, and that his “conduct certainly would negatively impact a member of the public‘s perception of and trust in the legal profession and the legal system, and, therefore, it was prejudicial to the administration of justice.” In Attorney Grievance Comm‘n v. Gallagher, 371 Md. 673, 713 (2002), we stated that “[i]f this Court were not to sanction respondent severely, other lawyers would not receive appropriate guidance regarding the standards to which all should be held and public confidence in the legal profession might be greatly diminished.”
Attorney Trust Account Record-Keeping (Md. Rule 19-407)
The hearing judge concluded, and we agree, that Mr. Silbiger violated
Commingling of Funds (19-408)
Prohibited Transactions (19-410)
(a) Generally. An attorney or law firm may not borrow or pledge any funds required by the Rules in this Chapter to be deposited in an attorney trust account, obtain any remuneration from the financial institution for depositing any funds in the account, or use any funds for any unauthorized purpose.
(b) No Cash Disbursements. An instrument drawn on an attorney trust account may not be drawn payable to cash or to bearer, and no cash withdrawal may be made from an automated teller machine or by any other method. All disbursements from an attorney trust account shall be made by check or electronic transfer.
(c) Negative Balance Prohibited. No funds from an attorney trust account shall be disbursed if the disbursement would create a negative balance with regard to an individual client matter or all client matters in the aggregate.
Mr. Silbiger admitted to misappropriating Ms. Johnson‘s funds without her knowledge or authorization; using the funds for unauthorized purposes; writing 11 checks—made payable to cash—which totaled $34,000; making a cash withdrawal
Maryland Code, Business Occupations & Professions, § 10-306
III
Sanction
Bar Counsel recommends that Mr. Silbiger be disbarred from the practice of law. In support of this recommendation, Bar Counsel cites to Mr. Silbiger‘s multiple violations of the MARPC and this Court‘s well-established case law, which sets forth that when an attorney engages in knowing and intentional conduct that involves the misappropriation of funds, disbarment is warranted. Mr. Silbiger, however, asserts that this case “has always been about mitigation and the appropriate sanction.” Although Mr. Silbiger acknowledges the serious nature of his misconduct, he argues that disbarment is not warranted in his case, because he contends that the substantial number of mitigating factors outweigh the aggravating factors. During oral argument, counsel for Mr. Silbiger requested that this Court impose a sanction of less than disbarment and indicated that the more appropriate sanction was a definite six-month suspension.
As we have repeated numerous times, when this Court determines a sanction in an attorney discipline case, we do so with the primary purpose of protecting the public and deterring future misconduct rather than to punish the attorney. In evaluating each attorney grievance matter to determine the sanction to be imposed, “we typically consult the list of aggravating and mitigating factors developed by the American Bar Association.” Attorney Grievance Comm‘n v. Ibebuchi, 471 Md. 286, 309 (2020). Neither party filed any exceptionsto the hearing judge‘s findings with respect to the aggravating and mitigating factors established by the evidence.
A. Aggravating Factors11
The hearing judge found clear and convincing evidence of four aggravating
B. Mitigating Factors13
With respect to mitigating factors, the hearing judge found that Mr. Silbiger established the presence of the following mitigating factors by a preponderance of theevidence: (1) the absence of a prior disciplinary record; (2) timely good faith efforts to rectify the consequences of his misconduct; (3) a good reputation in the legal community; (4) genuine remorse for his conduct; (5) full and free disclosure to the Commission or a cooрerative attitude toward the attorney discipline proceeding14;
The hearing judge commented on the compelling testimony of Mr. Silbiger‘s character witnesses, who testified to his “unblemished record and reputation as an otherwise competent, careful attorney who is always attentive to and respectful of others and with an excellent reputation as an ethical practitioner with this subject episode being the only black mark against him in over 50 years of practice.” The hearing judge also observed that Mr. Silbiger “consistently and candidly took full and knowing responsibility for his actions,” and “was very forthright from the outset . . . never affirmatively denying these violations, but acknowledging his guilty conduct, shame, and embarrassment.”
In addition to paying back the funds that he misappropriated from his trust account, the hearing judge found credible Mr. Silbiger‘s testimony that he did not intend to permanently deprive the client and third party of the funds. The hearing judge stated that Mr. Silbiger‘s intent to repay the funds is “bolstered by the fact that on January 29, 2019, [Mr. Silbiger] deposited $35,000 of his own funds into this attorney trust account,” despite recognizing that repaying the client funds from his personal funds was another violation of the professional rules.
In his consideration of the mitigating factors, the hearing judge observed that Mr. Silbiger
[a]cknowledged that he had relatively easy access to funds from an investment with a partner in a marina in Anne Arundel County, which eventually sold for $7.5 million shortly after these misappropriations, which he could have used to meet the then unpaid expenses of his law practice, but instead was too proud and embarrassed to ask for that money from his investment partner. [Mr. Silbiger] further indicated that his knowing misappropriation was only temporary, that he kept track of the wrongful disbursements on a yellow legal pad, and that it was always his intent to replenish these trust monies timely so that neither the client nor any of the related lienholders suffered any delays or losses in receiving the funds, which in fact did occur before the Petitioner‘s involvement herein.
C. Imposition of Sanction
As we consider the aggravating and mitigating circumstances in connection with the imposition of a sanction, we begin with the notion that in cases involving intentional dishonesty, disbarment is ordinarily warranted. Attorney Grievance Comm‘n v. Bonner, 477 Md. 576, 621 (2022) (collecting cases). In two recent cases, we conducted a survey of the sanctions that this Court has imposed in the two decades since this Court decided Attorney Grievance Comm‘n v. Vanderlinde, 364 Md. 376 (2001)—the seminal case thatestablished the standard for determining the sanction in cases
In Collins, we examined our sanctions jurisprudence involving intentional dishonesty since Vanderlinde, noting multiple instances in which we imposed a sanction less than disbarment, despite the absence of compelling extenuating circumstances that were determined to be the “root cause” of the misconduct at issue, which would thereby justify the imposition of a lesser sanction. Collins, 477 Md. at 518-30.17 Based upon our survey of cases, we observed that
[w]hat can be gleaned from the sanctions imposed in cases involving intentional dishonesty post-Vanderlinde in recent years, is that, increasingly, we have not imposed the sanction of disbarment where the dishonest conduct at issue does not involve theft, fraud, harm to a client or third party, or the intentional misappropriation of funds. We have on multiple occasions imposed a sanction less than disbarment in cases involving intentionaldishonest conduct where there was no theft or intentional misappropriation of funds by the attorney, the attorney had not benefitted or profited from the misconduct, and no client had been harmed. Going forward, it is clear that cases involving dishonesty and knowingly made false statements will be assessed on an individual basis to determine whеther the misconduct at issue gives rise to deployment of the standard set forth in Vanderlinde, namely, whether compelling extenuating circumstances that are the “root cause” of the misconduct are required to warrant a sanction less than disbarment.
In Bonner, we made an additional observation concerning cases in which “disbarment” was the appropriate sanction, as opposed to the “non-disbarment” cases involving intentional dishonesty. 477 Md. at 622. Specifically, we pointed out that, “although these ‘non-disbarment’ cases involve intentional dishonest conduct, they have a common nexus—specifically, there was no theft or intentional misappropriation of funds by the attorney, and the attorney did not benefit or profit from the misconduct.” Id. Indeed, in the more than 20 years since our decision in Vanderlinde, there do not appear to be any cases in which this Court, in the exercise of its original jurisdiction,18 imposed a sanction less than disbarment where the intentional dishonesty involved misappropriation of funds or theft. See, e.g., Bonner, 477 Md. at 627 (disbarment was the appropriate sanction where the attorney misappropriated funds, engaged in elaborate lies to his partners, and created false calendar and false time entries tо hide his actions); Vanderlinde, 364 Md. 376,(underlying misconduct involved theft of funds from an employer); Attorney Grievance Comm‘n v. Levin, 438 Md. 211 (2014) (disbarring attorney who misrepresented his caseload and anticipated fees to his employer by creating fictitious clients and paperwork in order to obtain additional salary); Attorney Grievance Comm‘n v. Vanderslice, 435 Md. 295 (2013) (rejecting the imposition of reciprocal discipline of a one-year suspension in favor of disbarment where the attorney intentionally committed theft eight times over a period of ten months); Attorney Grievance Comm‘n v. Carithers, 421 Md. 28 (2011) (disbarring attorney for conduct including misappropriation of attorney‘s fees owed to his law firm); Attorney Grievance Comm‘n v. Weiss, 389 Md. 531 (2005) (declining to impose reciprocal discipline of suspension, in favor of disbarment, where attorney misappropriated funds from his law firm in the District of Columbia); Attorney Grievance Comm‘n v. Vlahos, 369 Md. 183 (2002) (disbarment was the appropriate sanction where attorney misappropriated funds belonging to his law firm over a period of approximately one and one-half years); Attorney Grievance Comm‘n v. Spery, 371 Md. 560 (2002) (disbarment was the appropriate sanction where an attorney misappropriated $47,821.16 from his real estate partnership over a period of five years and made misrepresentations to his partners to conceal the theft).
To support his argument that we should impose a sanction less than disbarment here, Mr. Silbiger points out that in Collins, we acknowledged that disbarment is not always warranted even where the Vanderlinde standard is not satisfied. Collins, 477 Md. at 530. Moreover, he notes that we reiterated that we do not apply a “bright-line rule and will look at the individual facts and circumstances of the particular case[]” in determining theappropriate sanction. Bonner, 477 Md. at 621. To justify a lesser sanction here, Mr. Silbiger points to the considerable mitigating circumstances that were established.
Mr. Silbiger is correct that we will not always impose a sanction of disbarment for intentional dishonesty in the absence of the Vanderlinde standard. He is also correct that this Court has stated that intentional misconduct does not result in the imposition of a bright-line rule in which we always impose a sanction of disbarment. In other words, when imposing a sanction, we consider the individual facts and circumstances of each particular case—including the nature of the specific ethical rule or rules that have been violated, as well as the aggravating and mitigating factors established. That said, as we noted above, in the decades since our pronouncement of the Vanderlinde standard, we have not imposed a sanction lеss than disbarment where the underlying conduct involves theft or misappropriation of funds, and we decline to do so here. Our unwillingness to impose a sanction less than disbarment here is not based upon the application of a bright-line rule, and we have carefully considered the presence of the aggravating and mitigating circumstances established. Some of the most difficult attorney discipline cases for this Court are those in which the attorney, like Mr. Silbiger, has had a long and distinguished career. We have considered the credible testimony of the character witnesses who, to quote the hearing judge, all attested to Mr. Silbiger‘s “unblemished record and reputation as an otherwise competent, careful attorney who is always attentive to and respectful of others and with an excellent reputation as an ethical practitioner with this subject episode being the only black mark against him in over 50 years of practice.” We have considered Mr. Silbiger‘s reputation, the genuine remorse found by the hearing judge, the candor andresponsibility that he has taken, and the fact that no clients were harmed by his actions—which in essence, amount to taking a short term, interest-free loan from the client without her
Judge Harrell joins in the judgment only.
IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING COSTS OF ALL TRANSCRIPTS, PURSUANT TO MARYLAND RULE 19-709(d), FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST CLIFFORD BAER SILBIGER.
Notes
(a) Creation of Records. The following records shall be created and maintained for the recеipt 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, as follows:
- (A) for each deposit, a record made at or near the time of the deposit that shows (i) the date of the deposit, (ii) the amount, (iii) the identity of the client or third person for whom the funds were deposited, and (iv) the purpose of the deposit;
- (B) for each disbursement, including a disbursement made by electronic transfer, a record made at or near the time of disbursement that shows (i) the date of the disbursement, (ii) the amount, (iii) the payee, (iv) the identity of the client or third person for whom the disbursement was made (if not the payee), and (v) the purpose of the disbursement;
- (C) for each disbursement made by electronic transfer, a written memorandum authorizing the transaction and identifying the attorney responsible for the trаnsaction.
- (3) Client Matter Records. A record for each client matter in which the attorney receives funds in trust, as follows:
- (A) for each attorney trust account transaction, a record that shows (i) the date of the deposit or disbursement; (ii) the amount of the deposit or disbursement; (iii) the purpose for which the funds are intended; (iv) for a disbursement, the payee and the check number or other payment identification; and (v) the balance of funds remaining in the account in connection with the matter; and
- (B) an identification of the person to whom the unused portion of a fee or expense deposit is to be returned whenever it is to be returned to a person other than the client.
- (4) Record of Funds of the Attorney. A record that identifies the funds of the attorney held in each attorney trust account as permitted by
Rule 19-408 (b) .
(b) Monthly Reconciliation. An attorney shall cause to be created a monthly reconciliation of all attorney trust account records, client matter records, records of funds of the attorney held in an attorney trust account as permitted by
(c) Electronic Records. Whenever the records required by this Rule are created or maintained using electronic means, there must be an ability to print a paper copy of the records upon a reasonable request to do so.
(d) Records to be Maintained. Financial institution month-end statements, any canceled checks or copies of canceled checks provided with a financial institution month-end statement, duplicate deposit slips or deposit receipts generated by the financial institution, and records created in accordance with section (a) of this Rule shall be maintained for a period of at least five years after the date the record was created.
We have recognized the following aggravating factors when considering the imposition of sanctions:
(1) prior attornеy discipline; (2) a dishonest or selfish motive; (3) a pattern of misconduct; (4) multiple violations of the [MARPC]; (5) bad faith obstruction of the attorney discipline proceeding by intentionally failing to comply with the Maryland Rules or orders of this Court or the hearing judge; (6) submission of false evidence, false statements, or other deceptive practices during the attorney discipline proceeding; (7) a refusal to acknowledge the misconduct‘s wrongful nature; (8) the victim‘s vulnerability; (9) substantial experience in the practice of law; (10) indifference to making restitution or rectifying the misconduct‘s consequences; (11) illegal conduct, including that involving the use of controlled substances; and (12) likelihood of repetition of the misconduct.
Attorney Grievance Comm‘n v. Sperling, 459 Md. 194, 275 (2018) (citation omitted).
This Court has recognized the following mitigating factors when considering the imposition of sanctions:
(1) the absence of prior attorney discipline; (2) the absence of a dishonest or selfish motive; (3) personal or emotional problems; (4) timely good faith efforts to make restitution or to rectify the misconduct‘s consequences; (5) full and freе disclosure to the Commission or a cooperative attitude toward the attorney discipline proceeding; (6) inexperience in the practice of law; (7) character or reputation; (8) a physical disability; (9) a mental disability or chemical dependency, including alcoholism or drug abuse, where: (a) there is medical evidence that the lawyer is affected by a chemical dependency or mental disability, (b) the chemical dependency or mental disability caused the misconduct, (c) the lawyer‘s recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation, and (d) the recovery arrested the misconduct, and the misconduct‘s recurrence is unlikely; (10) delay in the attorney discipline proceeding; (11) the imposition of other penalties or sanctions; (12) remorse; (13) remoteness of prior violations of the [MARPC]; and (14) unlikelihood of repetition of the misconduct.
Sperling, 459 Md. at 277-78 (citation omitted).
In Attorney Grievance Commission v. Vanderlinde, 364 Md. 376, 413-14 (2001), we stated that:
in cases of intentional dishonesty, misappropriation cases, fraud, stealing, serious criminal conduct and the like, we will not accept as “compelling extenuating circumstances,” anything less than the most serious and utterly debilitating mental or physical health conditions, arising from any source that is the “root cause” of the misconduct and that also result in an attorney‘s utter inability to conform his or her conduct in accordance with the law and with the [MARPC]. Only if the circumstances are that compelling, will we even consider imposing less than the most severe sanction of disbarment in cases of stealing, dishonesty, fraudulent conduct, the intentional misappropriation of funds or other serious criminal conduct, whether occurring in the practice of law, or otherwise.
(Emphasis in original).