Attorney Grievance Commission v. McBurney

Smith, J., delivered the opinion of the Court. We shall here impose the sanction of disbarment upon John J. McBurney (McBurney). McBurney was admitted to the bar of this Court on June 27, 1961. Earlier he had been admitted to practice in the District of Columbia.

Bar Counsel, acting on behalf of the Attorney Grievance Commission, filed a petition with us alleging that McBurney had violated various Disciplinary Rules, including DR 1-102 (A) (4) forbidding a lawyer from “[e]ngag[ing] in conduct involving dishonesty, fraud, deceit, or misrepresentation”; DR 5-104 (A) specifying that a “lawyer shall not enter into a business transaction with a client if they ⁶²⁹ have differing interests therein and if the client expects the lawyer to exercise his professional judgment therein for the protection of the client, unless the client has consented after full disclosure”; DR 9-102 (A) requiring that “[a]ll funds of clients paid to a lawyer..., other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except [certain funds not here involved]”; and DR 9-102 (B) (4) requiring that an attorney “[promptly pay or deliver to the client as requested by a client the funds ... in the possession of the lawyer which the client is entitled to receive.” The matter came on for hearing before a three-judge panel. By reason of certain technical objections the panel did not consider whether McBurney’s conduct violated certain of the Disciplinary Rules. In Attorney Griev. Comm’n v. McBurney, 282 Md. 116 , 383 A. 2d 58 (1978), we remanded the case to the panel to determine whether McBurney did violate the rules noted above.

The panel has now filed an opinion finding that he did violate each of those Disciplinary Rules. It has recommended disbarment. The complaint here grows out of representation by McBurney of Raymond G. Queen (Queen), as the result of a motor vehicle accident. The matter was settled for $6,000 on March 12, 1975, the day set for trial.

Queen was anxious to return to his home in another state. Therefore, at the suggestion of McBurney, he executed a power of attorney to McBurney authorizing him to negotiate the drafts from the two insurance companies involved upon their receipt. It was said that this would expedite ultimate disbursement to Queen. The drafts or checks in settlement were received and deposited by McBurney on March 18 and April 1.

Queen testified that he had assumed it might “be two or three maybe six weeks” before the money was received from the insurance companies. He stated he first contacted McBurney concerning his money about six weeks after March 12. He did not recall whether he talked directly to McBurney or to his secretary but he did recall that he was told that the money ⁶³⁰ had not been received from either insurance company. The next time he called he was told funds had been received from one company, but not the other.

He called a number of times. Finally, he called one insurance company directly. He said he was there advised that the sum in question had been paid quite some time previously. It was suggested to him that he get in touch with the Prince George’s County Bar Association, which he did on June 5, 1975, 1 About a week or two later Queen again called McBurney.

Queen was then told that a check to him had been put in the mail that day. Although McBurney said he maintained an escrow account, the funds from the insurance companies were deposited in his office account, not his escrow account. The