Attorney Grievance Commission v. Bell

GREENE, J. The Attorney Grievance Commission of Maryland (“Petitioner” or “Bar Counsel”), acting pursuant to Maryland Rule 16-751(a), filed a “Petition For Disciplinary or Remedial Action” against Jimmy Anthony Bell (“Respondent” or “Bell”), on May 23, 2012. Petitioner charged Bell with violating various Maryland Lawyers’ Rules of Professional Conduct (“MLRPC” 1 or “Rule”), specifically Rule 1.1 (Competence), 2 Rule 1.15(a) (Safekeeping Property); 3 and Rule 8.4(a) and (d) (Misconduct). 4 Petitioner also charged Bell with violating several Maryland Rules of Procedure (“Maryland Rule” or “Md. Rule”), including Maryland Rule 16-606.1(a)(l), (Attorney Trust Account Record-Keeping); 5 Maryland Rule 16- ⁵⁴⁶ 607(a) (Commingling of Funds); 6 and Maryland Rule 16-609(a)-(e) (Prohibited Transactions). 7 Pursuant to Maryland Rule 16-752(a) (Order Designating Judge), this Court referred the matter to Judge DaNeeka L. Cotton of the Circuit Court for Prince George’s County to conduct an evidentiary hearing and to render findings of fact and recommend conclusions of law pursuant to Maryland Rule 16-757. On November 1, 2012, Judge Cotton conducted an evidentiary hearing, during which Bell was represented by counsel, and thereafter the hearing judge issued “Findings of Fact and Conclusions of Law,” in which she found that Bell’s acts constituted violations of MLRPC 1.1, 1.15(a), 8.4(a) and 8.4(d), as well as Maryland Rules 16-606.1(a)(1), (a)(2), and (a)(3), 16-607(a), 16-609(a)-(c). In doing so, Judge Cotton stated the procedural history and made the following findings of fact: 8 Procedural History This case arises from a Petition for Disciplinary Action filed against the Respondent, Jimmy Anthony Bell, in the Court of Appeals of Maryland on May 23, 2012.

The Court of Appeals designated the undersigned judge of the Circuit Court for Prince George’s County to hear the action. The Respondent was served with the Petition for Disciplinary or Remedial Action on July 11, 2012. On August 9, 2012, Petitioner filed a Motion for Order of Default against the ⁵⁴⁷ Defendant for his failure to file an answer to the petition pursuant to Maryland Rule 16-754(a). On August 21, 2012, Respondent simultaneously filed an Answer to the Petition for Disciplinary Action and an Opposition to Petitioner’s Motion for Default.

On August 22, 2012, Petitioner withdrew its Motion for Order of Default. A hearing on this matter took place on November 1, 2012. Findings of Fact Respondent attended law school at American University, Washington College of Law, and earned his Juris Doctor in 1999. Respondent was admitted to the Maryland Bar on December 14, 1999.

Respondent maintains a law office located in Fort Washington, Maryland. On February 15, 2011, Respondent filed a lawsuit on behalf of Tracy Wiggs in the Circuit Court of Prince George’s County. Respondent received a check from Tracy Wiggs in order to pay for the filing fees. However, Respondent wrote a check from his Bank of America IOLTA (hereafter the trust account) to pay for the filing fee before depositing the check received from Mr. Wiggs. 1 On February 16, 2011 Respondent disbursed trust account check number 1177 in the amount of $145.00 made payable to “the Clerk of Court.” This disbursement caused Respondent’s trust account balance to fall to -$143.62.

Respondent intended to deposit the check he received from Mr. Wiggs into his trust account immediately, but became ill before he was able to do so. On February 18, 2011, Respondent made a $145.00 cash deposit into his trust account; restoring the overall account balance to $1.38. On February 18, 2011, Petitioner received notification from Bank of America that an overdraft had occurred on Respondent’s attorney trust account. ⁵⁴⁸ In a certified letter dated March 4, 2011, Petitioner requested that Respondent provide an explanation for the trust account overdraft and provide “client ledgers, deposit slips, canceled checks, and monthly bank statements” between November 2010 and March 4, 2011. Respondent failed to respond to Petitioner’s March 4, 2011 letter, which led Petitioner to docket a complaint against Respondent.

Petitioner sent a second letter to Respondent on April 12, 2011, requesting an explanation for the trust account overdraft and documentation regarding his trust account. On June 14, 2011, Respondent submitted a response to Petitioner explaining the events surrounding the overdraft of Respondent’s trust account. In his letter to Petitioner, Respondent provided a copy of check number 1177, the check that caused the overdraft, but failed to produce any other requested documentation. The Court notes that the investigation of Respondent’s case was delayed due to the lack of financial records provided.

Respondent waited four months to reply to Petitioner’s initial letter. Consequently, Petitioner subpoenaed Respondent’s bank records from Bank of America. Once Respondent finally provided client ledgers, they were unclear and appear hastily and haphazardly prepared. Respondent later admits that he failed to keep proper records, and that the documents produced into evidence were created from memory, after Petitioner initiated the current investigation.

The Court finds that Respondent’s client ledgers were created retrospectively and in anticipation of disciplinary action, rather than contemporaneously maintained. Mr. John DeBone, a paralegal for the Attorney Grievance Commission, reviewed bank statements for Respondent’s trust account. As a result of his review, Mr. DeBone testified that he categorized deposits and withdrawals made from the Respondent’s trust account based on client name. Mr. DeBone noted that there were a number of transactions which could not be attributed to a specific client; Mr. DeBone categorized these transactions as “Unidentified.” During the hearing, Mr. DeBone testified that these “Un ⁵⁴⁹ identified” transactions consisted of four deposits which totaled $25,650.00.

Mr. DeBone also discovered forty-five (45) cash disbursements Respondent made to himself from his trust account, amounting to $61,950.45. Mr. DeBone also noted disbursements, categorized as “Bell-Expenses,” that were made to various business vendors, such as, DirecTV, AT & T, and Verizon. Respondent made twenty-four (24) “Bell-Expenses” from September 2009 to February 2011. Mr. DeBone’s analysis also indicates that Respondent made a number of cash deposits into his trust account which he could not attribute to a specific client matter.

Based on his review of Respondent’s file, and his seventeen years of experience with the Attorney Grievance Commission, Mr. DeBone concluded that Respondent was clearly keeping earned attorney’s fees in his trust account, as evidenced by the fact that Respondent was paying his expenses from that account. Mr. DeBone stated that keeping some money in the account is permissible for covering maintenance fees, however the amount of money Respondent stored in his account far exceeded what is considered as an acceptable amount. At some point after his initial review of Respondent’s file, Mr. DeBone received Respondent’s client ledgers. Mr. DeBone testified that the funds in Respondent’s trust account generally seemed to “match up,” and that he did not believe Respondent was intentionally misappropriating funds from his clients.

The Court finds Mr. DeBone’s testimony credible. Petitioner’s initial investigation led to further concerns about Respondent’s trust account for the following clients. A. Lloyd Carter Respondent filed an employment discrimination lawsuit against the District of Columbia Government on behalf of his client, Lloyd Carter. On October 13, 2009, Respondent settled Mr. Carter’s case and received a contingency fee in the amount of $20,000.

Respondent received the settlement check for Mr. Carter’s case on February 1, 2010. Shortly ⁵⁵⁰ thereafter, Respondent discovered that the settlement cheek included funds designated for Respondent, as well as Mr. Carter. Instead of $20,000 in attorney’s fees, Respondent was only entitled to a portion of the check, specifically $14,448.55, while the remaining $5,551.45 belonged to Mr. Carter. On February 2, 2010, Respondent wrote check number 1137 from his trust account, made to “Cash,” in the amount of $15,742.45.

According to the client ledger for Lloyd Carter, check number 1137 represented attorney’s fees earned from the Lloyd Carter case, however this amount is $1,243.55 greater than the amount actually earned on the Carter matter. When confronted about the discrepancy between attorney’s fees actually earned on the Carter matter and money received, Respondent admitted that “[he] was mistaken.” On February 2, 2010, Respondent did write a cashier’s check to Mr. Carter in the amount of $5,551.45, however the funds for this check did not originate from Respondent’s trust account. B. Briana Green On September 2, 2009, Respondent deposited $3,500.00 into his trust account for the Briana Green case. Between September 8, 2009 and September 11, 2009, Respondent made the following disbursements from his trust account, categorized as “earned fees from Briana Green case:” 9/8/09 Direct TV payment -$ 308.09 9/8/09 Cheek # 1119 to Cash -$2,000.00 9/11/09 Check # 1121 to Cash -$1,200.00 The disbursements Respondent made to himself amount to $3,508.09, thus disbursing $8.09 more than was earned from the Briana Green client matter.

C. Derrick Hunter Respondent represented Derrick Hunter on a child support and visitation matter. On March 2, 2010, Respondent deposited $460.00 into his trust account as attorney’s fees earned in the Hunter matter. Respondent then made the ⁵⁵¹ following disbursements between March 3, 2010 and March 5, 2010: 3/3/10 AT & T payment -$206.44 3/4/10 Direct TV -$141.47 3/5/10 Check # 1144 to Cash -$120.00 Respondent disbursed a total of $467.91 to himself in the Hunter matter, exceeding the attorney’s fees actually earned by $7.91. D. Charles Smith On November 16, 2010 Respondent entered his appearance on behalf of Charles Smith.

On February 2, 2011, Respondent deposited $700.00 in attorney’s fees for his representation of Charles Smith. Between February 4, 2011 and February 14, 2011, Respondent made the following disbursements from his trust account: 2/4/11 AT & T -$366.64 2/4/11 Direct TV -$204.04 2/14/11 Check # 1178 to Cash -$160.00 Respondent withdrew a total of $730.68 in attorney’s fees from the Smith matter; thus receiving an excess of $30.68. Furthermore, testimony from Mr. Lindale Alston, Respondent’s accountant, revealed more egregious failures in Respondent’s record keeping. Mr. Alston was hired to prepare Respondent’s 2010 and 2011 taxes, however, Respondent failed to provide Mr. Alston with client records for 2010.

Respondent has apparently now provided client records, trust account statements, and checks in order to prepare his 2011 taxes; however, as of the date of the hearing, Respondent has not filed taxes for 2011. Judge Cotton further entered conclusions of law, concluding that Bell violated MLRPC 1.1, 1.15(a), 8.4(a) and (d), Md. Rule 16-606.1(a)(1), (a)(2), and (a)(3), Md. Rule 16-607(a), and Md. Rule 16-609(a)-(c). She explained: ⁵⁵² Conclusions of Law ^ ^ Respondent violated MRPC 1.1; Competence ^ ^ ^ “Thoroughness and preparation reasonably necessary for competent representation includes the proper management of case files.” See Att’y Griev. Comm’n v. Ober, 350 Md. 616, 630 , 714 A.2d 856, 863 (1998).

Incorporated within the competence requirement is a lawyer’s duty to properly maintain his trust account. See Att’y Griev. Comm’n v. Brown, 380 Md. 661, 667-68 , 846 A.2d 428, 432 (2004) (finding that an attorney’s failure to properly maintain settlement monies in his escrow account demonstrated his incompetence pursuant to Rule 1.1 of the Maryland Lawyers’ Rules of Professional Conduct). Failure to properly maintain a client’s settlement monies in an escrow account may also demonstrate incompetence under MRPC 1.1.

See Att’y Griev. Comm’n v. Maignan, 390 Md. 287, 296-97 , 888 A.2d 344, 349 (2005). As evidenced in his client ledgers, Respondent has exhibited a pattern of improperly handling client funds. Client ledgers indicate that Respondent has made a number of disbursements from his trust account for personal expenses, such as DirectTV, and AT & T. Furthermore, Respondent admitted during his deposition that he was not maintaining his client records as required by Maryland Rule 16-606.1, and attempted to create ledgers from memory once prompted by Petitioner.

Therefore, the Court finds that Respondent incompetently handled client funds, in violation of MRPC 1.1. Respondent violated MRPC 1.15(a); Safekeeping of Property % ^ ^ “The mere fact that the balance in an attorney trust account falls below the total amounts held in trust supports ⁵⁵³ a prima facie finding of [a] violation of [Rule 1.15].” See Att’y Griev. Comm’n v. Glenn, 341 Md. 448, 472 , 671 A.2d 463, 475 (1996) (noting that improper intent is not an element to Rule 1.15; “[t]he Court has consistently found inadvertent conduct that results in an escrow account deficit to be in violation of Rule 1.15”). On February 16, 2011, Respondent’s trust account dropped to - $143.62, thus supporting a finding that Respondent has violated Rule 1.15.

Though Respondent was able to replenish the account with Mr. Wiggs check just two days later, the fact that Respondent’s trust account fell to a negative balance is indicia of Respondent’s failure to properly safeguard client funds. Additionally, payment of filing fees in the Wiggs matter should have been paid from an operating account rather than Respondent’s trust account. Furthermore, withdrawing funds from a trust account for personal matters also constitutes a violation of Rule 1.15(a). See Att’y Griev.

Comm’n v. Moeller, 427 Md. 66, 71 , 46 A.3d 407, 410 (2012); see also Att’y Griev. Comm’n v. Powell, 369 Md. 462, 468-69 , 800 A.2d 782, 786 (2001[2002]) (concluding that there was clear and convincing evidence of a violation of MRPC 1.15(a) and Maryland Rule 16-607 where an attorney deposited earned fees and money received from his father into a bank account titled as an attorney trust account and used this account for personal and business purposes). As illustrated above, Respondent has made numerous disbursements from his trust account for personal expenses. Finally, failure to maintain a complete record of the receipt and disbursement of client funds constitutes a violation of Rule 1.15.

In Attorney Grievance Commission v. Obi, the Court of Appeals affirmed the hearing judge’s conclusion that a violation of Rule 1.15(a) occurred where the attorney’s “cash receipt journal, check register, statement of account, and cancelled checks failed to provide an adequate accounting of the origin of the funds in [the attorney’s] escrow account.” 393 Md. 643, 657 , 904 A.2d 422, 430 (2006). Similarly, the documents that Respondent ⁵⁵⁴ has provided makes it difficult for one to discern how much money Respondent received from clients, what money placed in the account was Respondent’s personal funds, and, most importantly, where the money was disbursed. In addition, Mr. Alston, Respondent’s accountant, testified that Respondent had failed to provide client ledger information needed in order to prepare Respondent’s 2010 taxes; further supporting the finding that Respondent failed to keep accurate accounting. Therefore, the Court finds that Respondent violated MRPC 1.15(a).

Respondent violated MRPC 8.4(a) and (d); Misconduct [T]he Court finds that Respondent violated MRPC 1.1 and 1.15(a); therefore, the Court also finds that Respondent engaged in professional misconduct in violation of MRPC 8.4(a). See Att’y Griev. Comm’n v. Cherry-Mahoi, 388 Md. 124, 159 , 879 A.2d 58, 80 (2005) (reasoning that because respondent violated “several Rules of Professional Conduct, she necessarily violated Rule 8.4(a) as well, which finds professional misconduct where a lawyer ‘violates or attempts to violate the Rules of Professional Conduct’ ”). In Attorney Grievance Commission v. James, the Court of Appeals opined that an attorney’s actions violated MRPC 8.4(d) where he was found to have used his escrow account for personal and business matters and failed to keep his client’s settlement money intact until disbursement. 385 Md. 637, 649-50 , 870 A.2d 229, 236 (2005); see also Att’y Griev.

Comm’n v. Zuckerman, 386 Md. 341, 374-75 , 872 A.2d 693, 713 (2005) (agreeing that a violation of Rule 8.4 occurred where the attorney misused his trust account and commingled client funds in his trust account). Similarly, Respondent has consistently used his trust account for personal matters, stored attorney’s fees in his trust account, and made several disbursements from the trust account to himself. These actions constitute a prejudice to the administration of justice, in violation of Rule 8.4(d). ⁵⁵⁵ Respondent violated Maryland Rule 16-606.1; Attorney Trust Account Record-keeping ifc % Maryland Rule 16-606.1 requires attorneys to keep a record of their trust accounts that “chronologically shows all deposits and disbursements,” as well as provide the “payee and the check number or other payment identification.” Att’y Griev. Comm’n v. Patterson, 421 Md. 708, 727-28 , 28 A.3d 1196, 1207 (2011) (overruling an attorney’s exceptions to the hearing judge’s determination that Rule 16-606.1 was violated when the evidence showed that the attorney failed to provide payment identification for all deposits and disbursements from his IOLTA account).

In the present case, Respondent admitted that he did not maintain client ledgers in compliance with Rule 16-606.1. An examination of Respondent’s client ledgers shows a number of occasions where Respondent failed to provide a purpose or description for deposits and disbursements made from his trust account. Respondent’s ledgers also fail to provide the balance of funds remaining in the trust account in connection with a specific client. Respondent also stated that he created client ledgers based on his recollection of client matters, rather than “at or near the time of the deposit” or disbursement as required by the Rule.

Therefore, the court finds that Respondent has violated Maryland Rules 16-606.1(a)(1), (a)(2), and (a)(3). Respondent violated Maryland Rule 16-607(a); Commingling of Funds Pursuant to Maryland Rule 16-607, an attorney is permitted to deposit advanced fees in a trust account, however, depositing earned fees into a trust account is prohibited. The Court of Appeals has consistently found that Rule 16-607 has been violated when an attorney has deposited money into a trust account that was not an advancement of fees, or has used money in the trust account for personal ⁵⁵⁶ expenses. See, e.g., Att’y Griev.

Comm’n v. Nwadike, 416 Md. 180, 199 , 6 A.3d 287, 298 (2010) (finding a violation of Rule 16-607 where an attorney failed to keep her earned fees and reimbursed expenses in her attorney trust account separate from her client’s property); Powell, 369 Md. at 469 , 800 A.2d at 786 (finding that an attorney had commingled funds by depositing earned fees and personal money into his attorney trust account). There is no evidence that Respondent used any other bank account in connection with his law practice. To the contrary, Respondent’s trust account was used to safeguard settlement money, pay filing fees to the Clerk of the Court, accept cash deposits, and pay personal bills. Review of Respondent’s client ledgers demonstrates that he consistently deposited money designated as earned attorney’s fees into the trust account.

For example, in the Green client matter Respondent deposited earned attorney’s fees into his trust account; however said income should have been deposited in an operating account and kept separate from client funds. Therefore, Respondent improperly deposited earned fees in his trust account. Additionally, Mr. DeBone testified that Respondent was keeping earned attorney’s fees in his trust account. For these reasons, the Court finds that Respondent has violated Rule 16-607(a).

Respondent violated Maryland Rule 16-609(a), (b), and (c); Prohibited