Attorney Grievance Commission v. Levin

Dissenting Opinion by ADKINS, J. This is an odd situation. Respondent’s alleged misconduct occurred in connection with his failure to distribute proceeds of a settlement to his client’s judgment creditor who filed a writ of garnishment. Under the Maryland law, however, the settlement proceeds were not garnishable. Nevertheless, the Majority holds Respondent responsible for violating Rules 1.15(e) and Rule 3.4(c).

Because, as the Majority acknowledges, there was nothing in Respondent’s hands that was subject to garnishment, I would not find Respondent in violation of those two rules. The Writ of Garnishment in this case required Respondent “to hold the property of the judgment Debtor named above subject to further proceedings in this Court.” Under Consolidated Construction Services, Inc. v. Simpson, 372 Md. 434 , 813 A.2d 260 (2002), however, the settlement proceeds that came to Respondent’s possession were not garnishable. The Majority concedes as much: At the time the Writ of Garnishment was issued, Creative was not entitled to a portion of the malpractice claim, because, as a contingent interest, it was not garnishable. Receipt of the funds by Levin pursuant to the settlement months after the Writ of Garnishment was served did not render enforceable a Writ that was unenforceable when issued.

Levin’s agreement to turn over the malpractice ⁴⁶³ funds after the Writ was issued also did not alter the Writ’s unenforceability. Maj. Op. at 458, 69 A.3d at 468-69 (citations omitted). Since the settlement proceeds were not the judgment creditor’s property, were not subject to garnishment, and were not covered by the Writ of Garnishment, I do not see how Respondent could have violated Rules 1.15(e) or 3(4)(c).

Rule 1.15(e) provides: When a lawyer in the course of representing a client is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is resolved. The Majority maintains that “Levin clearly violated Rule 1.15(e) because he knew of the claim filed by Creative.” Maj. Op. at 458, 69 A.3d at 469. I disagree.

Comment 5 to Rule 1.15 provides that “[a] lawyer may have a duty under applicable law to protect ... third-party claims against wrongful interference by the client,” but that duty arises when there is a “lawful” claim against the funds and “when the third-party claim is not frivolous under applicable law.” If that is so, the lawyer indeed “must refuse