Attorney Grievance Commission v. Awuah

BELL, Chief Judge. The Attorney Grievance Commission (the “Commission”), by Bar Counsel, filed, in this Court, a petition seeking disciplinary action against Frank A.K. Awuah, the respondent. The petition alleged multiple violations of the Maryland Rules of Professional Conduct. Specifically, the respondent was charged with violating Rules 1.5 1 .15 2 ; 4.1 3 ; and 8.4. 4 In ⁴²³ addition, the Commission charged violations relating to the respondent’s management of his attorney trust account, namely, of Maryland Code (1996) § 10-302 5 and § 10-306 6 of the ⁴²⁴ Business Occupations and Professions Article and of the rules pertaining thereto, 7 ie., BU3 8 ; BU6 9 ; BU7 10 ; and BU9. 11 ⁴²⁵ Pursuant to Maryland Rule BV9b 12 , we referred the matter to the Honorable Michael D. Mason, of the Circuit Court for Montgomery County, for hearing and to make findings of fact and conclusions of law in accordance with Maryland Rule BVlla.

Following the evidentiary hearing, Judge Mason concluded that the respondent did violate Professional Conduct Rule 8.4(b), those pertaining to his attorney trust account, as well as § 10-302. On the other hand, Judge Mason concluded that Bar Counsel failed to prove the other violations by clear and convincing evidence, noting, in the process, that the respondent’s use of funds from a trust account for operating expenses was “motivated by ignorance of his obligations and not by fraud, dishonesty or deceit.” Bar Counsel has excepted only to the hearing court’s failure to find violations of Rules 1.15 and 8.4(c) as well as § 10-306. I Judge Mason made findings of fact as follows: “The Respondent, Frank A.K. Awuah, was born in Ghana and attended high school and university there. He initially came to the United States to attend MIT, where he received a Bachelor of Science in Chemistry.

After attending MIT, he went on to the University of Pennsylvania for one year. After leaving the University of Pennsylvania because no grant mon ⁴²⁶ ey was available, he went on to Georgia Tech where he ultimately graduated from law school in 1985. He was admitted to the practice of law in the summer of 1986 in the District of Columbia. The Respondent originally came to the District of Columbia hoping to find work with a public agency.

Only after all efforts in that regard proved fruitless, did he turn, out of economic necessity, to the private practice of law. He had never before worked in such an office, had no experience in running such an office and, as later events demonstrate, was ill-prepared to undertake the running of such a business. “He opened an office as a sole practitioner engaged in the general practice of law. At about the same time, he began operation of a business that provided some legal services called Immigration Counseling Services. Having been admitted to the practice of law in the District of Columbia, the Respondent applied for admission and was admitted to the practice of law in Maryland in 1990. “The Respondent has acknowledged that upon admission to the Bar of Maryland, he failed to maintain a separate account as is required for the handling of client funds.

Although he accepts that he is chargeable with such knowledge, he was unaware of the requirement to maintain such a separate account. Instead the Respondent used the Immigration Counseling Service account as a repository for client funds as well as fees that he earned in connection with some of his cases. By way of example, upon receiving fees in settlement of a case, he would deposit the entire sum into the Immigration Counseling Service account. After determining what monies were due to the client, he would disburse those monies.

Thereafter, however, he would leave his own fees in the account. He would then use those fees, out of that account, to pay personal and operating expenses from time to time as needed. Except apparently for client settlement sheets, he kept no records of what money in the account represented fees that he had earned versus clients’ monies. However, it is significant to note that there is no evidence that at any time since he began the practice of law in 1990 any client of his had lost any money as a result of this practice. ⁴²⁷ “It further appeared from the evidence that the Respondent was able at almost all times to maintain sufficient funds in the account to cover all checks drawn on the account.

The only occasion where the account appeared to have been overdrawn was soon after a secretary had deposited monies that were supposed to have gone into the Immigration Counseling service account into a separate operating account that he maintained. The Court accepts that his secretary did deposit these funds into the wrong account by accident at a time when the Respondent was leaving the country for a trip to his homeland. Because monies that he assumed had been deposited to the Immigration Counseling Service account had been deposited in a separate account, there were three checks that he wrote that caused Immigration Counseling Service account to show a negative balance. However, apparently, the bank covered those checks.

While it was somewhat surprising to the Court to hear that the Respondent didn’t even recognize his secretary’s error upon his return from his trip to Africa, he testified that he rarely bothered to look at the bank statements to attempt to reconcile the accounts. This testimony is corroborated by the fact that he did not discover until the hearing before the Inquiry Panel that many years ago, the bank had made a mistake by posting a deposit of approximately $11,000.00 as $1,000.00. This fact, that the bank owed the Respondent $10,000.00 went undiscovered for years. Finally, the Respondent testified that since the instituting of the investigation by Bar Counsel, he has substantially altered his record keeping as well as his banking practices and now does keep books for his accounts and does have a separate client trust account and does routinely review the accounts. “The Court also heard testimony that in a particular instance involving a client, Cynthia Dinkins, the Respondent entered into a fee arrangement which purported on its face to charge a one-third contingency fee on PIP payments.

The evidence showed that Cynthia Dinkins and her family, a total of four persons, were involved in an accident. The Respondent represented all four claimants. The insurance company settled all claims for a total sum of $9,500.00. However, ⁴²⁸ $2,265.00 of that sum represented PIP payments.

The settlement balance sheet ... on its face evidences that the Respondent initially charged one-third of the gross settlement, including PIP payments, as his fee in this case. This would represent a $750.00 payment for handling PIP claims. However, the same exhibit further reflects that the Respondent rebated $500.00 of his fee. Accordingly, the document can be read as then evidencing that with respect to the PIP claims the Respondent charged a total fee of $225.00 to process all four claims.

While there was a suggestion in a statement made by the Respondent before the Inquiry Panel, that he may have charged a one-third fee in other PIP cases at some time, the evidence was that this is no longer his practice and there was no other specific instance that the Court could find where such a fee was charged. The Court does not find in the Dinkins case that the fee actually charged was unreasonable in light of the number of PIP claims that were processed. “Most of the evidence presented related to certain assignments and authorizations which had been provided by Mr. Michael Wheatley, who testified on behalf of Medical Home Care Equipment (MHCE), to the Respondent in the cases of nine of the Respondent’s clients____ It was Mr. Wheatley’s complaint regarding the Respondent’s handling of these assignments] and authorizations which initially led to Bar Counsel’s investigation resulting in the instant petition. The unrebutted evidence was that in at least three of the nine instances, those involving Binty Masary, Samba N’Daiyes, and Benedicta Ofori, there had been no settlement. Therefore, the existence of assignment and authorizations in those cases in no way reflected upon the Respondent’s fitness to practice law.

In each of the remaining instances, the evidence showed that, notwithstanding the existence of assignments and authorizations in the file, the Respondent had failed to disburse monies directly from his trust account to MHCE in the full amount of their bills. Regarding the remaining six cases, the Respondent offered the following explanations. ⁴²⁹ “A. Toure Boubaker In this instance, the Respondent acknowledged that he had failed to pay the claim directly from the settlement proceeds. He explained that prior to the time of settlement he had discussed the claim with the client’s PIP carrier. He was told by that insurance representative that it was a covered expense.

They were auditing the expense. To the extent that they determined it to be fair and reasonable, it would be paid. Therefore, the Respondent, proceeding upon the assumption that PIP would pay the claim, disbursed the funds directly to the client, without withholding funds for MHCE. This explanation was unrebutted. “B. Cynthia Dinkins Here the Respondent testified that he was aware of the bill from MHCE at the time of settlement.

When he discussed that bill with the client, she represented to him that she would take care of it. Upon her promise to do so, he disbursed the sums directly to her, including the sums due to MHCE. Again, this explanation was unrebutted. “C. Vivian High Again, in this instance, the Respondent acknowledged being aware of the fact that at the time of settlement, that MHCE had an outstanding claim in the amount of $1,396.00. Respondent further testified that when he discussed this charge with the client, the client told him that she had spoken with Mr. Wilson, a representative of MHCE, who had assured her that the bill would be discounted.

The bill appeared to be quite high for the service offered. The client told the Respondent that she considered, in light of that conversation, the PIP payment of $2,000.00 to have discharged the claim. In response, the Respondent disbursed the remaining monies to the client without withholding the $1,396.00 claimed by MHCE. “Testimony at the time of the hearing did confirm that MHCE had employed a marketing individual named Wilson who was no longer employed by the company. Mr. Wheatley ⁴³⁰ had testified that he was uncertain what Mr. Wilson might have agreed to, but that Mr. Wilson would not have been authorized to enter into any such discussions.

Nevertheless, he did not deny that Mr. Wilson may have entered into such conversations. Again, this explanation of event'", was unrebutted by any evidence including any testimony from Ms. Vivian High. “D. Alim Ibrahim According to the Respondent, this case involved a claim for Worker’s Compensation. Discussing the claim with the insurance company, the Respondent was informed that the medical expenses would be paid directly by the insurance company. The Respondent further testified that at some point the adjuster told him that MHCE had compromised their bill.

The adjuster indicated to the Respondent that he was sending the attorney a check for the balance. Accordingly, the Respondent thereafter disbursed those monies to the client without withholding monies for MHCE. Again, the Respondent’s explanation was unrebutted. “E. and F. William Ahilable and Sammy Tachie In these two instances, the Respondent’s handling of the assignments and authorizations was similar and more problematic. In both of these instances, the MHCE was asserting claims in excess of $3,000.00.

According to the Respondent in each instance, he discussed these claims with the clients at the time of settlement. In both instances, the clients expressed surprise at the size of the claim. Each client separately upon learning of the amount of the claim told the Respondent that they would speak to Mr. Wilson, the representative from MHCE and get back to the Respondent. Thereafter the clients informed the Respondent that Mr. Wilson had agreed to accept $1,000.00 in each of their cases as full settlement of the claim.

Accordingly, in both cases, the Respondent withheld $1,000.00 for payment of the claims asserted by MHCE. Thereafter, he maintained that he had contacted MHCE and advised them that he was forwarding to them, pursuant to Mr. ⁴³¹ Wilson’s agreement with the Respondent’s client, the sum of $1,000.00 in both cases. MHCE responded that they would have to talk to Mr. Wilson and ultimately that the $1,000.00 was unacceptable. In both eases, the Respondent testified that he subsequently returned the money to the clients and informed the clients that he [sic] would then have to take care of these claims. “The problem with the Respondent’s explanation is there is little or no documentary evidence to support the Respondent’s explanation.

There was a settlement sheet for the Ahilable case ... which does not reflect that at the time of the settlement in January of 1992, $1,000.00 was withheld for payment to MHCE. There is no settlement sheet for the case of Sammy Tachie to provide similar corroboration. The Ahilable document does seem to provide some support for the Respondent’s testimony that he believed MHCE had agreed to accept $1,000.00 and withheld that amount. However, the Court is troubled by the fact that the Respondent could offer no canceled checks evidencing the subsequent payment if $1,000.00 to each of the clients after learning that MHCE would not accept those monies in satisfaction of their claims.

While the absence of such evidence causes the Court concern, in light of the absence of any other evidence to indicate that the Respondent at any time took a client’s monies for his own use, as well as the character testimony presented by and on behalf of the Respondent, as well as the overwhelming conceded evidence with respect to the Respondent’s total ineptness concerning the handling of the business aspects of his practice, the Court cannot say by clear and convincing evidence that the Respondent, after initially withholding the $1,000.00 for payment to MHCE, thereafter failed to return the monies to the clients.” II From these factual findings, Judge Mason concluded, consistent with what the respondent has always conceded, that the respondent failed to maintain a trust account as required by Rule BU3 and, therefore, also failed properly to designate ⁴³² such an account. 13 Also consistent with the respondent’s admission, he determined that the respondent “repeatedly commingled client funds with those of his own and that he failed to keep proper records regarding the handling of those monies.” And, the court acknowledged, the respondent on a single occasion directly transferred, albeit, accidentally, client trust funds into an operating account and on several occasions wrote checks to cash out of what he maintained as a trust account. While indeed violations of Rule BU9, Judge Mason viewed them, and so concluded, as unintentional. In a similar vein, noting his further finding that the respondent was ignorant of the obligation to refrain from commingling trust funds and his own and, in any event, “was not motivated to use client funds for his own benefit,” Judge Mason opined that the Bar Counsel failed to produce “clear and convincing evidence that at any time [the respondent] intentionally used client funds for any purpose other than that to which they were intended.” Moreover, having determined that there were instances in which the respondent did not notify Mr. Wheatley, who, as the representative of MHCE, was a person who had an “interest” in the settlement proceeds of the clients who dealt with it, and that, in those instances, he “improperly shifted the notification responsibility to the client,” the hearing court nevertheless attributed those lapses “to ignorance as opposed to any desire on the Respondent’s part to cheat Mr. Wheatley out of any monies to which he may have been entitled.” Bar Counsel’s submission that the respondent violated Rule 8.4 and §