ATTORNEY GRIEV. COMM'N OF MARYLAND OF MARYLAND v. Owrutsky

McAULIFFE, Judge. The Attorney Grievance Commission seeks disciplinary action against Morton J. Owrutsky, alleging misconduct in the handling of a client’s funds as attorney in fact, and misconduct during his service as personal representative and trustee in closely related estates. Bar Counsel recommends disbarment. Respondent denies any wrongdoing, and alternatively suggests that if the record demonstrates any misconduct it is of a character warranting no more than a reprimand.

I. Respondent has been a member of the Maryland Bar for nearly 30 years, and maintains an office for the practice of law in Salisbury, Maryland. He met Joseph Peigert in 1964, and thereafter represented Mr. Peigert and his wife in various business and personal matters. Mr. Peigert and respondent appear to have been close personal friends. In August, 1975, respondent prepared a will for Mr. Peigert, in which respondent and Doris McMahon, Mr. Peigert’s daughter, were named as co-personal representatives.

The will, ³³⁷ after providing for a number of specific bequests totaling $33,000, established a marital and a nonmarital or “second” trust. Upon the death of Mrs. Peigert, the remainder of the marital trust was to become a part of the second trust, 1 and the second trust was to be divided into three shares for the benefit of Mr. Peigert’s daughter, his son, and a class consisting of his then living grandchildren. In October, 1975, respondent, at the request of Mr. Peigert, opened a bank account at Second National Building and Loan, Inc. (Second National) in the name of “Morton J. Owrutsky, Attorney for Joseph Peigert,” and deposited more than $78,000 received from the proceeds of sale of some of Mr. Peigert’s property. Mr. Peigert died on 2 February 1976, leaving an estate of about $778,000, consisting of $611,000 in cash, certificates of deposit, and bank accounts; $10,000 in stocks; $2,000 in tangible personal property; and $155,000 in real estate.

Respondent immediately began to collect the liquid assets of the estate, and deposited them in the Second National account. At the same time, respondent opened a bank account at Truckers & Savings Bank, in the name of the estate. Through 1 February 1980, however, funds belonging to the estate and to the trusts created by Mr. Peigert’s will were also maintained in and disbursed from the clients’ fund account of respondent’s law firm. Meanwhile, on 5 March 1976, respondent supervised the execution by Mrs. Peigert of a codicil to her 1968 will, and a broad power of attorney in favor of respondent, both of which had been prepared by respondent.

On 20 March 1976, respondent opened another account at Second National, entitled “Morton J. Owrutsky, Attorney for Ella Peigert.” On 17 June 1977, Mrs. Peigert died. Respondent, the surviving personal representative under her will, did not ³³⁸ open her estate until 16 October 1978. The value of this estate was approximately $134,000, consisting of $51,000 in jewelry, $35,000 in real property, $46,000 in cash and receivables, and $2,000 in tangible personal property. Under the terms of Mrs. Peigert’s will, all of her estate went into the second trust established by the will of her late husband.

This estate was not closed until February, 1984. In May, 1978, respondent opened three accounts in Truckers & Savings Bank, one for each of the beneficiaries, or class of beneficiaries, of the second trust. On 28 April 1984, Mrs. McMahon filed a complaint with the Attorney Grievance Commission, alleging multiple violations of the Code of Professional Responsibility 2 by respondent. Upon receipt of the complaint, the Office of Bar Counsel conducted an investigation and on 21 October 1985 referred the matter to an Inquiry Panel pursuant to Maryland Rule BV6.

Hearings were held in December, 1985, and the report of the Inquiry Panel was forwarded to the Review Board in May, 1986. The Review Board remanded the case to the Inquiry Panel for further information concerning 12 specified subjects. After some delay, additional hearings were held in March, 1987, after which the record was held open until July to permit the parties to file memoranda in support of their respective positions. The Inquiry Panel forwarded its supplemental report to the Review Board in July, 1988.

The Review Board directed Bar Counsel to file a complaint for disciplinary action with this Court, and that complaint was filed on 16 December 1988. This Court referred the matter to Judge Arthur M. Ahalt for further proceedings, pursuant to Md. Rule BV9. On 3 February 1989, respondent filed a motion to dismiss the complaint, contending he had been prejudiced by what he considered to be an inordinate delay in the filing of charges ³³⁹ against him. Judge Ahalt heard arguments and received memoranda of the parties with respect to the motion to dismiss, and that motion is now before us for decision.

Judge Ahalt also conducted a hearing on the underlying charges, and filed findings of fact and conclusions of law, determining that respondent is guilty of multiple violations of the Code of Professional Responsibility. Respondent filed exceptions, contending the evidence is insufficient to prove any violation. Petitioner filed exceptions to two findings of fact made by Judge Ahalt, and recommends disbarment as the appropriate sanction for the violations found. We first consider respondent’s motion to dismiss.

II

Respondent concedes that disciplinary proceedings are not barred by a general statute of limitations. Anne Arundel Co. Bar Ass’n v. Collins, 272 Md. 578, 582 , 325 A.2d 724 (1974). He argues, however, that this action is barred by laches. In rejecting a similar contention in Collins , we quoted with approval the following statement of the Supreme Court of Oregon in In re Weinstein, 254 Or. 392 , 459 P.2d 548, 549 (1969), cert. denied, 398 U.S. 903 , 90 S.Ct. 1689 , 26 L.Ed.2d 61 (1970): It is unnecessary to define in this case the proper remedy for vexatious and unreasonable delay on the part of the Bar.

None has been shown in this case. It ought to be made clear, however, that the primary purpose of professional disciplinary proceedings is to protect the public. The punishment of an offending member of the profession is indeed a serious matter, but it is incidental to the protection of the public. If the conduct of a member of the Bar disqualifies him from the practice of law, it would not be in the public interest to dismiss the disciplinary proceedings for no reason other than the Bar’s failure to prosecute them with the proper dispatch. 459 P.2d at 549 (emphasis added). ³⁴⁰ Similarly, in Attorney Griev.

Comm’n v. Kahn, 290 Md. 654, 684 , 431 A.2d 1336 (1981), this Court said that “[bjecause the purpose of disciplinary action against an attorney is to protect the public, dismissal of the disciplinary petition for the sole reason that the Attorney Grievance Commission failed to proceed with the proper dispatch is manifestly unwarranted.” Respondent argues that in both Kahn and Collins we relied upon the absence of prejudice in finding the defense of laches inapplicable. He suggests that he has been prejudiced because his bookkeeper, Bette Jane Patt, who handled much of the accounting and transfers of funds in connection with the estates and the trust, died in 1988. Bar Counsel responds by pointing out that the bookkeeper testified before the Inquiry Panel on two separate occasions, while under oath and subject to cross-examination, and that her testimony was recorded on both occasions. Thus, Bar Counsel suggests, her testimony was admissible as a “prior testimony” exception to the hearsay rule.

See 6 L. McLain, Maryland Evidence § 804.1 (1987). Respondent did not seek to introduce any of the bookkeeper’s testimony in the hearing before Judge Ahalt. Judge Ahalt found that respondent had not been prejudiced by the delay in filing charges. We agree, and we deny the motion to dismiss.

Turning to the substantive issues, we consider the violations found by Judge Ahalt, and respondent’s exceptions to those findings.

III

Judge Ahalt found that respondent violated Disciplinary Rule (DR) 9-102(A) and Art. 10, § 44, Maryland Code (1957, 1981 Repl.Vol.) 3 by keeping estate funds in his firm’s escrow account from 1976 until 1980. Respondent argues that neither the disciplinary rule nor the statute prohibited ³⁴¹ the deposit of the funds of several clients in a common escrow account, and that he did not understand that the funds of a decedent’s estate must be maintained in a separate account until this Court said so in Attorney Griev. Comm’n v. Boehm, 293 Md. 476 , 479 n. 2, 446 A.2d 52 (1982). 4 Respondent is correct in his assertion that DR 9-102(A) and Art. 10, § 44 focused on the prohibition against commingling of personal or business funds with funds belonging to others. Although what we said in Boehm continues to be the law of this State, 5 we recognize that respondent did not maintain estate funds in his clients’ fund account after Boehm was decided, and we do not believe that a violation of DR 9-102(A) or Art. 10, § 44 has been shown in this instance.

Accordingly, respondent’s exception is sustained as to this finding.

IV

Judge Ahalt found that respondent violated Disciplinary Rules 1-102(A)(4), (5), and (6) by taking fees from both estates before they were earned and before approval of the Orphans’ Court had been sought or obtained, and in taking fees from both decedent’s estates without any approval of the Orphans’ Court. He found that: On December 1, 1976, the respondent disbursed to his law firm fees totalling $30,000 from the funds of the estate of Joseph Peigert being maintained in the law ³⁴² firm’s escrow account. This was done prior to performance of any substantial services to the estate and without the approval of the Orphans’ Court. On October 10, 1978, the respondent filed a Petition for Personal Representative’s Commission in the amount of $24,997.74 which was approved.

No fee petition was ever filed in that estate either for the $30,000 fee or for the difference between that amount and the amount approved as commission. The respondent never filed a petition for additional fees nor were they accounted for in any of the estate accountings. # * lie # * * On November 30, 1978, the respondent took a $5,000 fee from the estate of Ella Peigert without the approval of the Orphans’ Court for Worcester County. On October 24, 1980, the respondent took an additional $4,500 fee from Mrs. Peigert’s estate without the approval of the Orphans’ Court. The respondent filed a petition for attorney’s fee in the amount $5,000 on January 20, 1981.

That fee was approved on January 27, 1981. The respondent never filed a petition for additional fees taken nor were they accounted for in any of the estate accountings. Judge Ahalt’s findings are supported by the evidence. Additionally, the mechanics of the taking of the original “fee” of $30,000 from the estate of Joseph Peigert generates a concern about respondent’s original intent.

When the $30,000 was paid to respondent’s firm, the funds of the estate were being held in the firm’s clients’ fund account. A ledger sheet kept for that account shows that on 1 December 1976 three checks were drawn totaling $30,000, in the amounts of $8,346.92, $12,500.00, and $9,153.08. No matching vouchers were produced, and the ledger entry simply shows “POW PA Fee.” The reference to “POW PA” is to the firm of Purdue, Owrutsky & Whitehead, P.A. The estate of Joseph Peigert was not opened until 8 September 1976, and it was a relatively uncomplicated estate, consisting mainly of liquid assets easily assembled. As Judge Ahalt found, respondent had not then rendered any ³⁴³ substantial service to the estate.

In short, there was no justification for the fee, and no explanation for the breakdown of $30,000 into three checks with precise amounts. The lingering concern is whether this method of payment represented an attempt to partially conceal a large fee, or perhaps was so structured that it might later be accounted for as a payment by the estate of fees earned by the respondent for work done for the decedent prior to his death. The hearing judge made no finding concerning the reason for the structuring of the payment, and the record provides no satisfactory explanation. Respondent subsequently secured the approval of the Orphans’ Court for a payment of a net personal representative’s commission of $24,997.74 and accounted for that payment.

In neither account filed in the estate, however, does the respondent account for the additional $5,002.26 taken by him from Joseph Peigert’s estate. In his exceptions, respondent offers this explanation: The difference was paid on behalf of the trusts. There were no other estate commissions or fees. Fees were taken in connection with the trusts.

This bald assertion is wholly unsupported by the record. When the $30,000 “fee” was paid to the firm, the trusts had not been funded. The record is devoid of any evidence of the computation of or billing for a trustee’s commission or attorney’s fee for services rendered to the trusts in this amount. There were statements rendered for attorney’s fees for services rendered to the trusts, but these are all accounted for.

The accounting practices employed in the handling of the estates and trusts were, at best, woefully deficient. Estate funds were kept in the firm’s escrow account for a long period of time. Expenditures later claimed as proper payments by the trusts were made directly from estate funds, rather than by the orderly funding of the trusts from estate assets and the separate expenditure of trust monies by the trustees. Moreover, there were transfers of funds between estate, law firm, and trust accounts, which may be charac ³⁴⁴ terized generally as internal loans made to meet cash demands.

As a result, it has been difficult for Bar Counsel, the Inquiry Panel, the Review Board, and this Court to determine exactly what was being done with the substantial amounts of money involved. Respondent now wishes to turn that self-generated confusion to his advantage, suggesting that somewhere, somehow, he must have been entitled to trustee’s commissions, and that this accounts for the $5,002.26 otherwise unaccounted for in the estate. The hearing judge did not accept this argument, and neither do we. Respondent’s explanation of the fees taken in the estate of Ella Peigert is ño better.

He justifies the first $5,000 fee because a fee in that amount was later approved by the Orphans’ Court. He claims the second fee of $4,500 “represented payment for services in connection with the trust.” Again, there is no support for this contention in the record. Every bill produced by the respondent for attorney’s fees for services rendered to the trust is shown to have been paid from other sources. We accept Judge Ahalt’s findings concerning the fees taken in each estate.

There are two serious violations here. Respondent took fees of $5,002.26 from the estate of Joseph Peigert, and $4,500 from the estate of Ella Peigert, without the approval of the Orphans’ Court, and without accounting for those funds. Moreover, he took additional fees from each estate which, although later approved, had not been approved by the Orphans’ Court at the time they were taken. Respondent treats this second violation as a rather minor matter.

It is not. The funds held are those of the estate, and not those of the attorney. The attorney has no right to those funds, either as a commission or as an attorney’s fee, unless and until an approval pursuant to § 7-601 or § 7-602 of the Estates and Trusts Article, Maryland Code (1974, 1990 Cum.Supp.) has been obtained from the Orphans’ Court. ³⁴⁵ Fiduciaries in general, and attorneys in particular, must remember that the entrustment to them of the money and property of others involves a responsibility of the highest order. They must carefully administer and account for those funds.

Appropriating any part of those funds to their own use and benefit without clear authority to do so cannot be tolerated. Arguing that an unauthorized “advance” was later approved as a fee is little better than arguing that a fiduciary may dip into the client’s funds for a “loan” as long as the money is later repaid. See Attorney Griev. Comm’n v. Pattison, 292 Md. 599, 606 , 441 A.2d 328 (1982) (“loan” taken by attorney from estate funds, although later repaid with interest, constituted “an inexcusable and unjustified breach of his fiduciary obligations to the estate and a serious invasion of the integrity of the assets of the estate”).

Respondent’s exceptions to Judge Ahalt’s findings concerning fees taken from the estates are overruled. V. The hearing judge also concluded that respondent violated the disciplinary rules “in that his handling of the estate and trust funds was not prudent, the appropriate accounts were not maintained, and prudent accounting practices were not followed which cost the estates unnecessary bank charges.” He found that respondent had deposited more, than $4,440 of funds of Joseph Peigert’s estate in the Second National bank account entitled “Morton J. Owrutsky, Attorney for Joseph Peigert,” and that checks were written on trust accounts established for the individual beneficiaries when there were insufficient funds to cover them, resulting in presentment fees totaling $936 being charged against the accounts. As we have previously noted, the record also demonstrates that the accounting procedures employed by respondent were deficient in a number of respects, and the transfer of and accounting for funds between trust, estate, escrow, and other accounts was not sufficiently precise to comply with the standards of a fiduci ³⁴⁶ ary or the care required of attorneys by DR 9-102(B). Respondent’s exceptions to these findings are overruled.

VI

Judge Ahalt found that respondent was guilty of neglect “in that the estate of Ella Peigert was not opened for more than a year after her death, accountings were not timely filed and the estate was not concluded for more than seven (7) years.” Concerning the late opening of the estate, respondent replied that “there is no time requirement for opening estates.” With respect to the failure to conclude the estate within a reasonable period of time, respondent says, in very general terms, that there are often tax considerations that justify keeping an estate open for a period of years. He offers no evidence that those tax considerations were present in this case. He also points out that there was “interplay of funds between the estate and various trusts.” He does not explain why that was necessary in this case, or why that fact contributed to delay. The estate of Ella Peigert was an uncomplicated matter.

Respondent was the sole personal representative. He knew the decedent’s affairs — indeed he held $46,380 of her funds under a general power of attorney which expired upon her death. The balance of her estate subject to probate in this State consisted of a home and furnishings in Pocomoke City, Maryland, jewelry, an automobile, and modest proceeds from a life insurance policy. By the terms of her will, her entire estate went into the second trust established by her late husband.

There were a modest number of bills to be paid, and estate tax liability arising from the marital trust created in her favor by her late husband. We accept the findings of the hearing judge that the respondent was guilty of neglect in failing to promptly open the estate, as well as in his handling of the estate.

VII

Finally, Judge Ahalt found that respondent was guilty of misconduct because he made a loan to himself from the ³⁴⁷ assets of one of the trusts he administered. Judge Ahalt found the following facts: On August 17, 1981, the respondent withdrew $48,-370.82 from a passbook account at Second National entitled “Owrutsky and Drake, attorneys for Robert Peigert Trust”