Attorney Grievance Comm'n of Md. v. Moody

Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ. Opinion by Hotten, J. *⁹¹ Respondent, Maurice Marnea Moody, gained admission to the Bar of Maryland on June 5, 1996. On June 22, 2016, the Attorney Grievance Commission ("the Commission" or "Petitioner"), through Bar ⁸¹² Counsel, filed in this Court a Petition for Disciplinary or Remedial Action ("Petition") against Respondent. Bar Counsel charged Respondent with violating the Maryland Lawyers' Rules of Professional Conduct ("MLRPC") and the Maryland Rules governing attorney trust *⁹² accounts.

Specifically, Bar Counsel alleged that Respondent violated the following provisions: MLRPC: 1.15 (Safekeeping Property), 8.1 (Bar Admission and Disciplinary Matters), 8.4 (Professional Misconduct), Maryland Rules 16-606.1 (Attorney Account Record-Keeping), 16-607 (Commingling Funds), and 16-609 (Prohibited Transactions). 1 This Court transferred the case to the Circuit Court for Baltimore County on September 29, 2016, for fact-finding proceedings. On October 5, 2016, Petitioner was unable to serve the summons on Respondent prior to its expiration. The clerk reissued the summons and the Client Protection Fund ("CPF") served the summons on Respondent on December 13, 2016. At that time, the CPF provided Respondent with the Petition, transmittal order, and summons at three different addresses.

Respondent's Answer to the Petition were due on January 3, 2017. On January 6, 2017, the circuit court entered a Default Judgment against the Respondent, because he failed to file a timely answer. On that same day, the court scheduled a hearing for February 9, 2017, and the Respondent failed to appear. Subsequently, on February 23, 2017, Respondent filed a Motion to Vacate the Default Judgment, which Petitioner opposed.

The circuit court ultimately denied the Respondent's Motion on February 28, 2017. The hearing judge rescheduled the matter for March 1, 2017. On that day, Respondent failed to attend also failing to respond to Petitioner's discovery requests. Therefore, Pursuant to Maryland Rule 2-424, the hearing judge admitted into evidence Petitioner's Request for Admissions of Fact and Genuineness of Documents along with other documents obtained throughout the investigation.

Thereafter, the hearing *⁹³ judge issued written findings of fact and proposed conclusions of law, concluding that Respondent had in fact violated MLRPC 1.15, 8.1, 8.4(d), and Maryland Rules 16-606.1, 16-607, and 16-609. Respondent filed no exceptions and there was no recommendation regarding the appropriate sanction. Petitioner recommended disbarment. Following oral argument, this Court issued a per curiam order disbarring Respondent.

This opinion details the rationale for our decision. I. A. The Hearing Judge's Findings of Fact On June 5, 1996, Respondent gained admission to the Maryland Bar. On June 29, 2004, this Court ordered, by consent, that Respondent receive a 90-day suspension for violations of the then-named MLRPC 1.1, 1.3, 1.4, 1.16(d), 8.1(b), and 8.4(d). The facts presented demonstrated that Respondent failed to attend a hearing during a child support case, failed to file a post-conviction petition, failed to obtain service of process in a divorce case, and failed to timely file a claim for uninsured motorist benefits.

On January 11, 2005, Respondent ⁸¹³ was reinstated after serving the suspension. In December 2014, Respondent received a Commission reprimand due to his failure to maintain adequate records regarding his attorney trust account, resulting in an overdraft from that account. Respondent also commingled client and third-party funds, resulting in a violation of MLRPC 1.15(a). Specifically, the reprimand stemmed from Respondent's failure to withdraw earned fees promptly from his attorney trust account.

Consequently, Respondent was required to meet with a Commission Investigator, and review the accounting rules and a DVD explaining Escrow Management. Regarding the instant Petition, the Commission received a notice from M & T Bank on January 20, 2015, referring to a January 14, 2015 overdraft of Respondent's trust account. The notice revealed that Check No. 1033 in the amount of $104.00 was presented for payment, but the account did not contain sufficient funds to cover the check, which resulted in an *⁹⁴ overdraft in the amount of $26.79. Thereafter on January 27, 2015, Bar Counsel sent letters to Respondent, both by regular and certified mail, seeking an explanation for the overdraft, requesting that Respondent produce copies of his trust account records from November 2014 until January 2015.

Respondent replied to Bar Counsel's letter on or about February 5, 2017, but failed to produce the records. On April 22, 2015, Bar Counsel sent a letter to Respondent, again requesting copies of his trust account bank records. On May 6, 2015, Bar Counsel received a copy of Respondent's ledger titled "Check Register for Attorney Trust Account" ("Check Register"). Additionally, Bar Counsel received copies of Respondent's client ledgers, checks, deposit slips, and bank statements for the period between November 2014 and January 2015.

Bar Counsel sought an admission of fact from Respondent that he had prepared and reviewed his check register for accuracy. Respondent did not respond to Bar Counsel's request, thereby admitting that he prepared and reviewed his check register for accuracy. See Md. Rule 2-424(b). Bar Counsel noted several discrepancies reflecting attorney misconduct.

Specifically, Respondent's Check Register provided that Check No. 0055, in the amount of $7,850.60, was made payable to USAA for his client B. Jackson for medical services. However, a copy of Check No. 0055 revealed that the check was made payable to the Respondent. Respondent's Check Register also indicated that Check No. 1024, in the amount of $1,050.00, was made payable to Will Mcines for his client, S. Jones, for medical services. Further, the Client Ledger Card for S. Jones listed Will Mcines, MD, as a medical provider in relation to her personal injury matter.

In addition, the Client Ledger Card for M. Jones also indicated that Respondent issued a check payable to Will Mcines, MD for $1,050.00. Further investigation revealed that Will Mcines was not a physician, medical professional, or medical provider, but instead, was Respondent's landlord from whom Respondent rented office space. As a result, Bar Counsel concluded that the Check Register and Client Card entries were fraudulent. *⁹⁵ Respondent's Check Register provided that both Check No. 1027, in the amount of $750.00, and Check No. 1041, in the amount of $300.00, were made payable to Respondent, for his client, L. Jones, for fees. However, further investigation revealed that this entry was fraudulent and that Respondent's Client Ledger Card for L. Jones showed that the fee was in fact $1,650.00, not the $1,050.00 that Respondent paid from his trust account.

Further, ⁸¹⁴ with regard to S. Jones, Respondent's Check Register provided that Check No. 1029, in the amount of $500.00, Check No. 1039, in the amount of $1,000.00, and Check No. 1040, in the amount of $600.00, were made payable to Respondent for fees totaling $2,100.00. However, the Client Ledger Card for S. Jones indicated that Respondent received $2,164.00 for fees. Moreover, Respondent's Disbursement Sheet for S. Jones listed the fee as $2,000.00, an amount contradicting the other records. These irregularities reflected a pattern of improper record keeping that resulted in erroneous fee payments.

Through its investigation, Bar Counsel also identified additional discrepancies in Respondent's accounting for L. Jones. Specifically, the Check Register listed that Respondent issued Check No. 1030, in the amount of $459.00, on behalf of L. Jones to Maryland Healthcare Clinics ("MHC") for medical services. However, the Client Ledger Card indicated that Respondent paid $984.00 to MHC for L. Jones' fees. A copy of the check showed conclusively that MHC was in fact only paid $459.00 on behalf of L. Jones for medical services.

Next, the Check Register indicated that Respondent issued Check No. 1038, in the amount of $688.00 to L. Jones for the settlement of the Jones matter. A copy of Check No. 1038 matched the Check Register but the Client Ledger Card for L. Jones indicated that the amount of settlement disbursed to L. Jones was actually $2,688.00. In addition to the above discrepancies, the hearing judge also found violations with regard to the representation of M. Brice. Respondent's Check Register reflected that Check No. 1043, dated December 20, 2014 in the amount of $500.00, and Check No. 0055, dated January 7, 2015 in the amount of *⁹⁶ $600.00, were both made payable to Respondent for fees totaling $1,100.

The Respondent's Client Ledger Card, however, reflected that, as of April 22, 2015, Respondent's fee for representing M. Brice was $1,022.00 and that as of July 14, 2015, the fee was $2,072.00. The Client Ledger Card also reflected that $1,050.00 was paid to Mr. Mcines, the Respondent's landlord and was not on behalf of M. Brice. The Check Register also reflected that on December 25, 2014, Respondent wrote Check No. 055, for $500.00, on behalf of M. Brice to MHC for medical services. An actual copy of Check No. 055, dated December 24, 2014, showed that it was in fact made payable to Respondent for $500.00.

Notably, the Client Ledger Cards for M. Brice reflected that as of July 14, 2015, Mr. Brice had an outstanding bill of $1,828.00, owed to MHC. The Disbursement Sheet for M. Brice reflected, however, that Mr. Brice's bill from MHC was only $1,728.00. The hearing judge found a final instance of subpar accounting practices in the case of Respondent's representation of B. Jones. The Check Register indicated that Respondent wrote Check No. 1042 for $1,000.00 on January 26, 2015 to himself for fees.

The Client Ledger Card for B. Jones reflected however, that Respondent was due $2,212.00 for representation of B. Jones. On July 1, 2015, Bar Counsel sent a letter to Respondent requesting an explanation regarding the payments to Will Mcines, MD on behalf of S. Jones and M. Brice. On July 16, 2015, Bar Counsel received a letter from Respondent, dated July 14, 2015 that included a copy of a revised Check Register for Respondent's Trust Account ("Second Check Register") and a revised Client Ledger Card for M. Brice. Bar Counsel again requested that Respondent admit that he prepared the Second Check Register and the revised Client Ledger Card for Mr. Brice.

Respondent ⁸¹⁵ again failed to respond to the requests, thereby admitting them. The hearing judge subsequently concluded that Respondent's Second Check Register contained false or incorrect information, in comparison to copies of actual checks and bank statements received from Respondent's attorney trust account. See Md. Rule 2-424(b). *⁹⁷ In the Second Check Register, Respondent represented that he issued Check No. 0055 dated December 24, 2014 for $500.00 to medical provider MHC on behalf of M. Brice. A copy of the check revealed that it was made payable to Respondent.

The Second Check Register also represented that Respondent wrote a check on December 7, 2014, to USAA on behalf of B. Jackson for $1,050.00. The bank records contained a copy of a check, which showed that Respondent issued the check again to Will Mcines. The hearing judge also stated that Respondent's Client Ledger Card for B. Jackson revealed that Respondent claimed a fee of $10,000.00, but Respondent's Disbursement Sheet, claimed that his fee in the matter was $12,870.00. On or about July 31, 2015, Bar Counsel issued subpoenas to M & T Bank and Respondent, seeking complete records of Respondent's attorney trust account for the period between January 2013 and July 31, 2015.

Bar Counsel analyzed the records, which revealed discrepancies and misrepresentations by Respondent concerning the amounts of various checks and the identities of various payees in both Check Registers and Client Ledgers. As a result, on July 22, 2015, Bar Counsel directed Respondent to provide his complete files for B. Jackson, M. Brice, S. Jones, B. Jones, and L. Jones. Respondent complied on August 15, 2015. The August 15, 2015, Client Ledger Cards and Settlement Statements for the above referenced clients contained different information regarding payees and check amounts when compared against Respondent's May 6, 2015 disclosure.

Entries on the Client Ledger Cards and Settlement Statements were also inconsistent with the attorney trust account records received from M & T Bank. For example, S. Jones received a settlement check from GEICO Insurance Co. in the amount of $6,500.00, but the Client Ledger Card and Settlement Statement provided by Respondent reflected the following disbursements: (1) $2,000.00 to Respondent; (2) $1,362.00 to MHC; and (3) $3,138.00 to S. Jones. However, the bank records from Respondent's trust account reflected the following: (1) Check No. 1031 to S. Jones for $3,138.00; (2) Check *⁹⁸ No. 1026 to Will Mcines for $1,050.00; (3) Check No. 1039 to Respondent for $1,000.00; and (4) Check No. 1040 to Respondent for $600.00, totaling $5,788.00. The bank records did not reflect any payment to either MHC for $1,362.00 on behalf of S. Jones.

On January 8, 2016, Bar Counsel received a fax from Respondent dated January 1, 2006. The hearing judge noted that the 2006 date listed was likely an error. Nonetheless, the fax consisted of a cover sheet with a handwritten note from Respondent and a three-page document titled "Check Register for Attorney Trust Account" ("Third Check Register"). Bar Counsel again sought an admission from Respondent that he had prepared and reviewed the Third Check Register for accuracy, but Respondent again failed to respond.

As such, the hearing judge treated those facts as conclusively admitted. See Md. Rule 2-424(b). In the Third Check Register, Respondent indicated that he wrote Check No. 55, dated November 19, 2014, for $7,850.60, on behalf of B. Jackson to Medical Providers for services provided to B. Jackson. The actual copy of Check No. 55, dated November 19, 2014 was in ⁸¹⁶ fact made payable to Respondent, for a total amount of $7,850.60.

The Client Ledger Card for B. Jackson reflected that Respondent's fee for representation was $10,000.00 and that the client had outstanding medical bills for $7,503.60. The Disbursement Sheet for B. Jackson reflected, however, that the fee for representation was $12,870.00. The Disbursement Sheet also reflected that B. Jackson's medical expenses totaled $8,464.00. The Third Check Register further showed that on December 7, 2014, Respondent wrote a check with an unknown number.

The check purported to be on behalf of "B. Jack/Jones to M. Moody for fees ($500.00)/ S. Jones ($550.00) to (W.E.) $1,050.00." Respondent's bank records however do not reflect a check dated December 7, 2014 paid to Respondent. The Third Check Register also contained an inaccurate entry concerning Check No. 55. B. The Hearing Judge's Conclusions of Law Based on the above findings of fact, the hearing judge found, by clear and convincing evidence, that Respondent *⁹⁹ violated the following provisions of MLRPC: 1.15 (Safekeeping Property), 8.1 (Bar Admission and Disciplinary Matters), 8.4 (Professional Misconduct). The hearing judge also determined that Respondent violated Maryland Rules 16-606.1 (Attorney Account Record-Keeping), 16-607 (Commingling Funds), and 16-609 (Prohibited Transactions).

MLRPC 1.15: Safekeeping Property MLRPC 1.15(a) provides that: 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.

The hearing judge noted that in Attorney Grievance Commission of Maryland v. Hamilton , we explained that MLRPC l. l 5(a) requires an attorney to keep the property of clients separate from the lawyer's own property. 444 Md. 163 , 188, 118 A.3d 958 , at 972 (2015). Additionally, in Attorney Grievance Commission of Maryland v. Zuckerman , we found that the respondent violated MLRPC 1.15(a) when he failed to keep client funds in a separate account and concluded that even an unintended violation of MLRPC 1.15 constitutes a violation of the attorney's duties under the rule. 386 Md. 341 , 359, 872 A.2d 693 , at 704 (2005). The hearing judge concluded that Respondent violated MLRPC 1.15(a) by continuously failing to maintain an accurate accounting of client funds. The hearing judge also determined that Respondent's actions illustrated a pattern of negligent and deceitful accounting practices, laden with gross *¹⁰⁰ inconsistencies between Respondent's Check Register and copies of checks, client ledgers, and bank records.

The hearing judge also noted that, on multiple occasions, Respondent indicated in his Check Register that a check was payable to a medical provider or third party when, in fact, the check was payable to himself. The hearing judge further observed that there were several instances where the fee ⁸¹⁷ that was indicated in the Client's Ledger Card or Disbursement Sheet differed from what Respondent actually disbursed to himself. MLRPC 8.1: Bar Admission and Disciplinary Matters MLRPC 8.1 provides that: 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. The hearing judge concluded that throughout Bar Counsel's investigation, Respondent provided three separate check registers, each containing contradictory information.

The hearing judge also noted that Respondent's repeated failure to respond to discovery permitted the court to conclude that Respondent had reviewed each of the check registers for accuracy. Respondent did not offer any mitigating evidence regarding why he supplied Bar Counsel with erroneous and conflicting check registers and failed to appear for any proceeding regarding this matter. Accordingly, the hearing judge concluded that Respondent violated Rule 8.1(a) by knowingly making a false statement to Bar Counsel in connection with a disciplinary matter. It is important to note at this point that *¹⁰¹ the hearing judge acknowledged that Bar Counsel voluntarily withdrew a charge against Respondent for violating Rule 8.1(b).

MLRPC 8.4: Professional Misconduct MLRPC 8.4 states: It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Maryland Lawyers' Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; The hearing judge stated that any violation of the MLRPC constituted a violation of MLRPC 8.4(a). See generally Attorney Grievance Commission v. Landeo , 446 Md. 294 , 132 A.3d 196 , (2016). The hearing judge concluded that because it found that Respondent has violated MLRPC 1.15(a) and MLRPC 8.4(c)-(d), Respondent violated 8.4 (a). The hearing judge acknowledged that Bar Counsel voluntarily withdrew a charge that Respondent violated 8.4(b).

The hearing judge further concluded that Respondent violated subsection (c) by submitting false client ledgers and settlement sheets to Bar Counsel, which the hearing judge determined was conduct involving dishonesty, fraud, deceit, or misrepresentation. The hearing judge also found that Respondent wrote a check to his landlord, presumably for a rental payment, and