Attorney Grievance Commission v. Boehm

Cole, J., delivered the opinion of the Court. Once again we shall try to make indelibly clear that, ordinarily, the sanction for misappropriation of a client’s funds by an attorney is disbarment. Pursuant to the provisions of Maryland Rule BV 9, Bar Counsel filed a petition with us on behalf of the Attorney Grievance Commission seeking disciplinary action against Kenneth Lee Boehm, a member of the Bar of this Court since ⁴⁷⁷ 1970. The misconduct complained of took place while Boehm was acting as attorney for the estate of William Trent Johns during the years 1972 through 1976.

In its petition, Bar Counsel alleged violations of Disciplinary Rules 1-102 (A) (1), (3), (4), (5), and (6); DR 6-101 (A) (1), (2), and (3); DR 7-101 (A) (1), (2), and (3); DR 7-102 (A) (5); and DR 9-102 (A) (1), (2), (B) (1), (2), (3), and (4). 1 The trial ⁴⁷⁸ judge, to whom the matter was referred pursuant to Rule BV 9 (b), found that Boehm had violated DR 1-102 (A) (1), (4) (as to misrepresentation only), and (6); DR 6-101 (A) (2) and (3); DR 7-101 (A) (1), (2), and (3); DR 7-102 (A) (5); and DR 9-102 (A). The trial judge did not conclude that Boehm had violated DR 1-102 (A) (3) as to moral turpitude or (4), as to conduct involving dishonesty, fraud, or deceit. Bar Counsel excepted, contending that the trial judge was clearly in error. For the reasons set out below, we find it unnecessary to decide that issue.

In October, 1972, about one year after Boehm had begun his part time law practice, Daisy Johns retained Boehm to settle her deceased husband’s estate. The estate was to be administered in the District of Columbia and, although Boehm did not belong to the District of Columbia Bar, he planned to rely upon the assistance of the senior partner in his law firm who was such a member. It was Boehm, however, who was ultimately responsible for the handling of the Johns Estate affairs. While acting as estate counsel, Boehm was professionally deficient on a number of occasions.

He failed to inform his client that she had to appear before the Register of Wills to take an oath to perfect her appointment as administratrix. Boehm also failed to inform Mrs. Johns of the need to file an inventory of the decedent’s assets, a statement of money and debts due the decedent, and a timely estate account. In 1974 ⁴⁷⁹ Boehm knowingly misrepresented to Mrs. Johns that he had filed suit on behalf of the estate to collect on an insurance policy and then later discovered that the policy had lapsed due to non-payment of the premiums some time before the decedent’s death. Boehm accepted a promissory note for $5,000 as payment for decedent’s truck.

The buyer made no payments under the note but Boehm never pursued the matter. Boehm failed to establish a separate estate account and commingled estate funds with various other sums in his general escrow account. While these violations of Boehm’s professional responsibility are reprehensible, they do not constitute the basis for our decision. Boehm’s professional misconduct which is of the gravest concern to this Court is his patent misappropriation of estate funds entrusted to his care.

We explain. On December 16, 1972, an auction of the decedent’s business property was held from which $9,663.81 was realized. Boehm deposited this amount into his general escrow account. 2 Although the record below does not contain bank statements that date back to 1972, it is clear that Boehm should have been maintaining a balance in his escrow account in an amount equal to the proceeds of this auction sale minus any estate disbursements. In this regard, from December, 1972, through April, 1974, estate disbursements totalled $2,179.11.

The earliest bank, statement for the escrow account supplied from the record, dated January 31, 1975, indicated that as of January 6, 1975, Boehm’s escrow account was overdrawn. The same bank statement also shows a deposit to the escrow account on January 21, 1975, in the amount of $7,381.36. This amount represents the proceeds from the sale of some North Carolina land that had been included in the Johns Estate. Because the account was overdrawn by $27.05 at the time the deposit was made, the escrow account ⁴⁸⁰ balance as of January 21, 1975, was $7,354.31.

No other deposit was made to the escrow account from January 21, through January 31, 1975. Within those 10 days, Boehm, who was the only person authorized to draw on the escrow account, withdrew $4,175.00. Boehm testified that he could not remember for what purposes these funds were used, though several of the checks drawn on the escrow account were payable to Boehm, himself. Bank statements for the Boehm escrow account dated January 31, 1975, February 28, 1975, and March 31, 1975, indicate the following activity: Date Withdrawals Deposits Balance 01-08-75 $ -27.05 01-21-75 $7,381.36 7.354.31 $ 500.00 01-22-75 6.854.31 1.500.00 01-24-75 5.354.31 975.00 01-27-75 4.379.31 100.00 01-29-75 4.279.31 1.100.00 01- 30-75 3.179.31 108.00 02- 03-75 3.071.31 150.00 02-05-75 ** 80.00 3.001.31 4.50 02-06-75 2,996.81 408.24 02-10-75 2.588.57 375.00 02-12-75 75.00 2.288.57 5.00 02-14-75 2.283.57 200.00 02-18-75 2.083.57 100.00 02-19-75 1.983.57 771.67 02-24-75 ** 2,359.50 3.571.40 921.00 02-25-75 2.650.40 1,858.97 02-26-75 2,858.47 3,649.90 1,345.33 02- 28-75 2.054.57 1,125.00 03- 03-75 929.57