ATTORNEY GRIEVANCE COM'N OF MARYLAND v. Briscoe

CATHELL, Judge. The Attorney Grievance. Commission (“Commission”), by Bar Counsel, filed in this Court a petition seeking disciplinary action against H. Jerome Briscoe, III. 1 The Petition alleged ⁵⁵⁷ multiple violations of the Maryland Rules of Professional Conduct (MRPC). Pursuant to Maryland Rule 16-709, 2 we referred the matter to the Honorable Gary I. Strausberg, of the Circuit Court for Baltimore City, for a hearing and to make findings of fact and conclusions of law.

Respondent was served in person with the Petition for Disciplinary Action that required respondent to respond within fifteen days of service and notified him that a hearing would be held no later than thirty days from the date of response. Respondent failed to file any response. Thereafter, petitioner filed a Request for Order of Default. Judge Strausberg entered an Order of Default on August 17, 1999.

There was no request to vacate the Order of Default and Judge Straus-berg proceeded with the hearing. Respondent did not appear in court on the date scheduled for the hearing of this matter. Judgment by default subsequently was entered. Judge Strausberg considered the Petition for Disciplinary Action and the transcript of the proceedings before the Inquiry Panel hearing that had taken place on two dates: December 1, 1998, and February 2, 1999.

The transcript of the first hearing reflected that respondent had appeared and testified as to the matters alleged against him. He did not, however, appear at the second hearing, although the record reflects that respondent had been told that the hearing was to reconvene on that date, and that he had been told to appear and to produce certain records. He had also been mailed notices of ⁵⁵⁸ the reconvened hearing at two different addresses, although no return receipt had been received from one of those addresses. Judge Strausberg found: When the panel reconvened on February 2, 1999 the panel reflected that notices had been sent to Mr. Briscoe at the Yosemite Avenue address with a return receipt from Mr. Briscoe concerning the hearing and a letter to another address in Salisbury, Maryland for which no return receipt had as yet been received.

The panel noted that the Respondent was to bring with him his records in each of the matters before the Inquiry Panel as well as producing original bank statements, check register, canceled checks in all checking accounts in his name used in the practice of law including regular checking, trust and escrow accounts for the period January 1, 1996 to the date of the panel hearing. The panel noted that Mr. Briscoe did not appear nor did he contact anyone concerning his inability to appear. The panel further noted that in the record was an Order of the Court of Appeals of Maryland dated April 14, 1998 prohibiting Mr. Briscoe from the further practice of law for failure to pay Clients’ Security Trust Fund assessment. The Court adopts, in connection with the complaint of Morris Gary, the allegations in the Petition for Disciplinary Action that the Respondent was retained by the mother of Morris Gary in March 1996 relative to ... post conviction proceedings.

The Respondent placed the fee in his business account and maintained no other accounts in his practice, failed to cooperate with Bar Counsel and the Commission in connection with its investigation, applied the funds he received from Morris Gary’s mother, without permission, to outstanding bills he alleged were due on behalf of another son of Mrs. Gary whom he had represented. His actions violated Maryland Rules of Professional Conduct 1.2, [ 3 ] 1.3, [ 4 ] ⁵⁵⁹ 1.4,[ 5 ] 1.15,[ 6 ] 1.16 [ 7 ] and 8.1(b)[ 8 ] and Maryland Rules 16-603 [ 9 ] and 16-604.[ 10 ] ⁵⁶⁰ The Court finds in connection with the complaint of Wayne B. Gunther, Jr. that Mr. Gunther retained Mr. Briscoe on November 24, 1997 for a criminal matter and paid the Respondent, Mr. Briscoe, $500.00. Complainant, being dissatisfied with the services of Respondent, asked for a refund of some of his fee and the Respondent promised to make the refund. Respondent thereafter advised the Complainant that he had signed a “non-refundable retainer agreement” but no such agreement has ever been produced.

During investigation by the Petitioner, the Attorney Grievance Commission, the Respondent produced no files or other documentary evidence of his representation of the Complainant and failed to cooperate with the Commission. The Court therefore finds that the Respondent violated Maryland Rules of Professional Conduct 1.2, 1.16 and Rule 8.1(b). ⁵⁶¹ Jessie Smolen complained that the Respondent, Mr. Bris-coe, represented four (4) clients who were involved in an automobile accident in November, 1996 and the cases had been settled. The Respondent had assured Ms. Smolen that all pharmacy bills due Ms. Smolen would be paid. At the Inquiry Panel hearing on December 1,1998 each of the four (4) clients testified that the Respondent did handle their claims, obtained settlement checks, had the clients sign and endorse the checks to the Respondent who then had the checks cashed.

The Respondent never deposited any funds or checks into any account nor did he pay Ms. Smolen for the pharmaceutical charges to her. Each of the clients were assured by the Respondent that their bills would be paid. The Respondent, in his testimony before the Inquiry Panel, admitted he had “goofed” by not paying the bills. Once again Respondent failed to cooperate with the Commission in its investigation.

The Court finds that the Respondent violated Maryland Rules of Professional Conduct 1.5 [ 11 ] by his failure to produce any writing concerning his contingency fees, Rule 1.15 dealing with safekeeping of property and once again 8.1(b) by his failure to cooperate with the Commission’s investigation. The fourth complaint was in the name of Bar Counsel which resulted in a call from the Honorable David B. Mitchell of this Court reflecting that the Respondent had appeared in his courtroom on September 30, 1998 alleging that he was an attorney representing a client with criminal charges pending and requested a continuance. The Respondent had been decertified by the Court of Appeals on April 14, 1998, the third time he had been decertified for ⁵⁶² non-payment since 1989. He failed to appear at a second inquiry panel hearing concerning this complaint nor did he furnish all records at that panel hearing which he was requested to do.

The Court finds that the Respondent violated Maryland Rules of Professional Conduct 5.5 [ 12 ] dealing with the unauthorized practice of law. The Court makes each of its findings by clear and convincing evidence. No exceptions to Judge Strausberg’s findings have been filed. Accordingly, Judge Strausberg’s factual findings are accepted.

Upon our perusal of Judge Strausberg’s findings in reference to the individual complaints, however, we find that certain of his conclusions of law are not supported by those findings. As to the conclusions of law of a judge, to whom we have assigned hearing duties in an attorney grievance case, our consideration is essentially de novo, even where default orders and judgments have been entered at the hearing level. See, e.g., Attorney Grievance Comm’n v. Shaw, 354 Md. 636, 646 , 732 A.2d 876, 881 (1999) (“This Court has original and complete jurisdiction over attorney disciplinary proceedings. Accordingly, the ultimate decision as to whether a lawyer has violated the [MRPC] rests with this Court.” (citations omitted)).

Complaint of Morris Gary Upon our consideration of the facts as found by the hearing judge we cannot conclude as a matter of law that, in respect to the complaint of Morris Gary, respondent violated MRPC 1.2, 1.3, 1.4, or 1.16, i.e., they do not indicate how respondent violated the scope of his representation, failed to ⁵⁶³ perform with diligence or communicate with his clients, or that his representation had ever been terminated. The findings of fact do not indicate occurrences involving respondent that implicate any of the provisions of MRPC 1.2, 1.3, 1.4, or 1.16. Judge Strausberg found that respondent received funds from the mother of Morris Gary who had retained him to perform certain services for Morris Gary. Respondent deposited the funds in his business account and then applied the funds, without the mother’s permission, to an outstanding account allegedly owed to him by a brother of Morris Gary.

At the time, respondent maintained no other accounts, including trust accounts. Additionally, Judge Strausberg found that respondent had failed to cooperate with Bar Counsel and petitioner in its investigation of his alleged violations. We conclude from these undisputed factual findings of Judge Strausberg, that respondent has violated the provisions of MRPC 1.15 and Maryland Rules 16-603 and 16-604, in that he maintained no separate accounts for the deposit of money advanced on behalf of his clients for future representation of those clients, and no trust accounts. See Attorney Grievance Comm’n v. Adams, 349 Md. 86, 94-97 , 706 A.2d 1080, 1084-85 (1998) (holding that attorney’s act of writing check to repay client’s delinquent taxes from office account, and depositing client’s “reimbursement” check into that account, violated Rule 16-604 and MRPC 1.15); Attorney Grievance Comm’n v. Awuah, 346 Md. 420 , 697 A.2d 446 (1997) (sanctioning attorney, in part, for violating the requirement of Rule 16-603 (then Rule BV3) that he maintain a separate client trust account); Attorney Grievance Comm’n v. Glenn, 341 Md. 448, 472 , 671 A.2d 463, 475 (1996) (“Rule 1.15(a) requires an attorney to keep clients’ funds in a separate account and ‘to ensure that client funds are used only on the client’s behalf and not for the lawyer’s personal or business purposes.’ Failure to maintain integrity of client funds violates the requirements of [MRPC] 1.15.” (quoting Model Rules of Professional Conduct 1.15 cmt.)); see also Attorney Grievance Comm’n v. Kemp, 303 Md. 664, 678-79 , 496 A.2d 672, 679 (1985); Attorney Grievance Comm’n v. Velasquez, 301 Md. 450, 454-55, 458 , 483 A.2d 354, 356-57, 358 (1984); Attorney Grievance ⁵⁶⁴ Comm’n v. Boehm, 293 Md. 476, 478-81 , 446 A.2d 52, 53-54 (1982).

Additionally, we conclude that Judge Strausberg’s findings that respondent had failed to cooperate with petitioner and Bar Counsel supports the conclusion that respondent violated MRPC 8.1(b), which provides that an attorney must not “fail to respond to a lawful demand for information from [a] ... disciplinary authority....” See Attorney Grievance Comm’n v. Brown, 353 Md. 271, 286-87, 290, 294 , 725 A.2d 1069, 1076, 1078, 1080 (1999) (holding that repeated failures to answer Bar Counsel’s requests for information violated MRPC 8.1(b)). We conclude that, as to the Morris Gary complaint, the findings of fact do not support that respondent has violated MRPC 1.2, 1.3, 1.4, or 1.16, but they do establish that he has violated MRPC 1.15 and 8.1(b), and Maryland Rules 16-603 and 16-604. Complaint of Wayne B. Gunther In respect to the complaint involving Wayne B. Gunther, we conclude that there is nothing in the hearing judge’s findings of fact that would support a conclusion that respondent violated MRPC 1.2. Mr. Gunther’s “dissatisfaction” with respondent’s representation alone does not establish a violation of MRPC 1.2.

The hearing judge’s findings in respect to this complaint provide simply that Mr. Gunther retained Mr. Briscoe on November 24, 1997 for a criminal matter and paid the Respondent, ... $500.00. Complainant, being dissatisfied ..., asked for a refund of some of his fee and the Respondent promised to make the refund. Respondent thereafter advised the Complainant that he had signed a “non-refundable retainer agreement” but no such agreement has ever been produced.... [T]he Respondent ... failed to cooperate with the Commission. We conclude that respondent violated the provisions of Maryland Rules 16-603 and 16-604.

Additionally, he has violated MRPC 1.16(d), by not promptly returning Mr. Gunther’s retainer fee upon request, 13 and MRPC 8.1(b), in that ⁵⁶⁵ the hearing judge found that he failed to cooperate with the petitioner in an attorney disciplinary matter. Complaint of Jessie Smolen The complaint of Jessie Smolen alleged the failure to pay pharmacy bills owed by four of respondent’s clients that were supposed to be paid by respondent from the proceeds of the four clients’ settlements. Judge Strausberg found that all four of the clients had endorsed their settlement checks over to respondent. The hearing judge found that respondent had never deposited any of the settlement checks or funds into any account nor did he pay the bills to Ms. Smolen, as he had promised.

Judge Strausberg found that respondent had admitted before the Inquiry Panel that he had “ ‘goofed’ by not paying the bills.” The hearing judge also found that respondent had failed to produce any writing relating to his contingency fee arrangements in respect to the four cases involved in the Smolen matter. The circuit court again found that respondent failed to cooperate with petitioner’s investigation. We conclude as a matter of law that respondent violated MRPC 1.5(c) in respect to the finding below that respondent did not describe his contingency fees in writing, MRPC 1.15, in regard to mishandling the settlement checks, and MRPC 8.1(b), in respect to his failure to cooperate with petitioner. Complaint of Judge David B. Mitchell The hearing judge found that a fourth complaint had been filed by Bar Counsel as a result of a communication from Judge David B. Mitchell informing Bar