Attorney Grievance Commission v. Mba-Jonas

BELL, C.J. Bar counsel, acting on behalf, and with the approval, of the petitioner, the Attorney Grievance Commission of Maryland, filed in this Court, pursuant to Maryland Rule 16-751, 1 a Petition For Disciplinary or Remedial Action charging the respondent, Victor Mba-Jonas, with violating Rules 1.15, Safekeeping Property, 2 8.1, Bar Admission and Disciplinary Matters, 3 and 8.4, Misconduct, 4 of the Maryland Rules of pro ⁶⁹³ fessional Conduct, as adopted by Maryland Rule 16-812, Maryland Rules 16-604, Trust Account-Required Deposits, 5 16-607, Commingling of Funds, 6 and 16-609, Prohibited Transactions, ⁶⁹⁴ 7 all pertaining to his attorney trust account, and Maryland Code (2000, 2004 RepLVol., 2006 Supp.) §§ 10-304, Deposit of trust money, 8 10-306, Misuse of trust money, 9 and 10-307, Disciplinary action, 10 of the Business Occupations and Professions Article. We referred the case, pursuant to Rules 16-752(a), 11 to the Honorable Maureen Lamasney, of the Circuit Court for Prince ⁶⁹⁵ George’s County, for hearing pursuant to Rule 16-757(e). 12 After a hearing, at which the respondent was represented by counsel, the court found the following facts by clear and convincing evidence. “During the investigation of a complaint made by a client of the respondent, Hastings Newbury, Bar Counsel determined that the escrow account of the respondent did not include any record of the disbursement of his own fee as part of the settlement in the Newbury case. “On March 8, 2004, the respondent entered into a Conditional Diversion Agreement with the Attorney Grievance Commission ..... “Pursuant to the Diversion Agreement, respondent obtained a monitor, who made a written report to the Commission in a letter dated June 24, 2004. The report involved four cases, which the respondent settled and in which funds were dispersed to clients. Additional irregularities were detected in three cases: those involving Davis Ebo, Anthony Ebo, and Yawa Doghboe.

Ultimately, in a letter dated May 20, 2005, the Attorney Grievance Commission revoked the Conditional Diversion Agreement. “In the case of Davis Ebo, Respondent settled the case for $5,500. Mr Ebo received $2,616.00, a medical provider received $1,000.00, and the respondent’s fee was $1,933.33. The disbursement left a shortfall of $49.33. In the case of Anthony Ebo, the matter was settled for $5,500.00.

At the conclu ⁶⁹⁶ sion of the disbursement, $50.00 was left from the settlement that was not disbursed. Neither figure matches the settlement, sheets or the monitor’s report. Yawa Doghboe[ ] received a $7,000.00 settlement and $2,125.00 is unaccounted. There is no record that it was ever deposited in the escrow account. “After reviewing the four cases included in the monitor’s report, the investigator obtained the bank records of the respondent’s escrow account and further irregularities were found.

On three occasions, from June of 2003 until June of 2004, the account was overdrawn. First, on June 9, 2003, a deposit of a $2,286.00 check from State Farm was made. The payee was State Farm and under the column labeled ‘description’ was the name Felisha Ikpeama. A $100.00 deposit occurred on that day.

On June 13, 2003, a check payable to Hillary Ikpeama as settlement of an accident in the amount of $4,490.00 was deducted from the account. This caused the account to have a negative balance of $431.26. A cash deposit of $300.00 was made: the account was still negative in the amount of $131.26. Two overdraft fees in the amount of $30.00 took the account to a negative balance of $191.26 on June 16, 2003. “On June 23, 2003, a deposit from M[AIF] Insurance [on] behalf of another client, Monico Navaro, was made in the amount of $1,000.00.

The account balance was then $808.78. Obviously, the settlement meant only for Monico Navaro was used for other purposes. “Secondly, on August 21, 2003, another client, Chile Mwaiwu, received a check from the respondent for $2,466.80 as settlement of his claim. The check was post dated for August 26, 2003; however, the client presented it for payment immediately. This created a negative balance of $2,308.61. “Finally, on June 29, 2004, the respondent wrote a check for Metro Med & Rehab for $2,000.00 on behalf of client Gerri Belt and dated it the 30th.

The check was presented for payment on the 29th and honored at that time. The account was again in the negative in the amount of $1,234.90. A ⁶⁹⁷ $2,500.00 deposit of insurance proceeds brought the account to $1, 265.10. “Additionally, the respondent also represented Yawa Doghboe in early 2004 and settled his case. The settlement money was not deposited into his escrow account; however, the respondent’s account reflects $4,875.00 in disbursements.

His disbursement sheet reflects $6,595.00. “The respondent testified to the careless nature of the management of his escrow account: he did not reconcile the account monthly, he left TIP’ money in the account to cover fees and he left fees in his escrow account. “Additionally, he maintained inaccurate settlement sheets and kept very few records. When requested, he had to get copies of his escrow account records from the bank to provide to the Commission; he did not keep a ledger and post dated cheek[s] to accommodate clients.” From the foregoing findings of fact, the hearing court concluded that the respondent committed most, but not all, of the charged violations. Reiterating that the respondents’ records “do not reflect the disbursement of his fee,” that some of the funds associated with the Ebos, Doghboe, Mwaiwu and Belt representations “were not used for the persons intended” and that the respondent did not keep, or preserve complete records of his representations, it concluded that Rule 1.15 of the Rules of Professional Conduct and Rules 16-604 and 16-607 were violated. The hearing court also found that the respondent violated Rule 8.4(a).

It did not find any other Rule 8.4 violation, however. It explained: “... [T]he respondent did not have the intent to deceive. The offenses occurred due to sloppiness, not dishonesty. There was no forgery, fraud, lack of candor or attempts to conceal his records or his acts.” Nor did the hearing court conclude that there was a violation of Rule 8.1.

While it acknowledged that “the respondent did not respond as promptly as would have been ideal, he did ⁶⁹⁸ respond.” Indeed, the hearing court “found the respondent to be quite candid and forthcoming.” Accordingly, it concluded that he “did not knowingly fail to respond to a lawful demand for information.” No mention was made by the hearing court of Rule 16-609 or any of the charged statutory violations. It made mitigation findings, as follows: “First, while the respondent’s maintenance of his account was in violation of the Rules of Professional Conduct and clearly he did not maintain it as required, this fact does not reflect an ulterior motive. Clearly, he had no intent to defraud or steal from his clients. In fact, many of his problems resulted from his desire to accommodate his clients and to keep them satisfied with his representation. “In the cases of Davis Ebo and Anthony Ebo, he gave them more in settlement tha[n] previously agreed.

This created inaccurate settlement sheets that resulted in the filing of the complaint by the bar counsel. “He gave Chile Mwaiwu and Hassan Samuser post dated checks to spare them a trip back to his office, the latter resulting in the negative balance of August 21, 2003. “Secondly, during this period of time, the respondent was dealing with extremely distracting family problems. His mother was suffering from a life threatening illness, which eventually took her life. His brother-in-law, who was without insurance, required dialysis. “While his wife was available to help, she and the respondent are the parents of six (6) children and his wife maintained employment as well. “As a result, the respondent was forced to cut back on his practice. He was coping with stress at work and at home. “Lastly and most importantly, the respondent testified without contradiction that he has taken the appropriate remedial actions to maintain his escrow account in accordance with the Rules of Professional Conduct, and that his account is now in order.” ⁶⁹⁹ Only the petitioner has filed exceptions.

It does not challenge or take exception to the hearing court’s findings of fact, only its conclusions of law. Thus, the findings of fact made by the hearing court are established. Rule 16-759(b)(2)(A). 13 See Attorney Grievance Comm’n v. Logan, 390 Md. 313, 319 , 888 A.2d 359, 363 (2005); Attorney Grievance Comm’n v. Hodgson, 396 Md. 1, 6-8 , 912 A.2d 640, 644 (2006). Specifically, the petitioner submits that the hearing court erred in failing to find that the respondent violated Rule 16-609 and § 10-306, both relating to the misuse of the respondent’s trust account.

It argues that the propriety of such findings is patent when “[t]he fact that the Respondent did not keep Monico Navaro’s funds intact, used other client funds to cover post dated checks and the Yawa Dogboe[ 14 ] disbursements, as well as never accounting for $2,125.00 of the Dogboe settlement” is considered. It also disagrees with the conclusion that a Rule 8.1 violation had not been established. In support of this exception, the petitioner relies on the testimony of its investigator, and the inferences it draws from that testimony, with regard to the respondent’s failure to produce, at the investigator’s request, records additional to the settlement sheets, banks statements and cancelled checks the respondent did produce. Maintaining that the investigator’s testimony in this regard is uncontradicted, it asks this Court to sustain the exception.

The petitioner’s final exception relates to the hearing court’s failure to find a violation of Rule 8.4(d). Satisfied, apparently, that the hearing court adequately explained why it did not find a Rule 8.4(c) violation, in addition to the Rule 8.4(a) violation, it asserts that the explanation does not suffice insofar as Rule 8.4(d) is concerned. On the contrary, the petitioner argues, ⁷⁰⁰ the causes of the misconduct found by the hearing court tend to affect, if not implicate, the integrity of the process of administering justice. Thus, it asserts, “[biased on Judge Lamasney’s findings, the Respondent should be found to have violated Maryland Rule of Professional Conduct 8.4(d).” We review de novo the hearing court’s conclusions of law, Rule 16-759(b)(l); 15 Hodgson, 396 Md. at 6-8 , 912 A.2d at 644 ; Attorney Grievance Comm’n v. McLaughlin, 372 Md. 467, 493 , 813 A.2d 1145, 1160 (2002); Attorney Grievance Comm’n v. Joehl, 335 Md. 83, 88 , 642 A.2d 194, 196 (1994) (noting that the ultimate decision as to whether an attorney has engaged in professional misconduct rests with this Court).

Exceptions to conclusions of law will be overruled when, the fact findings not being clearly erroneous, the conclusions are supported by the facts found. Attorney Grievance Comm’n v. Manger, 396 Md. 134, 146-147 , 913 A.2d 1, 8 (2006). As we have seen, the hearing court relied on its findings in the two Ebo matters and the settlements involving Doghboe, Mwaiwu and Belt to conclude that funds intended for their use or benefit “were not used for the persons intended” and, thus, to conclude that the respondent violated Rule of Professional Conduct 1.15 and Rules 16-604 and 16-607. Rule 16-609 prohibits the use of funds deposited in an attorney’s trust account “for any unauthorized purpose.” Similarly, § 10-306 of the Business Professions and Occupations Article proscribes the use of trust money “for any purpose other than the purpose for which the trust money is entrusted to the lawyer.” The misconduct found by the hearing court, the failure to use funds for the benefit of the person intended, is as supportive of a violation of Rule 16-609 and § 10-306 as it is of a violation of the Rules as to which there has been no challenge, if not more so.

We sustain the petitioner’s exception to this conclusion. ⁷⁰¹ With respect to the petitioner’s exception to the failure to find a violation of Rule 8.4(d), that the respondent engaged in conduct prejudicial to the administration of justice, we note that the hearing court was unequivocal that, in addition to certain discrete violations related to his escrow account, including overdrawing his trust account on several occasions, the respondent managed his escrow account “carelessly],” failing to reconcile it monthly, “maintained inaccurate settlement sheets and kept very few records.” In Rheb v. Bar Ass’n of Baltimore City, 186 Md. 200 , 46 A.2d 289, 291 (1946), this Court considered the interpretation of the phrase, “conduct prejudicial to the administration of justice.” We made clear in that case that “ ‘conduct prejudicial to the administration of justice,’ delegates or confirms to the courts the power and duty to consider particular conduct of one who is an officer of the court, in relation to the privileges and duties of a public calling that specially invites complete trust and confidence,” id. at 205 , 46 A.2d at 291 ; see Attorney Grievance Comm’n of Maryland v. Post, 350 Md. 85, 100 , 710 A.2d 935, 942 (1998), and that it should not be given “restricted meaning.” Rheb, 186 Md. at 205 , 46 A.2d at 291 . Thus, “In the last analysis the duty rests upon the courts, and the profession as a whole, to uphold the highest standards of professional conduct and to protect the