Attorney Grievance Commission v. Berry

BATTAGLIA, J. Steven Gene Berry, Respondent, was admitted to the Bar of this Court on December 15,1988. On November 26, 2012, the Attorney Grievance Commission, acting through Bar Counsel (“Bar Counsel”), pursuant to Maryland Rule lG-TbRa), 1 filed a ¹⁵⁵ “Petition For Disciplinary or Remedial Action” against Berry, charging violations of the Maryland Lawyers’ Rules of Professional Conduct, including Rules 3.3(a)(1) (Candor Toward the Tribunal), 2 8.4(b), (c) and (d) (Misconduct), 3 and Rule 1.15(a) (Safekeeping Property), 4 concomitant with violations of Section 10-306 of the Business Occupations and Professions Article, Maryland Code (2000, 2010 Repl. Vol.) (Misuse of Trust Mon ¹⁵⁶ ey), 5 Section 10 — 606(b) of the Business Occupations and Professions Article, Maryland Code (2000, 2010 Repl. Vol.) (Penalties), 6 Maryland Rule 16-607 (Commingling of Funds), 7 and Maryland Rule 16-609 (Prohibited Transactions). 8 Bar Counsel alleged in its Petition for Disciplinary or Remedial Action that after Berry’s assumption of the duties of successor personal representative for the Estate of Patricia Mae Bowles (“Bowles Estate”), Berry withdrew more than $50,000 without court authority, deposited his own funds into the Bowles Estate account to cover deficiencies, and submitted multiple accounts to the Orphans’ Court containing false statements and misrepresentations to conceal unauthorized withdrawals from the Bowles Estate account.

Additionally, Bar Counsel alleged that Berry failed to hold and maintain the ¹⁵⁷ funds of clients in trust, while depositing his own funds in his attorney trust account to cover overdrafts, as well as using client funds to reimburse other clients. In an Order dated December 4, 2012, this Court referred the matter to Judge Steven G. Salant of the Circuit Court for Montgomery County for a hearing, pursuant to Rule 16-757. 9 Judge Salant issued Findings of Fact and Conclusions of Law, after which this Court held oral argument. Immediately following argument, a Per Curiam Order disbarring Berry was entered on January 14, 2014, which stated: ORDERED, by the Court of Appeals of Maryland, that the respondent, Steven Gene Berry, be, and he is hereby, ¹⁵⁸ disbarred, effective immediately, from the further practice of law in the State of Maryland; and it is further ORDERED that the Clerk of this Court shall strike the name of Steven Gene Berry from the register of attorneys, and pursuant to Maryland Rule 16-760(e), shall certify that fact to the Trustees of the Client Protection Fund and the clerks of all judicial tribunals in the State; and it is further ORDERED that respondent shall pay all costs as taxed by the Clerk of this Court, including the costs of all transcripts, pursuant to Maryland Rule 16 — 761(b), for which sum judgment is entered in favor of the Attorney Grievance Commission of Maryland against Steven Gene Berry. Judge Salant’s written Findings of Fact and Conclusions of Law stated: Findings of Fact and Conclusions of Law [ 10 ] Pursuant to an Order of the Court of Appeals dated December 4, 2012, the above-captioned disciplinary matter was transmitted to the Circuit Court for Montgomery County, Maryland, for trial relating to Respondent’s alleged professional misconduct in misappropriating funds in an estate escrow account as successor personal representative and attorney for the estate and for overdrafting funds in his attorney trust account.

The matter came before this Court for a two-day trial on April 15, 2013. Upon consideration of the evidence presented at trial and the arguments of counsel and the parties, this Court finds the following facts to have been established by clear and convincing evidence: Findings of Fact Background Respondent, Steven Gene Berry (“Respondent” or “Berry”) was admitted to the Maryland Bar on December 15, 1988. Berry has also been previously admitted to the Oregon Bar (1978) and the Indiana Bar (1982). Respondent operates a general solo practice in Bethesda, Maryland that ¹⁵⁹ consists primarily of representing individuals with small traffic or criminal matters in the District Courts of Maryland, occasional trust and estate work, occasional domestic relations cases, relatively simple wills and powers of attorney, and some court-appointed federal misdemeanor and appellate cases.

Respondent has no associates, secretary, receptionist, law clerk, or paralegal. Respondent has no previous history of bar complaints or disciplinary actions. The Bowles Estate On February 15, 2005, Respondent was appointed as successor personal representative in the Estate of Patricia Mae Bowles (“Bowles Estate”), Estate No. W43773, in the Orphans’ Court for Montgomery County. Respondent was appointed to this position after the original personal representative, Michelle B. Allen, misappropriated more than $300,000 from the Bowles Estate.

On May 12, 2005, Respondent opened an escrow account for the Bowles Estate at Mercantile Potomac Bank (now PNC Bank) titled “Estate of Patricia Mae Bowles, Steven G. Berry (Personal Representative)” (“Bowles escrow account”). Respondent opened the account with a check in the amount of $14,997.66 from Wachovia Bank, where the Bowles escrow account was originally held by Michelle Allen. John DeBone, a paralegal with the Attorney Grievance Commission, reviewed, summarized, and analyzed Respondent’s bank records and accounts submitted to the court. As DeBone testified, Respondent’s accountings contained three types of errors: (1) a check went through the bank but the check listed on the accounting was listed as a different amount; (2) a check went through the bank but was never listed on an accounting; and (3) a check listed on the accounting never went through the bank during the time period reviewed.

Throughout his appointment as successor personal representative and attorney to the Bowles Estate, Respondent made numerous unauthorized disbursements to himself for commission and attorney’s fees and failed to accurately reflect these disbursements on his accounts to the court. ¹⁶⁰ On November 4, 2005, Respondent wrote Check Number 1003 payable to “Steven G. Berry” as “Successor Personal Representative” in the amount of $9,500 from the Bowles escrow account, and cashed the same on November 7, 2005. On November 18, 2005, Respondent wrote Check Number 1004, again payable to himself, in the amount of $4,500, and cashed the same on November 21, 2005. On December 2, 2005, Respondent wrote Check Number 1005, payable to himself in the amount of $500, and cashed the same on December 5, 2005. At the time Respondent withdrew funds for himself in the total amount of $14,500 from the Bowles escrow account, he had not received approval from the Orphans’ Court to disburse monies to himself as successor personal representative, nor did he petition the court for approval to disburse despite being aware that he was required to do so.

Respondent also had not received consent from the interested persons of the Bowles Estate to disburse monies to himself for personal representative commission or counsel’s fees. On December 6, 2005, after having already disbursed a total of $14,500 to himself, Respondent filed a Petition for Allowance of Interim Personal Representative Commission and Interim Attorney’s Fees (“First Petition”) requesting an interim personal representative’s commission and counsel’s fee of $15,834.37 for services he rendered on behalf of the estate and stating that he applied a 25% professional courtesy discount to the actual time expended on the case. In the Petition, Respondent falsely represented that the Bowles escrow account had a “sum total of $22,671.44.” In fact, as of December 5, 2005, when Respondent served the Petition upon interested parties, there was a balance of $8,171.44. The balance was $8,171.44 as a result of disbursements Respondent made to himself totaling $14,500, which Respondent failed to disclose to the Court in the First Petition.

On January 17, 2006, the Court approved Respondent’s request for $15,834.37 as and for commission and fees. ¹⁶¹ Seven months later, on July 17, 2006, Respondent filed his First Account of Successor Personal Representative for the period of January 11, 2004 through July 17, 2006. Berry signed the First Account under oath and under the penalties of perjury. However, Respondent knowingly and deliberately presented inaccurate information in his First Account to give the false impression that his accounting and disbursements of monies held in the Bowles escrow account were proper and lawful. In his First Account, Respondent represented that Check Number 1003 was dated 5/24/2005, was in the amount of $21.18, and was issued to “U.S. Postal Service” for “payment for certified mail postage.” However, Check Number 1003 was actually dated 11/4/2005, was in the amount of $9,500, and was issued to “Steven G. Berry” for “Patricia M. Bowles.” Also, Respondent excluded a copy of Check Number 1003 from his First Account, although he included copies of most of the other checks he disbursed from the Bowles escrow account.

In addition to misrepresenting Check Number 1003 in his First Account, Respondent failed to disclose numerous checks that he issued to himself from January 11, 2004 to July 17, 2006 without authorization or approval from the Orphans’ Court, as follows: Date (issued and posted) Check Number Amount Payee 11/18/05 and 11/21/05 1004 $4,500 Steven G. Berry 12/2/05 and 12/5/05 1005 $500 Steven G. Berry 12/6/05 and 12/7/05 1006 $750 Steven G. Berry 1/19/06 and 1/19/06 1007 $4,000 Steven G. Berry 3/11/06 and 3/13/06 1008 $6,000 Steven G. Berry 4/28/06 and 4/28/06 1009 $2,000 Steven G. Berry 5/5/06 and 5/8/06 1010 $2,000 Steven G. Berry 6/30/06 and 7/3/06 126 $2,500 Steven G. Berry In sum, by July 2006, Respondent had taken for himself a total of $31,750 from the Bowles escrow account without authorization from the court and without disclosing same to either the Orphans’ Court or to the interested persons. In his First Account, Respondent additionally misrepresented that he disbursed Check Number 115, dated 1/21/2006, for the amount of $15,834.37 to Steven Gene Berry as “personal representative’s commission and counsel ¹⁶² fee.” However, Respondent never presented that check for payment. Respondent admitted during trial that he never intended to cash the check, but only wrote it and presented a copy to the court to give the false impression that he did. Respondent knew that such information was false and inaccurate, yet included the same to purposefully conceal the multiple unauthorized payments to himself.

Respondent subsequently filed eight additional accounts, all signed under oath and penalties of perjury, and all of which contained misrepresentations and omissions. On July 31, 2006, Respondent filed an Amended First Account of Successor Personal Representative of the Bowles Estate in which he continued to make the same misrepresentations as he did in his First Account. On July 10, 2007, Respondent filed his Second Account of Successor Personal Representative. Not only did the Second Account contain the same misrepresentations from his previous account but also contained additional misrepresentations to conceal the unauthorized disbursements to himself from the Bowles escrow account.

Respondent fabricated the dates, amounts, and payees on checks, as well as the purpose of the disbursements of the checks. Respondent provided, in part, the following in his Second Account: Date Check No. Amount Payee/Purpose 7/17/2006 126 $25.00 U.S. Postal Service — postage for mailing the First Account to the interested persons. 7/31/2006 128 $21.00 U.S. Postal Service — postage for mailing to Motion for Summary Judgment Regarding the prior Personal Representative’s Motion to Approve Sale of 1053 Grady Avenue, Char-lottesville, Virginia with attached Exhibits to the interested persons. 10/17/2006 131 $4.88 U.S. Postal Service — fee for certified mail Service on Attorney Richard Paugh. 10/30/2006 132 $10.08 Nelson County, Virginia, Treasurer — property tax. 4/5/2007 134 $11.16 U.S. Postal Service — postage for mailing of the spreadsheet of Michelle B. Allen’s provided financial information to the Interested Persons. The actual disbursements Respondent made for these check numbers, as revealed by the bank records of the Bowles escrow account, were as follows: ¹⁶³ Date Check Number Amount Payee 6/30/2006 126 $2,500 Steven G. Berry 7/26/2006 128 $3,200 Steven G. Berry 8/8/2006 131 $1,500 Steven G. Berry 8/21/2006 132 $2,000 Steven G. Berry 10/5/2006 134 $2,000 Steven G. Berry Respondent never disclosed the actual disbursements to the Court or to the interested persons of the Bowles Estate. In addition, as Respondent had done in the First Account, Respondent failed to disclose in the Second Account the following checks that he issued to himself from the Bowles escrow account: Date (issued and posted) Cheek Number Amount Payee 10/25/06 and 10/26/06 137 $3,200 Steven G. Berry 11/2/06 and 11/3/06 140 $1,000 Steven G. Berry 11/10/06 and 11/10/06 141 $2,000 Steven G. Berry 11/30/06 and 11/30/06 142 $1,000 Steven G. Berry 12/14/06 and 12/15/06 143 $1,400 Steven G. Berry 1/30/07 and 1/31/07 144 $1,500 Steven G. Berry By July 2007, Respondent had taken a total of $50,550 from the Bowles escrow account without authority or approval from the court.

From April 30, 2008 through May 20, 2010, Respondent filed his Third, Fourth, Fifth and Amended Fifth Accounts of Successor Personal Representative, which, again, were prepared and filed under oath and under penalties of perjury. These accounts not only contained the same misrepresentations and omissions from Respondent’s previous accounts, but also contained additional misrepresentations concerning disbursements he made to himself from the Bowles escrow account. Respondent again fabricated the dates, amounts, payees, and purposes of the disbursements. For example, Respondent provided, in part, the following in his Third, Fourth, Fifth, and Amended Fifth Accounts: Date Check No. Amount Payee/Purpose 8/9/2007 187 $23.00 U.S. Postal Service — Postage Pee for mailing the Second Account of Successor Personal Representative and Petition to Show Cause. 9/9/2008 1008 $5.20 U.S. Postal Service — mailing to Attorney James W. Cox of Michie, Hamlett, Rasmussen & Tweel, PLLC 11/17/2009 1012 $30.25 Nelson County, Virginia, Treasurer — property tax. 5/11/2010 1013 $30Nelson County, Virginia, Treasurer — property tax. ¹⁶⁴ 5/12/2010 1014 $8,461.78 Register of Wills for Montgomery County The actual disbursements Respondent made for these check numbers, as revealed by the bank records of the Bowles escrow account, were as follows: Date Check No. Amount Payee 10/25/2006 137 $3,200 Steven G. Berry 8/22/2008 1008 $60.00 Steven G. Berry 9/24/2008 1012 $100.00 Steven G. Berry 11/21/2008 1013 $10.06 U.S. Postal Service 12/5/2008 1014 $30.25 Treasurer — Nelson County Respondent never disclosed the actual disbursements of these checks to the Court or to the interested persons of the Bowles Estate.

Further, Respondent never corrected any of his accounts with the Orphans’ Court as to either his omissions or misrepresentations. As of May 1, 2010, the balance of the Bowles escrow account had been reduced to $834.95 after Respondent had made multiple unauthorized payments to himself. On May 12, 2010, despite this reduced account balance, Respondent issued Check Number 1022 in the amount of $8,461.78 to “Register of Wills for Montgomery County,” when the Bowles escrow account did not contain sufficient funds to cover the check. In order to cover the shortfall, on May 11, 2010 and May 13, 2010, Respondent’s father, Donald Berry, wired $5,000 and $3,000, respectively, into Respondent’s Attorney Trust Account.

On May 12, 2010 and May 14, 2010, Respondent deposited nearly all of the monies he received from his father, specifically $4,900 and $2,900, respectively, into the Bowles escrow account. But for the monies from his father’s loan, Respondent would not have had sufficient funds in the Bowles escrow account to cover the entire amount of Check Number 1022. Respondent purposefully deposited his own personal funds into the Bowles escrow account to cover the deficiency caused by his unauthorized payments to himself from the escrow account. On August 3, 2010, Respondent filed his Amended Petition for Second Interim Personal Representative Commission and Attorney Fees (“Second Petition”), which was signed under oath, requesting an additional $23,828.06 in ¹⁶⁵ commission and attorney’s fees.

Respondent attached his invoice for work allegedly performed on behalf of the Bowles Estate from December 9, 2005 through May 20, 2010 and indicated that had he charged his normal fee rate, he would have generated a fee of $69,919.50. However, when Respondent filed the Second Petition, only $80.76 remained in the Bowles escrow account because Respondent has already taken for himself a total of $50,760 without any authority or approval from the court. Respondent failed to disclose the disbursements he made to himself from the Bowles escrow account. Respondent falsely represented that the Bowles estate had a “balance forward of $24,534.56” and that it was “SOLVENT ”.

On January 14, 2011, the Orphans’ Court granted Respondent’s Second Petition and authorized Respondent to pay himself $23,828.06 from the assets of the Bowles Estate. Based upon the two Orders granting Respondent’s requests for interim commission and fees, Respondent was authorized by the Court to pay himself a total of $39,662.43 from the assets of the Bowles Estate. Significantly, as of February 10, 2009, Respondent had already paid himself, without any notice to or authority from the court, a total of $50,760 from the Bowles escrow account as follows: Date (posted) Check No. Amount 11/7/05 1003 $9,500.00 11/21/05 1004 4.500.00 12/5/05 1005 500.00 12/6/05 1006 750.00 1/19/06 1007 4.000. 00 3/13/06 1008 6.000. 00 4/28/06 1009 2,000.00 5/8/06 1010 2,000.00 7/3/06 126 2.500.00 7/26/06 128 3.200.00 8/8/06 131 1.500.00 8/21/06 132 2,000.00 10/5/06 134 2,000.00 10/26/06 137 3.200.00 11/3/06 11/10/06 140 141 1,000.00 2,000.00 11/30/06 142 1,000.00 12/15/06 143 1.400.00 ¹⁶⁶ 1/31/07 144 1,500.00 8/25/08 1008 60.00 9/24/08 1012 100.00 2/10/09 1017 50.00 Total $50,760.00 In January 2011, the Bowles escrow account balance fell to $50.51, which was insufficient to cover the remaining checks issued by Respondent to complete the administration of the Estate. Therefore, on January 24, 2011, Respondent again deposited his personal funds in the Bowles escrow account in the amount of $664.99 to cover additional checks he had disbursed on behalf of the estate.

As previously noted, Respondent took $50,760 from the Bowles Estate at a time he was only authorized by the Court to take $15,834.37. Respondent, therefore, unlawfully took $34,925.63 in commission and fees from the Bowles Estate and never disclosed the same to the Orphans’ Court. Even considering the Court’s approval of an additional $23,828.06 in commission and fees based on Respondent’s Second Petition, for a total amount approved of $39,662.43, Respondent still unlawfully took $11,097.57 in commission and fees from the Bowles Estate over what was approved by the Court without ever revealing the same. On August 1, 2011, Respondent filed his Sixth Account of Successor Personal Representative for the period from May 14, 2010 through July 31, 2011.

In his Sixth Account, Respondent continued to make the same misrepresentations as in his previous accounts, as well as new misrepresentations as follows: Date Check No. Amount Payee/Purpose 2/4/2011 1021 $23,728.06 Seven G. Berry, Successor Personal Representative, Counsel Pro Se & Court — Appointed Special Administrator — personal representative’s commission & attorney’s fee 2/12/2011 1022 $598.50 Michie, Hamlett, Lowry, Rasmussen & Tweel, PLLC — attor ney’s fee for Virginia counsel 4/12/2011 1023 $42.00 Circuit Court for Nelson County, Virginia — recording fee for ¹⁶⁷ transfer of rural real property from Christine A. Bowles to Patricia Mae Bowles 5/24/2011 1024 $30.25 Nelson County, Virginia, Trea surer — property tax for rural lot no. Jp8~A-68 However, the actual disbursements Respondent made, as revealed by the bank records of the Bowles escrow account, were as follows: Date Check No. Amount Payee 5/11/2010 1021 $30.25 Treasurer Nelson County 5/17/2010 1022 $8,461.78 Register of for Montgomery County 5/14/2010 1023 $12.48 U.S. Postal Service for Postage-5th account 5/21/2010 1024 $17.92 U.S. Postal Service Respondent never disclosed the actual disbursements to the Court or to the interested persons of the Bowles Estate. Respondent deliberately and purposefully misrepresented the amount and payee of Check Number 1021 to give the court the false impression that he was making proper and authorized disbursements to himself from the Bowles Estate, when, in fact, he had taken above and beyond what the court had authorized to pay himself as commission and attorney’s fees. Respondent failed to disclose in his Sixth Account the following checks that he issued from the Bowles escrow account: Date Check No. Amount Payee 5/25/10 1025 $15.20 U.S. Postal Service 8/3/10 1026 $16.56 U.S. Post Office 11/15/10 1027 830.25 Treasurer Nelson County 2/18/11 1028 $598.50 Michie, Hamlett, Lowry, Rasmussen, & Tweel, PLLC 6/1/11 1029 $42.00 Circuit Court for Nelson County, Virginia 6/1/11 1030 $42.00 Circuit Court for Nelson County, Virginia 6/1/11 1031 $30.25 Treasurer Nelson County By February 2012, Respondent received notice that Bar Counsel was investigating his disbursements as successor personal representative and attorney of the Bowles Estate.

However, on March 12, 2012, Respondent filed, under oath, his Third and Final Petition for Allowance of Successor and ¹⁶⁸ Personal Representative Commission and Attorney’s Fees (“Third Petition”) and failed to disclose to the court disbursements he made to himself. In his Third Petition, Respondent requested an additional $26,492.70 in commission and fees, and further requested, in light of the estate being insolvent, that the original personal representative’s bond be condemned and applied to his outstanding commission and fees. Nowhere in his Third Petition did Respondent mention that as of February 2009, he had taken $11,097.57 more than he was authorized by the Court to take as commission and fees. Rather, Respondent falsely claimed that he incurred expenses “which were paid out of the undersigned’s own funds in order to carry this matter through to a conclusion and which are not requested herein simply as a matter of convenience....” In fact, Respondent never used his own funds in the Bowles Estate matter, but rather used funds from his escrow account, making payments to himself approximately nineteen times between 2005 and 2007, without any notice, approval or authorization from the court.

On April 24, 2012, the court authorized Respondent to pay himself a total of $26,492.70 in commission and fees. On the same day, the court also approved Respondent’s request that his commission as personal representative of the Bowles Estate be taxed as court costs against the estate so that Respondent could be paid out of the original personal representative’s $18,000 bond. Accordingly, on July 6, 2012, Respondent was paid an additional $18,000 by the bond from Travelers Casualty and Surety Company of America. With the court’s approval of his Third Petition, Respondent was authorized to pay himself a total of $66,155.13 ($15,834.37 + $23,828.06 + $26,492.70) in commission and fees.

However, Respondent actually paid himself a total of $68,760 ($50,760 + $18,000). Thus, even with the court’s approval of his Third Petition, Respondent took $2,604.87 more than the Court authorized. Bar Counsel Investigation and Overdraft of Attorney Trust Account ¹⁶⁹ On July 20, 2011, Bar Counsel received an overdraft notice dated July 15, 2011 from United Bank concerning Respondent’s Attorney Trust Account. The notice reported that Check Number 1106 in the amount of $125 to Sean Murphy was presented for payment on June 24, 2011 and because there was insufficient funds at the time of presentation, there was an overdraft on the trust account in the amount of (negative) -$141.27.

On July 21, 2011, Assistant Bar Counsel, Dolores O. Ridgell, sent a letter to Respondent requesting his written explanation of the overdraft notice, along with copies of his client ledgers, deposit slips, canceled checks, and monthly bank statements “for the period April 2011 to the present.” On July 30, 2011, Respondent sent a letter in response to Ms. Ridgell’s letter of July 21, 2011, attaching copies of his monthly bank statements, checks, and deposit slips. Respondent stated that upon discovering the overdraft in the account, he immediately drafted a check from his office account in the amount of $175.00, which posted to the escrow account the following business day, June 27, 2011, and that no client was adversely affected. Respondent’s letter did not include copies of his client ledgers. Therefore, on August 9, 2011, Bar Counsel, Glenn M. Grossman, sent a letter requesting copies of Respondent’s client ledgers for March through June 2011.

Subsequently, on August 18, 2011, Respondent sent a letter to Bar Counsel, attaching copies of check stubs, an account ledger with running balances, and client ledgers. Respondent’s own check ledgers represent that on multiple occasions, Respondent maintained a negative balance in his Attorney Trust Account. Consequently, in September 2011, Bar Counsel informed Respondent that the matter should be docketed and an investigation would be conducted. On September 27, 2011, Bar Counsel served upon United Bank a subpoena commanding the bank to produce Respondent’s Attorney Trust Account records for the time period “January 1, 2010 to the present.” ¹⁷⁰ The bank records of Respondent’s Attorney Trust Account clearly show that from January 2010 to September 2011, Respondent failed to hold and maintain client funds in the client’s trust account.

During the same time period, Respondent also used certain clients’ funds to pay for other clients’ matters. Additionally, Respondent’s client ledgers contained false representations as to withdrawals and deposits regarding his clients’ escrow accounts. Respondent had a contingency fee agreement with his client Lobsang Wangkang in which Respondent was to receive one-third of any settlement he recovered on behalf of the client. On May 18, 2011, Respondent deposited settlement proceeds of $400 in his Attorney Trust Account on behalf of Wangkang.

On June 16, 2011, Respondent disbursed $266.67, two-thirds of the settlement amount, to Wangkang. Although Defendant’s client ledger lists a disbursement of $133.33 for attorney’s fees to the Respondent (one-third of the settlement proceeds), Respondent’s bank records evidence that this disbursement was never actually made. On June 24, 2011, Respondent disbursed Check Number 1006 in the amount of $125 on behalf of Wangkang to Sean Murphy, a process server, leaving only $8.33 remaining in Wangkang’s escrow account ($400-$266.67-$125=$8.33). However, on August 23, 2011, Respondent disbursed another check (Check Number 1120) to Wangkang in the amount of $266.67, using funds deposited in his Attorney Trust Account on behalf of clients Adi ($200) and Haas ($500).

But for the two deposits on behalf of Adi and Haas, Respondent would not have been able to pay Wankang on August 23, 2011. On February 9, 2012, John DeBone met with Respondent and his attorney, Gary A. Stein, Esquire, at Respondent’s office to review Respondent’s trust account and client ledgers. After the meeting, Respondent gave Mr. DeBone, per his request, documents related to the Bowles Estate and to Respondent’s other clients, namely: Lobsang Wangkang, Sharon Strand, Lyuba A. Varticovski, Marcos R. Ardon, Maria E. Parra, including client ledgers and invoices in ¹⁷¹ relation to Respondent’s representation of said clients. Respondent’s client ledgers, invoices, and Attorney Trust Account records showed that Respondent withdrew his fees that he deposited into his trust account prior to earning same.

The documents further showed that Respondent made inaccurate entries in his client ledgers which gave the false impression that he was maintaining an accurate accounting of his client funds. In the case of Strand, Respondent represented in his client ledger that he received from Strand $750 on January 29, 2011 and that he withdrew $750 for attorney’s fees on February 14, 2011. However, the bank records reviewed by John DeBone, dating from January 2010 through August 2011, show that no withdrawals were made on behalf of Strand by Respondent on February 14, 2011 or at any time during this period. Notably, Respondent’s invoice for Strand stated that on January 31, 2011, he earned $141 to review case materials and to prepare the case file, leaving an unearned trust balance of $609 ($750 - $141) to be maintained in his Attorney Trust Account on behalf of Strand.

However, as of February 1, 2011, the Respondent maintained a total Attorney Trust Account balance of only $480.17, an amount below that required to be maintained on behalf of Strand. Similar misrepresentations were made by Respondent in his client ledgers for Varticovski, Ardon, and Parra. In all three cases, Respondent stated that certain amounts were received and disbursed in his client ledgers, when, in fact, they were not. At trial, Respondent testified that these contemporaneous client ledgers, which he submitted to bar counsel, and which indicate that he withdrew funds from the escrow account as and for attorney’s fees, were in fact false.

Also, in all three cases, Respondent failed to maintain and hold in trust unearned fees in his Attorney Trust Account on behalf of Varticovski, Ardon, and Parra. Conclusions of Law ¹⁷² Respondent has been charged with violating Maryland Rules of Professional Conduct 1.15, 3.3, and 8.4. This Court finds that Respondent violated Maryland Rules of Professional Conduct 1.15(a), 3.3(a)(1), and 8.4(a), 8.4(c), and 8.4(d). It is undisputed that Respondent misappropriated funds belonging to the Bowles Estate.

There is no dispute that Respondent took over $34,000 in personal representative commission and attorney’s fees without authority from the court or consent of interested parties. It is also undisputed that in all nine accounts that Respondent signed under oath and submitted to the court, Respondent knowingly fabricated or omitted information, including wrong dates, check numbers, amounts on checks, names of payees, and descriptions of payments from the Bowles estate account, failing to disclose all the disbursements he made to himself from the Bowles escrow account. Finally, it is undisputed that Respondent failed to hold and maintain in trust funds of clients at all times from January 2010 through September 2011, and Respondent used other clients’ funds to pay certain other clients. MRPC 1.15; Md. Rule 16-609; Md. Bus.

Occ. & Prof. Code Ann. § 10-306 (Safekeeping Property and Misuse of Trust Money) MRPC Rule 1.15(a) provides in part: (a) 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. Other property shall be identified specifically as such and appropriately safeguarded, and records of its receipt and distribution shall be created and maintained---- MRPC Rule 1.15(c) provides: (c) Unless the client gives informed consent, confirmed in writing, to a different arrangement, a lawyer shall deposit legal fees and expenses that have been paid in advance ¹⁷³ into a client trust account and may withdraw those funds for the lawyer’s own benefit only as fees are earned or expenses incurred.

Attorney Trust Account There is clear and convincing evidence that Respondent violated MRPC 1.15 by using certain client’s funds being held in the attorney trust account to pay other clients and subsequently causing an overdraft of the attorney trust account. In doing so, Respondent also violated Maryland Rule 16-609(a), which states, “An attorney or law firm may not borrow or pledge any funds required by the Rules in this Chapter to be deposited in an attorney trust account ... or use any funds for any unauthorized purpose.” Additionally, pursuant to Maryland Rule 16-609(c), “[n]o funds from an attorney trust account shall be disbursed if the disbursement would create a negative balance with regard to an individual client matter or all client matters in the aggregate.” Respondent’s conduct further violates Maryland Code Annotated, Business Occupations and Professions § 10-306 which states that “[a] lawyer may not use trust money for any purpose other than the purpose for which the trust money is entrusted to the lawyer.” Respondent’s use of client funds to pay other clients was clearly a misuse of the money Respondent was holding in trust for his clients. The facts demonstrate that this was a regular practice of Respondent. For example, as detailed in the facts above, in August 2011, Respondent paid his client Wankang $266.67 using funds deposited on behalf of two other clients.

But for these deposits, Respondent would not have been able to pay Wankang. Eventually, Respondent’s practice caused an overdraft in his trust account, in violation of bringing Respondent’s conduct to the attention of Bar Counsel. Documentation provided to Bar Counsel by Respondent showed that his attorney trust account continually maintained a negative balance. Respondent admitted that client ledgers he had submitted to Bar Counsel indicating that he was properly maintaining his client’s funds and ¹⁷⁴ maintaining an accurate account of said funds were false.

Although Respondent testified that he corrected the overdraft as soon as he discovered its occurrence, the fact remains that the overdraft did occur, and that Respondent regularly used client’s funds to pay other clients, in violation of MRPC 1.15, Maryland Rule 16-609, and Bus. and Occ. § 10-306. Respondent failed to withdraw funds from his trust account only as he earned them as required by MRPC 1.15(c). For example, as detailed above, Respondent’s invoice for his client Strand indicated that as of January 31, 2011, he had earned $141 of the $750 deposited in the trust account on her behalf, leaving a balance of $609. However, Respondent’s total attorney trust account balance as of February 1, 2011 totaled $480.17, $128.83 less than the amount he was required to maintain on behalf of Strand, evidencing that Respondent withdrew Strand’s funds prior to earning the same in violation of MRPC 1.15.

Moreover, in the case of several clients, Respondent also failed to promptly withdraw funds as he became entitled to them as required by Maryland Rule 16 — 609(b)(2). Respondent represented in his client ledger for Strand that he withdrew $750 for attorney’s fees on February 14, 2011. However, Respondent failed to make any withdrawals from his trust account on Strand’s behalf on February 14, 2011 or at any time from February 2011 through August 2011. Respondent followed the same course of conduct with his other clients as well, namely: Wankang, Varticovski, Ardon, and Parra, in violation of Maryland Rule 16 — 609(b)(2).

For these reasons, this Court finds by clear and convincing evidence that Respondent violated Rule 1.15 by failing to appropriately safeguard his client’s money and failing to appropriately maintain his client’s funds in his attorney trust account. Bowles escrow account There is clear and convincing evidence that Respondent violated MRPC 1.15(a) by misappropriating funds in the ¹⁷⁵ Bowles escrow account. Respondent did so by issuing numerous checks to himself from the Bowles Estate, enumerated in the facts above, prior to authorization from the court or approval by interested parties. It is undisputed that Respondent knowingly took over $34,000 from the Bowles Estate from November 2005 through February 2009 beyond what had been approved by the Orphans’ Court for him to take as personal representative commission and attorney’s fees.

Even assuming arguendo, that Respondent was approved, nunc pro tunc, by the three Orders of the Orphans’ Court approving Respondent’s Petitions for the earlier disbursements he made to himself in the total amount of $66,155.13, Respondent actually took a total of $68,760 as commission and fees, thereby taking an additional $2,604.87 over what the Court had authorized him to take as commission as fees. Thus, in either case, Respondent misappropriated funds from the Bowles escrow account in violation of MRPC 1.15(a). Respondent’s use of the Bowles escrow account funds for such an unauthorized purpose is also a violation of Maryland Rule 16-609 and Maryland Code Annotated, Business Occupations and Professions § 10-306. Respondent testified that it was his understanding that he could petition the court for fees only when the case was completed.

Respondent also testified that he had the false impression that he could not call the Register of Wills and get information about petitioning for fees. However, Respondent presented no evidence demonstrating any attempts to contact the Register of Wills to see if a clerk was able to provide information or that he contacted one of his many colleagues to gain information about obtaining commission and fees as successor personal representative. Furthermore, despite his assertion that he believed he could not file a petition prior the conclusion of the case, Respondent did file two petitions prior to filing his Third and Final Petition. For the reasons