ATTORNEY GRIEVANCE COMMISSIOIN v. Seiden

CATHELL, Judge. On April 16, 2002, the Attorney Grievance Commission of Maryland, petitioner, by Melvin Hirshman, Bar Counsel, and Gail D. Kessler, Assistant Bar Counsel, filed a petition 1 for disciplinary action against Richard Seiden, respondent, for multiple violations of the Maryland Rules of Professional Conduct (MRPC). The petition alleged that respondent, based upon his representation of Penelope L. Mentlik, had violated MRPC 1.1,1.15(b) and 8.4(a) and (d). 2 On April 17, 2002, pursuant to Maryland Rule 16-709 et seq., this Court transmitted the matter to Judge Thomas J. Bolling ⁴¹² er, Sr. of the Circuit Court of Baltimore County to conduct a hearing and to make findings of fact and conclusions of law. 3 On June 13, 2002, an evidentiary hearing was held before the hearing judge. On November 14, 2002, Judge Bollinger issued his Memorandum Opinion and found by clear and convincing evidence that respondent violated MRPC 1.1, 1.15(b) and 8.4.

The record was transferred from the hearing judge to our Court for oral argument. Pursuant to Maryland Rule 16-711(b)(2), 4 respondent filed with this Court exceptions to the hearing judge’s Findings of Fact and Conclusions of Law. I. Facts Respondent was admitted to the Bar of Maryland on November 16, 1978 and maintains his practice of law in his office ⁴¹³ located in Baltimore County. The Petition for Disciplinary Action in this case was based upon the complaint of Penelope L. Mentlik, BC Docket No. 2001-234-3-9.

Her complaint was initially made by a letter dated December 27, 2000. Judge Bollinger’s Findings of Fact and Conclusions of Law are, in part, as follows: “FINDINGS OF FACT “The Court finds by clear and convincing evidence that.... The complainant, Penelope L. Mentlik, was [the] Personal Representative of the Dorothy P. Dunkel estate. In August of 1998, Ms. Mentlik retained the services of the Respondent to represent the estate.

During this representation the Respondent attended the settlement of real estate property which was part of the estate of Dorothy P. Dunkel. At the settlement, a check was tendered and made payable to ‘Penelope L. Mentlik, Personal Representative of the Estate of Dorothy P. Dunkel.’ The check was in the amount of $32,422.58. The Respondent deposited this check into his escrow account and signed Ms. Mentlik’s name. This Court can not find by clear and convincing evidence that the Respondent signed Ms. Mentlik’s name, endorsing the check, without her authority.

I also find that the Respondent wrote a check from his own escrow account in the amount of $28,022.58 payable to ‘Penelope L. Mentlik, Personal Representative of the Estate of Dorothy Dunkel.’ He deducted a legal fee of $4400 from the estate funds without submitting a Fee Petition to the Orphans Court and without the Complainant’s written consent to the fee. At the hearing on this matter the Respondent had not maintained the $4400 in his escrow account and still had not submitted a Fee Petition to the Orphans Court for approval to take that fee. “The Court finds, in mitigation, by a preponderance of the evidence, that the Respondent had a difficult client in the person of Ms. Mentlik and there was a dispute between them regarding almost every aspect of the legal representation. The Court further finds that the Respondent suffered ⁴¹⁴ ill health during the representation; however, the Court does not find these mitigating factors to excuse the taking of a fee without approval of the Orphans Court. CONCLUSIONS OF LAW “The Court, upon review of the various exhibits, deposition testimony and testimony at the hearing, finds by clear and convincing evidence that the Respondent has indeed violated Rule 1.1 Competence; Rule 1.15(b) Safekeeping Property and Rule 8.4 Misconduct. “Mr. Seiden had no lawful claim to the funds he took from Ms. Dunkel’s estate and his taking of those funds for his personal use was theft and a criminal act reflecting adversely on his honesty, trustworthiness and fitness as an attorney.

His taking of those funds was dishonest.” [Emphasis added.] II. Discussion A. Standard of Review In Attorney Grievance Commission v. Harris, 371 Md. 510, 539-40 , 810 A.2d 457, 474-75 (2002), we recently stated: “It is well established that ‘[t]his Court has original jurisdiction over attorney disciplinary proceedings/ Attorney Grievance Comm’n v. Dunietz, 368 Md. 419, 427 , 795 A.2d 706, 710-11 (2002) (citing Attorney Grievance Comm’n v. Snyder, 368 Md. 242, 253 , 793 A.2d 515, 521 (2002)); Attorney Grievance Comm’n v. Harris, 366 Md. 376, 388 , 784 A.2d 516, 523 (2001); Attorney Grievance Comm’n v. Gavin, 350 Md. 176, 189 , 711 A.2d 193, 200 (1998); Attorney Grievance Comm’n v. Adams, 349 Md. 86, 93 , 706 A.2d 1080, 1083 (1998); Attorney Grievance Comm’n v. Glenn, 341 Md. 448, 470 , 671 A.2d 463, 473 (1996); Attorney Grievance Comm’n v. Kent, 337 Md. 361, 371 , 653 A.2d 909, 914 (1995); Attorney Grievance Comm’n v. Powell, 328 Md. 276, 287 , 614 A.2d 102, 108 (1992). See also Md. Rule 16-709(b) (stating that ‘[c]harges against an attorney shall be filed on behalf of the [Attorney Grievance] Commission in ⁴¹⁵ the Court of Appeals’). 5 Furthermore, ‘[a]s the Court of original and complete jurisdiction for attorney disciplinary proceedings in Maryland, we conduct an independent review of the record.’ Attorney Grievance Comm’n v. Garfield, 369 Md. 85, 97 , 797 A.2d 757, 763 (2002) (quoting Snyder, 368 Md. at 253 , 793 A.2d at 521 (citing Attorney Grievance Comm’n v. Garland, 345 Md. 383, 392 , 692 A.2d 465, 469 (1997))). “In our review of the record, ‘[t.]he hearing judge’s findings of fact will be accepted unless we determine that they are clearly erroneous.’ Garfield, 369 Md. at 97 , 797 A.2d at 763 (quoting Snyder, 368 Md. at 253 , 793 A.2d at 521 (citations omitted)). See also Dunietz, 368 Md. at 427-28 , 795 A.2d at 711 (‘The hearing judge’s findings of fact “are prima facie correct and will not be disturbed unless clearly erroneous.” ’) (quoting Attorney Grievance Comm’n v. Zdravkovich, 362 Md. 1, 21 , 762 A.2d 950, 960-61 (2000)); Attorney Grievance Comm’n v. Monfried, 368 Md. 373, 388 , 794 A.2d 92, 100 (2002) (‘Factual findings of the hearing judge will not be disturbed if they are based on clear and convincing evidence.’).

We recently reiterated the definition of clear and convincing evidence in Harris, 366 Md. at 389 , 784 A.2d at 523 (quoting Attorney Grievance Comm’n v. Mooney, 359 Md. 56, 79 , 753 A.2d 17, 29 (2000)), when we said: ‘ “The requirement of ‘clear and convincing’ or ‘satisfactory’ evidence does not call for ‘unanswerable’ or ‘conclusive’ evidence. The quality of proof, to be clear and convincing, has also been said to be somewhere between the rule in ordinary civil cases and the requirement of criminal procedure — that is, it must be more than a mere preponderance but not beyond a reasonable doubt. It has also been said that the term ‘clear and convincing’ evidence means that the witnesses to a fact must be found to be credible, and that the facts to which they have testified are distinctly remembered and the details hereof ⁴¹⁶ narrated exactly and in due order, so as to enable the trier of the facts to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue. Whether evidence is clear and convincing requires weighing, comparing, testing, and judging its worth when considered in connection with all the facts and circumstances in evidence.” [Emphasis added.] 359 Md. at 79 , 753 A.2d at 29 (quoting Berkey v. Delia, 287 Md. 302, 320 , 413 A.2d 170,178 (1980) (citing Whittington v. State, 8 Md.App. 676 , 679 n. 3, 262 A.2d 75 , 77 n. 3 (1970))).’ We recently explained in Dunietz that ‘[a]s to the hearing judge’s conclusions of law, “our consideration is essentially de novo.” ’ Dunietz, 368 Md. at 428 , 795 A.2d at 711 (quoting Attorney Grievance Comm’n v. Thompson, 367 Md. 315, 322 , 786 A.2d 763, 768 (2001) (quoting Attorney Grievance Comm’n v. Briscoe, 357 Md. 554, 562 , 745 A.2d 1037, 1041 (2000))).” As indicated supra, respondent has filed exceptions to the hearing judge’s findings of fact and conclusions of law.

After a review of the record, we affirm the hearing judge’s findings of fact and hold that they are not clearly erroneous and are based on clear and convincing evidence. See Garfield, 369 Md. at 97 , 797 A.2d at 763-64 ; Dunietz, 368 Md. at 427-28 , 795 A.2d at 711 ; Monfried, 368 Md. at 388 , 794 A.2d at 100 . We adopt, however, only those portions of the hearing judge’s conclusions of law that find the respondent in violation of MRPC 1.1, 1.15(b), 8.4(a) and 8.4(d). We shall sustain respondent’s exception as to the hearing judge’s conclusion that respondent’s actions constituted theft and a criminal act.

Petitioner filed no exceptions in this Court. B. Respondent’s Exceptions Respondent makes two specific exceptions to the hearing judge’s conclusions of law. Respondent’s exceptions, however, for all intents and purposes, can be merged into a single general exception to the last paragraph of the hearing judge’s conclusions of law, discussed infra. Respondent’s exceptions encompass the fact that the hearing judge found a ⁴¹⁷ general violation of the entire MRPC 8.4 when respondent was only charged with violations of MRPC 8.4(a) and (d).

These exceptions, however, do not encompass an exception to the hearing judge’s conclusions that respondent violated MRPC 1.1, 1.15(b), 8.4(a) and 8.4(d). In fact, respondent, in his Exceptions and Response to Recommendation for Sanctions, specifically admits his violations of these rules when he stated: “The Petition [for Disciplinary Action] charged Respondent with violations of the following provisions of the Rules of Professional Conduct: Rule 1.1 Competence, Rule 1.15(b) Safekeeping Property, and 8.4(a) and (d), misconduct. Respondent does not take exception to the conclusion of law that he violated these charged provisions because his admitted conduct would suffice to find violations of these provisions, notwithstanding Ms. Mentlik’s permission. However, insofar as Judge Bollinger’s Conclusion of Law encompassed all of Rule 8.4, including (b) and (c), provisions with which he was never charged, the Respondent takes exception.

In addition to Petitioner’s failure to charge these offenses, the same absence of a factual finding of intent, articulated fully above, would preclude Judge Bollinger’s conclusion of law that Petitioner violated 8.4(b) and (c).” [Alteration added.] Specifically, respondent excepts to the following language of the hearing judge’s conclusions of law, especially the emphasized portion therein, which states: “Mr. Seiden had no lawful claim to the funds he took from Ms. Dunkel’s estate and his taking of those funds for his personal use was theft and a criminal act reflecting adversely on his honesty, trustworthiness and fitness as an attorney. His taking of those funds was dishonest.” [Emphasis added.] Respondent’s exception has merit in that the hearing judge’s conclusions, if the alleged violations had been charged, would mirror the exact language, as illustrated by the emphasis, of MRPC 8.4(b) and (c), which states: “Rule 8.4. Misconduct. ⁴¹⁸ It is professional misconduct for a lawyer to: (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; ...” [Emphasis added.] However, respondent was not charged with such violations. Under In re Ruffalo, 390 U.S. 544 , 88 S.Ct. 1222 , 20 L.Ed.2d 117 (1968), the United States Supreme Court held that an attorney was denied due process when the disciplinary charges against him were amended on the basis of his own testimony in his disciplinary proceeding.

This Court has cited Ruffalo for the proposition that “due process considerations dictate that attorneys are entitled to notice of the charges against them when disciplinary proceedings begin.” Attorney Grievance Comm’n v. Goldsborough, 330 Md. 342, 352 , 624 A.2d 503, 508 (1993); see also Maryland Rule 16-709. In this State, this notice requirement is met by the filing of a Petition for Disciplinary Action in this Court. See Attorney Grievance Comm’n v. Parsons, 310 Md. 132, 140 , 527 A.2d 325, 329 (1987). In Attorney Grievance Commission v. Monfried, 368 Md. 373 , 378-79 n. 7, 794 A.2d 92 , 95 n. 7 (2002), this Court recognized the appropriateness of a hearing judge’s actions in limiting her Findings of Fact and Conclusions of Law to the charges filed by Bar Counsel although she did “ ‘not necessarily agree that the Commission ha[d] charged all of the Rules of Professional Conduct violated by the’ ” lawyer in that case, (alteration added).

Similarly in Attorney Grievance Commission v. Wright, 306 Md. 93, 106 , 507 A.2d 618, 624 (1986), this Court dismissed a petition against an attorney where the facts indicated a violation of prior Disciplinary Rule (DR) 9-102(B)(4), but where the lawyer was only charged with a violation of DR 2-106(A). We dismissed the petition, citing Ruffalo , because the petition did not charge the attorney for the violation that attorney’s conduct actually violated, i.e., it ⁴¹⁹ merely alleged a violation of DR 2-106(A), charging an excessive fee, and not for a violation of DR 9 — 102(B)(4). Regardless of whether respondent’s conduct constituted theft or dishonesty, the Petition for Disciplinary Action in this case does not allege violations of MRPC 8.4(b) and (c). It does not charge respondent with theft or dishonesty.

It instead charges violations of MRPC 1.1 Competence, 1.15(b) Safekeeping Property and 8.4(a) and (d) Misconduct. For the hearing judge to conclude that respondent’s conduct constituted theft and dishonesty, using the exact language of two rules he was not charged with violating, was improper. Respondent’s exception, however, is additionally supported by the facts, which indicate that respondent’s conduct did not reach the level of dishonesty included in the hearing judge’s conclusions of law. The hearing judge specifically did not find that respondent “signed Ms. Mentlik’s name, endorsing the check, without her authority.” Stated in the alternative, in the hearing judge’s opinion the evidence equally supports the finding that respondent deposited the check into his escrow account at his client’s direction.

Thus, what could be established was that respondent took his fee, which Ms. Mentlik did not even contest as unreasonable, from an escrow account without following the correct procedures mandated in this State. This Court, in Attorney Grievance Commission v. Stancil, 296 Md. 325, 333 , 463 A.2d 789, 792 (1983), relied on the fact that the attorney misconduct in that case had “resulted from a difficult relationship with a single client that appear[ed] to be an isolated episode not likely to recur.” (alterations added). The same could be said in the instant case. The hearing judge specifically found that Ms. Mentlik was a difficult client.

Respondent points out several inconsistencies in Ms. Mentlik’s testimony. These inconsistencies include: 1) Ms. Mentlik’s changing explanation