Attorney Grievance Commission v. Bernstein

RAKER, Judge. The Attorney Grievance Commission, acting through Bar Counsel, filed a petition for disciplinary action against Jack A. Bernstein (Respondent), alleging violations of the Maryland Rules of Professional Conduct and the Business Occupations and Professions Article. The Commission charged Respondent with violating Rules 1.5 (Fees), 1 1.15 (Safekeeping prop ²¹¹ erty), 2 8.1 (Bar admission and disciplinary matters), 3 8.4 (Misconduct), 4 16-604 (Trust account-Required deposits), 5 16-606 ²¹² (Name and designation of account), 6 16-607 (Commingling of funds), 7 and 16-609 (Prohibited transactions). 8 The Commission further charged Respondent with violating § 10-306 (Misuse of trust money) 9 of the Business Occupations and Professions Article. Pursuant to Maryland Rule 16-709(b), we referred the charges to Judge Kathleen O’Ferrall Friedman of the Circuit Court for Baltimore City to conduct a hearing and make findings of fact and conclusions of law.

After conducting an evidentiary hearing, Judge Friedman concluded that Respondent had violated Rules 1.5, 1.15, 8.1(b), 8.4(c) and (d), 16-606, 16-607, 16-609, and § 10-306 of the Business Occupations and Professions Article, but that Respondent had not violated Rule 16-604. In this Court, Respondent excepted to Judge Friedman’s conclusion that he had ²¹³ violated Rule 8.4. Bar Counsel took no exceptions to Judge Friedman’s findings of fact or conclusions of law. I. Following an evidentiary hearing, Judge Friedman filed a memorandum detailing her findings of fact and conclusions of law.

We set forth Judge Friedman’s memorandum below. 10 “The Attorney Grievance Commission (“Petitioner”) acting through Bar Counsel filed a Petition for Disciplinary Action against Jack A. Bernstein (“Respondent”), alleging misconduct relating to a checking account with Crestar Bank and the mishandling of client funds. The Court of Appeals referred this matter to this court for a fact finding hearing. “The hearing began on July 28, 2000 and continued to September 5, 2000. Both Petitioner and Respondent filed proposed findings of fact and conclusions of law. Upon the evidence presented, the Court makes the following findings of fact and conclusions upon clear and convincing evidence.

Findings of Fact and Conclusions “Respondent, Jack Bernstein, is 45 years old and has been engaged in the practice of law since being admitted to the Maryland Bar on November 15, 1978. During the time relevant to this matter, he maintained an office for the practice of law at 5 Light Street, Baltimore, Maryland until April 1999 when he relocated to his current address at 110 St. Paul Street, Baltimore, Maryland. “Respondent graduated from the University of Maryland School of Law with a high grade point average. He passed the bar examination on his first attempt and during his undergraduate studies, he took and passed one introductory accounting course. “Respondent opened a checking account with Crestar Bank titled “Maryland Legal Services, Jack A. Bernstein, ²¹⁴ Esq., IOLTA” (“the account”). On four separate occasions, the Petitioner received a notice of an overdraft from Crestar Bank as follows: September 11, 1997, September 15, 1997, January 29, 1998, and February 17, 1998.

These notices brought about the investigation resulting in the Petition for Disciplinary Action. “The overdrafts occurred as follows: 1. September 8, 1997, check number 811 in the amount of $90.00 to the order of the Circuit Court for Howard County. 2. September 9, 1997, check number 812 in the amount of $5.00 to the order of the Circuit Court for Howard County. 3. January 23, 1998, check number 900 in the amount of $885.90 to the order of Federal Express. 4.

February 10, 1998, check number 923 in the amount of $500.00. (This check never cleared; the payee is unknown.) “There have been no further overdrafts with the account which Respondent closed. Respondent then opened an account with First Mariner Bank; there have been no overdrafts with that account to the date of the hearing before this Court. Failure to Respond to Lawful Demand for Information and to Provide Adequate Information “On September 11, 1997, Melvin Hirshman, Bar Counsel (“Bar Counsel”) sent a letter to Respondent notifying him of the first overdraft and requesting a full explanation.

Bar Counsel further requested Respondent provide within 10 days his client ledger cards, deposit slips, canceled checks, and monthly bank statements for the period April through September 1997. Respondent received the letter on September 12, 1997, but did not respond within 10 days as required. “After the second notice of the overdraft was received, Bar Counsel sent to Respondent another letter dated September 15, 1997, which was received September 17, 1997. ²¹⁵ This letter requested a full explanation of the overdraft and that Respondent provide his client ledger cards, bank deposit slips, canceled checks and monthly bank statements. “On September 25, 1997, Bar Counsel received a letter from Respondent. The correspondence included copies of bank statements for the period April through August 1997, but did not include canceled bank checks and bank deposit slips as requested. Respondent indicated in his letter that the overdraft occurred because he advanced court costs without depositing corresponding sums due to the unusual strain of activity caused by preparation for his daughter’s Bat Mitzvah on August 30,1997. “By a letter dated September 29,1997, Bar Counsel again requested more information and documentation relating to the overdrafts.

Specifically, Bar Counsel requested the September bank statement and the documents related to Respondent’s explanation of the overdraft. “On October 23, 1997, Bar Counsel received a response from Respondent, dated October 22, 1997, in which he repeated the same explánation given in his previous letter and included a copy of the September 1997 bank statement. The letter did not include any of the other requested documents such as canceled bank checks and bank deposit slips. “At this point, Bar Counsel docketed a complaint, and on October 29,1997, notified Respondent by letter. Bar Counsel again requested copies of canceled checks, client ledger cards, bank deposit slips and any other information that would assist in identifying deposits and disbursements for the period April through September 1997. Respondent was asked to respond within fifteen (15) days of the date of the letter.

Respondent did not respond to the letter of October 29,1997. “On November 26, 1997, Bar Counsel sent another letter to Respondent to provide the previously requested information within 10 days of the letter. Respondent failed to respond in a timely manner to the letter of November 26, 1997. ²¹⁶ “On December 17, 1997, the Petitioner received a letter dated December 22, 1997, but postmarked December 16, 1997, from Respondent in which he asked to meet to discuss the matter and indicated that the requests were overbroad and not focused on any issues raised. “On February 2, 1998, Bar Counsel sent another letter to Respondent which notified him of the third overdraft and requested documentation for the period August 1997 through January 1998. Respondent received the letter on February 3, 1998, but he did not respond in a timely manner. “On February 19, 1998, another letter was sent to Respondent, which notified him of the fourth overdraft and requested documentation of the period September 1997 through February 1998 within ten (10) days of the receipt of the letter. Respondent did not respond to the letter of February 19,1998. “On March 16, 1998, Assistant Bar Counsel, Delores O. Ridgell, (“Assistant Bar Counsel”) sent a letter to Respondent, which again requested a response within 10 days with an explanation for the overdrafts and documentation on the bank account. “On March 16, 1998, Bar Counsel received a letter from Respondent dated March 13, 1998.

In this letter, Respondent requested a meeting and enclosed bank statements for January and February 1998. Respondent provided no other documentation. “Respondent’s explanation for the January 1998 overdraft was that he had been assured by a bank teller that it had . cleáred. His explanation for the February 1998 overdraft was that it was a cascade of the prior overdraft. Respondent did not identify the payee of check number 923 (the February overdraft) nor provide Bar Counsel with the reason for the issuance of this check. “At trial, Respondent testified that check number 923 was paid, but the bank records through March 31, 1998 do not reflect payment of the check.

Respondent has not provided ²¹⁷ documentary evidence to corroborate that payment was made nor has he identified the intended recipient of the check. “On March 17,1998, Bar Counsel sent a letter in response to Respondent’s letter of March 13, 1998. This letter contained another request for records as previously requested in Bar Counsel’s letter of March 16, 1998 to Respondent. “On March 27, 1998, Respondent met with Assistant Bar Counsel and Commission Paralegal John DeBone at the Attorney Grievance Commission office. Respondent brought no documents to the meeting. “In response to a subpoena to Crestar Bank, Bar Counsel received canceled checks and deposit slips from the account. Neither the checks nor the deposit slips indicated a trust account.

At the March 27 meeting, Respondent was shown summaries of the bank records. He was asked again to provide documentation. “During the March 27 meeting, Mr. DeBone provided Respondent with a hypothetical model of the records which should be kept for an attorney trust account. (Petitioner’s Exhibit 31.) Nevertheless, Respondent admitted that he took no corrective steps and continued to keep no records prior to the hearing conducted by the Inquiry Panel on December 7, 1999. At the Inquiry Panel Hearing, Respondent denied receiving this information. “On May 15, 1998, Assistant Bar Counsel sent another letter to Respondent which requested information related to several transactions identified during the review of the bank records on March 27, 1998.

He was asked to respond within fifteen (15) days. “By telephone, Respondent requested and was granted an extension until June 15, 1998. A response was not received by June 15, 1998, and on June 19, 1998, a letter was sent to Respondent which again requested a response. However, on July 6, 1998, by letter dated June 30, 1998, Respondent provided some of the requested bank records. Respondent, by his own admission, kept no records except a calendar of ²¹⁸ fees.

He provided to Assistant Bar' Counsel only a few settlement sheets. “On July 10, 1998 and August 28, 1998, letters requesting the information not provided were sent to Respondent. Respondent did not provide a timely response to either the July 10 or August 28,1998 requests. “On October 28, 1998, Respondent again met with Assistant Bar Counsel and John DeBone. Respondent brought no documents and took no notes during the meeting. On November 10, 1998, Assistant Bar Counsel sent a letter to Respondent memorializing the meeting of October 28, 1998. “This Court concludes that Respondent failed to respond in a timely fashion to the reasonable inquiries by Bar Counsel to provide the requested documents and records and to provide adequate explanations of the overdrafts in violation of Rule 8.1(b) of the Maryland Rules of Professional Conduct. “The Petitioner’s requests were related to an investigation within the authority of the Attorney Grievance Commission and Bar Counsel.

Respondent failed to provide the canceled checks requested by Bar Counsel and ealendar/cal-endars referred to at the Inquiry Panel as well as check stubs referred to at the hearing before this Court. Although he eventually provided a few settlement sheets and the creditors reports he filed for Cobb Financial (Petitioner’s Exhibits 21 and 25), he did not respond in a timely fashion and only after several requests by the Petitioner. Respondent never identified the client matters which entitled him to the cash disbursements listed in Petitioner’s Exhibit 28, nor did he identify the source/sources of the cash deposits as requested at the meeting on October 28, 1998 and by letter dated November 10,1998. “In his letter dated December 22, 1997, Respondent suggested that the requests were over broad, but at no time did he provide authority for this assertion. At the hearing before this Court, he stated that he did not provide the requested documents because he did not have them.

Yet documents that he did maintain, such as monthly bank ²¹⁹ statements and canceled checks, he did not produce in a timely manner. At the hearing, Respondent gave another reason for why he did not respond to Bar Counsel’s requests: He stated, in so many words, that he did not perceive the Attorney Grievance Commission process as a prosecutorial proceeding, but rather one in which lawyers would receive assistance to achieve resolution of the inquiry. “Respondent’s explanation for the overdrafts was not satisfactory because the actual reason for the overdrafts was his failure to maintain proper records and his inadequate accounting system. Had he maintained the account properly, he would have known whether there were sufficient funds in the account to cover a withdrawal. Failure to Communicate Contingent Fee Agreement in Writing “Respondent handled personal injury and collection cases and used contingency fee agreements in those matters.

He deposited the settlement checks for those cases to the account. Respondent, by his own admission at the hearing before this Court, failed to communicate the terms of contingency fee agreements to his clients in -writing. He testified that he did not know he was required to have written contingency fees. Respondent admitted allowing fees earned in these contingency fee cases to accrue in the account for an indefinite period of time.

There were no regular bank charges on this account which would require the deposit of Respondent’s personal funds to the account. “The Court concludes that Respondent failed to communicate the terms of contingency fee agreements to his clients in writing in violation of Rule 1.5 of the Maryland Rules of Professional Conduct. The fact that he was ignorant of the requirement is no excuse. Failure to Safekeep Property of Clients “Respondent used the account in question to deposit funds he received in connection with the representation of his clients. He did not maintain a check register for the account.

Moreover, he acknowledged that, although he ²²⁰ knew since 1983 that a trust account is required, it was not his practice to promptly withdraw fees earned following settlement of contingency fee matters and that he would allow his personal funds to accrue in the trust account for an indefinite period of time. “Respondent also failed to maintain this account as required by Title 16, Chapter 600 of the Maryland Rules and did not keep complete records of the client and/or third party funds deposited and disbursed from this account. He admitted that he kept no records regarding funds received and deposited into the account on behalf of a client identified as Cobb Financial, Inc. He asserted that he adopted the practices and procedures of several law firms with which he has been associated over the years. “Respondent’s failure to keep an adequate balance in the account caused a delay in the receipt of funds to which Federal Express, the third party subrogee of Crystal Brown Barnes, was entitled. It was necessary for check number 900 to be presented a second time on January 30, 1998 in order for the third party to obtain payment. “Also, check number 859 payable to Litofsky, Brager & O’Brien LLC on behalf of clients identified as Deb and Roger Jones was not issued, according to the date on the check, until November 12, 1997. It was not presented until November 20, 1997, at which time it cleared.

Respondent, however, waited almost two weeks after the other disbursements for these checks before he wrote check number 859. The other disbursements are dated October 30, 1997, and cleared the bank October 31 and November 4, 1997. The settlement sheet provided to these clients is dated October 28, 1997 and reflects the disbursement of payment to Litof-sky, Brager & O’Brien as well as the other disbursements. (Petitioner’s Exhibit 21.) Had check number 859 been presented prior to the deposit of $4,500 which was posted to the account on November 13, 1997, it would not have cleared. “Respondent testified that it was his belief that check number 923 in the amount of $500, which failed to clear the ²²¹ bank when first presented on February 10, 1998, was eventually paid.

The bank records do not reflect the payment of this check through March 31, 1998, the point at which time the Petitioner’s review of the bank records ended. Payment to the client or third party entitled to check number 923 was delayed approximately six weeks. “The Court concludes that Respondent violated Rule 1.15(a) and Rule 1.15(b) of the Maryland Rules of Professional Conduct. He failed to keep clients’ funds separate from his own and failed to keep complete records of such funds in violation of Rule 1.15(a). Respondent withdrew funds from the account and failed to provide an adequate explanation of the use of the funds in violation of Rule 1.15(b).

Trust Account-Required Deposits “Respondent made deposits to the account in the form of cash. Although he provided no explanation of these deposits, Petitioner presented no evidence that any of the deposits were funds other than those received in trust. This Court concludes that there is no violation of Rule 16-604 of the Maryland Rules regarding Attorney Trust Accounts. Failure to Properly Name and Designate Account “Respondent opened the account titled “Maryland Legal Services, Jack A. Bernstein, Esquire, IOLTA.” He used the account as a client funds/trust account.

The checks and deposit tickets for the account bear only Respondent’s name and the address of his office without any of the three required designations: “Attorney Trust Account,” “Attorney Escrow Account,” or “Clients’ Funds Account.” On the date of the hearing before this Court, his current account with First Mariner, by Respondent’s own admission, was not titled properly. (See Petitioner’s Exhibits 30, 32 and 33.) Subsequently, by way of a Motion to Alter and Amend and a Notice of Filing Amended Answer to Discovery, Respondent submitted proof that the First Mariner account is now properly titled, “Jack A. Bernstein, Attorney, Escrow Account.” The Court concludes that Respondent violated ²²² Rule 16-606 of the Maryland Rules regarding Attorney Trust Accounts. “There is no evidence that Respondent charged unreasonable fees. The account records and Respondent’s testimony show that the withdrawals for fees were approximately one-third of the settlement amount obtained. Commingling of Personal and Client Funds in the Account “Respondent commingled personal and client funds in the account.

Respondent acknowledged that he failed to withdraw promptly earned fees from settlement proceeds in personal injury cases and left the funds in the account for an indefinite period of time. “This Court concludes that Respondent violated Rule 16-607 of the Maryland Rules regarding Attorney Trust Accounts. Withdrawal of Funds from Trust Account Payable to Cash “Bank records reveal that Respondent withdrew funds from the account by way of checks payable to “cash.” He received the proceeds of these checks and would usually deposit the checks to his personal bank account. Respondent testified that he received these funds as payment of fees, but he failed to identify the client matters to which the disbursements related. Likewise, he failed to identify the sources of funds deposited as cash into the account. “The Court concludes that Respondent withdrew funds from the account by check made payable to cash in violation of Rule 16-609 of the Maryland Rules regarding Attorney Trust Accounts. “Respondent failed to maintain in trust the funds he received on behalf of a client identified as Crystal Brown Banes.

The third overdraft notice was issued when check number 900, in the amount of $885.90 (payable to the third party subrogee on behalf of this client) was presented by the payee, Federal Express. “This occurred at the time that Respondent was already under investigation as a result of prior overdrafts. He had also indicated in a letter dated October 10,1997, that he was ²²³ reconciling the account twice a month. (Petitioner’s Exhibit 8.) This check, dated December 22,1997, was first presented January 23, 1998. On that date, the balance in the account was a little over $600.

Respondent wrote checks to cash and received the proceeds of these checks while check number 900 was outstanding. Check number 900 eventually cleared the account on January 30, 1998 as the result of a deposit made in the amount of $3,000 on January 28, 1998. The deposit was an insurance check payable to another of Respondent’s clients, Mary Bryant. Thus one client’s obligation was paid from