Attorney Grievance Commission v. Kum

BARBERA, C.J. Petitioner, the Attorney Grievance Commission of Maryland (the “Commission”), acting through Bar Counsel, has filed with this Court a Petition for Disciplinary or Remedial Action (“Petition”) against Respondent, Joseph M. Kum. The Petition alleged several violations of the Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) in connection with two matters involving, among other misconduct, the misappropriation of client funds. We designated the Honorable Krystal Q. Alves of the Circuit Court for Prince George’s County (the “hearing judge”) to conduct the hearing, make findings of fact, and draw conclusions of law. Respondent was served with process pursuant to Maryland Rule 16-753. 1 Respondent did not file a response to the Petition, timely or otherwise.

On June 28, 2013, the hearing judge entered a default order against Re-' spondent. Respondent was served with the default order, notice of the initial hearing date, and, upon its postponement, the subsequent hearing date. Respondent did not seek to vacate the order of default. The hearing was held on September 6, 2013.

Respondent did not appear at the hearing. The Commission presented evidence, including the testimony of four witnesses. On Sep ³⁷⁷ tember 18, 2013, the hearing judge issued written findings of fact and conclusions of law in which she concluded, by clear and convincing evidence, that Respondent had violated MLRPC 1.4(a) (communication); MLRPC 1.15(a) and (d) (safekeeping property); MLRPC 1.16(d) (declining or terminating representation); MLRPC 8.1(b) (bar admission and disciplinary matters); MLRPC 8.4(c) and (d) (misconduct); and Maryland Rule 16-607 (commingling of funds). No exceptions were filed.

On September 9, 2014, this Court heard argument, at which only the Commission appeared. The following day, we entered a per curiam order disbarring Respondent. We explain in this opinion the reasons for that action. I. Hearing Judge’s Findings of Fact Based on the evidence accepted at the September 6, 2013 hearing, the hearing judge set forth the following findings of fact, which we summarize.

Respondent has been a member of the bar of this Court since December 18, 1996. Respondent maintained a law office with the firm of Amity, Kum & Suleman (“AKS”) in Prince George’s County, Maryland. As of the date of the hearing, Respondent no longer maintains an office for the practice of law in the State of Maryland. Commingling of Trust Account Funds On May 2, 2011, the Commission received notification of an overdraft on an attorney trust account maintained by Respondent at BB & T Bank, titled “Law Offices of Joseph M. Kum IOLTA Acct.” (“IOLTA Account”).

AKS maintained a separate attorney trust account at M & T Bank, titled “Amity, Kum and Suleman, Attys.” (the “AKS Trust Account”). Respondent’s IOLTA Account, however, was operated solely by him. In a letter dated May 6, 2011, the Commission asked Respondent to provide an explanation for the overdraft, as well as financial records for the IOLTA Account. ³⁷⁸ Respondent replied with a letter dated May 18, 2011, 2 in which he explained that a check for $4,172, deposited in settlement of a client’s personal injury matter, had been returned by the issuing bank due to a missing endorsement. According to Respondent, after he learned of this fact on April 27, 2011, he transferred funds from his general account to cover an IOLTA Account check he had written to a client.

Respondent provided records to show two in-branch transfers on April 27, 2011, from his general account to his IOLTA Account in the amounts of $1,750 and $700, respectively. After obtaining the required endorsement, Respondent redeposited the check into the IOLTA Account. In two letters dated May 23, 2011 and June 29, 2011, the Commission requested verification that Respondent had removed the transferred funds of $1,750 and $700 from his IOLTA Account after he successfully re-deposited the settlement check for $4,172. When Respondent failed to reply to either request, the Commission informed Respondent on July 22, 2011 that it had docketed a complaint against him.

The Commission directed Respondent to provide the Commission with the requested verification. Respondent replied to the Commission’s letter on July 30, 2011. He acknowledged receipt of the docketed complaint and provided documentation that the re-deposited settlement check of $4,172 had cleared on May 3, 2011, but he offered no evidence that he had removed the previously-transferred funds of $1,750 and $700 from his IOLTA Account. Instead, Respondent acknowledged a check for $1,625 that was issued from the IOLTA Account to “ACC Telecom” on April 26, 2011, and he explained that he also made transfers- from his general account to cover that check.

The “ACC Telecom” check contained no notation identifying it as relating to a client matter. ³⁷⁹ Sometime around August 2011, Respondent left the country to travel to Ghana. Jamila Nandule-Cook (“Ms. NanduleCook”), an intern at AKS at the time, testified that Respondent said that he was traveling for business and would return later in the year. Fatai Suleman (“Mr. Suleman”), a member of AKS, testified that Respondent failed to provide any details regarding his business trip or offer any instructions on his clients’ pending legal matters. In a letter dated September 19, 2011, the Commission again asked Respondent for documentation verifying that the previously-transferred checks had been removed from the IOLTA Account, and to explain the issuance of the “ACC Telecom” check.

The Commission gave Respondent until October 6, 2011, to respond. Ms. Nandule-Cook, in contact with Respondent regarding the Commission’s request, asked for two extensions on Respondent’s behalf. On the second occasion, Ms. Nandule-Cook informed the Commission that unavoidable circumstances had postponed Respondent’s return to the United States until November 18, 2011. The Commission granted an extension until December 5, 2011.

Respondent, however, did not respond to the Commission’s request. Respondent evidently had not returned to the United States as of the September 6, 2013 hearing. On March 15, 2012, Respondent was administratively suspended from practicing law in Maryland for the non-payment of his 2011-2012 annual assessment due to the Client Protection Fund of the Bar of Maryland. In May 2012, Mr. Suleman and N. David Etokebe, another member of AKS, took steps to dissolve AKS.

Representation of David Miller In January 2008, David Miller (“Mr. Miller”) and three other individuals retained AKS to represent them in an employment-related harassment claim against the Town of River-dale Park, in Prince George’s County, Maryland. On January 3, 2008, Mr. Miller signed a contingent fee agreement providing for an attorney’s fee of 33.3% of any settlement recovery. Although Mr. Suleman actively participated in the representation of Mr. Miller, Respondent was the initial attorney contact ³⁸⁰ ed by the clients, and he had primary responsibility for the representation. In February 2009, the four clients settled their claims for $200,000, or $50,000 per client, which was deposited into the AKS Trust Account.

Each client received a settlement disposition statement indicating that he would receive a net distribution of $83,350, following the deduction of an attorney’s fee of $16,650 per client. At the time of the settlement, Mr. Miller was incarcerated in North Carolina. Accordingly, he signed a power of attorney authorizing Respondent to receive and hold his settlement proceeds in trust. Instead of maintaining the funds in the AKS Trust Account, Respondent wrote a check from that account for $33,350, made payable to “Law Offices Joseph M. Kum Trust Account,” with a notation that it was for Mr. Miller.

Mr. Miller testified that he received an initial distribution of $3,333 at or about the time the settlement was finalized. Mr. Miller continued to receive from Respondent periodic transfers totaling an additional $6,000. Mr. Miller also authorized Respondent to disburse portions of his settlement proceeds to Donna Williams (“Ms. Williams”), the mother of Mr. Miller’s child. Ms. Williams received three separate payments from Respondent totaling $5,500.

In early November 2011, Mr. Miller was released from incarceration and returned to Maryland. On November 8, 2011, he requested the balance of his settlement proceeds from AKS. Respondent was out of the country at the time, so Mr. Suleman e-mailed Respondent, notifying him that Mr. Miller sought his remaining recovery and requesting that Respondent contact Mr. Miller as soon as possible. On November 14, 2011, Ms. Williams received another wire transfer of $2,000 from Respondent and, on December 12, 2011, received an additional $5,000.

Neither Mr. Miller nor Ms. Williams received any additional disbursements after December 12, 2011, and Mr. Miller had no further contact with Respondent. ³⁸¹ In sum, Mr. Miller received $9,333 and Ms. Williams received $12,500 from Respondent, for a total of $21,833. Respondent never did disburse the remaining $11,517 due to Mr. Miller, nor did Respondent ever respond to Mr. Miller’s request for an accounting of those funds. In February 2012, Mr. Miller filed a complaint against Respondent with the Commission. On March 19, 2012, the Commission wrote to Respondent requesting a response to Mr. Miller’s complaint.

Respondent did not reply to the Commission’s request. The Commission spoke with Judith Kum (“Ms. Kum”), Respondent’s wife, on June 21, 2012. Ms. Kum told the Commission’s investigator that Respondent was still in Ghana, and she did not know when he planned to return.

II

Hearing Judge’s Conclusions of Law The hearing judge concluded, in connection with Respondent’s handling of his IOLTA Account, that he had violated MLRPC 1.15(a) by “failing] to create and maintain records concerning his BB & T trust account in accordance with the Rules in Title 16, Chapter 600 of the Maryland Rules.” The hearing judge concluded that Respondent violated MLRPC 8.1(b) by failing to respond to Bar Counsel’s September 19, 2011 letter, receipt of which he had acknowledged through his intern, Ms. Nandule-Cook. The hearing judge also concluded that, “[w]hen [Respondent] transferred funds in the amounts of $1,750 and $700 from his personal account to his BB & T trust account[,]” he “was depositing personal funds into the account[,]” which, in addition to “his failure to remove such funds promptly and his apparent use of the funds to cover the $1,625 check written to ‘ACC Telecom,’ ” constituted a violation of Maryland Rule 16-607. In connection with Respondent’s representation of Mr. Miller, the hearing judge concluded that Respondent violated MLRPC 1.4(a), because he “did not keep Mr. Miller reasonably informed and failed to comply with Mr. Miller’s reasonable requests for information concerning the status of his trust money after Mr. Miller was released from incarceration in ³⁸² November 2011.” The hearing judge also concluded that, by-failing to respond to Mr. Miller’s request for the balance of the funds that Respondent should have been holding in trust, “Respondent failed to safeguard client funds belonging to Mr. Miller in accordance with MLRPC 1.15(a).” Respondent violated MLRPC 1.15(d) by failing to “deliver[ ] the balance of the funds to which Mr. Miller was entitled and by failing, upon Mr. Miller’s request, to render promptly a full accounting regarding the balance of the settlement proceeds[.]” Furthermore, by traveling to Ghana without “distributing] the