Attorney Grievance Commission v. Milliken

⁴⁸⁸ RAKER, Judge. Acting through Bar Counsel, the Attorney Grievance Commission filed two petitions for disciplinary action against Herschel D. Milliken for violations of the Rules of Professional Conduct. On February 14, 1996, this Court consolidated the two petitions. We referred the matter, pursuant to Maryland Rule BV9 (b) 1 to Judge Carol E. Smith of the Circuit Court for Baltimore City to make findings of fact and conclusions of law.

Following an evidentiary hearing and oral argument involving ten separate complaints, Judge Smith found evidence sufficient to sustain nine of the ten complaints. Judge Smith found that Milliken had repeatedly violated Rules 1.1, 2 1.3, 3 1.4, 4 1.15(a), (b), 5 1.16(d), 6 3.2, 7 5.3(b), 8 5.4(a), 9 8.1, 10 8.4, 11 of the ⁴⁹⁰ Maryland Rules of Professional Conduct, and Maryland Rules BU7(a) 12 and BU9. 13 We set forth those findings and conclusions as follows: FINDINGS OF FACTS AND CONCLUSIONS OF LAW Introduction “Herschel D. Milliken, Esquire is the subject of two Petitions for Disciplinary Action filed by the Attorney Grievance Commission (“AGC”) of Maryland pursuant to Maryland Rule BV9. Bar Counsel, acting on the direction of the Review Board and pursuant to Maryland Rule BV7, filed charges against the Respondent pertaining to eight separate Complaints received by the Review Board. The charges related to each Complaint were set forth in the Petition for Disciplinary Action, case number 96022071.

On January 18, 1996, the Court of Appeals ordered that the charges be transmitted to the Circuit Court for Baltimore City for service and hearing in accordance with Maryland Rule BV9. On February 13, 1996, Bar Counsel, again acting on the direction of the Review Board, filed a second set of charges against Respondent Milliken pertaining to two Complaints by former clients. The charges related to these two Complaints were set out in the second Petition for ⁴⁹¹ Disciplinary Action, Case number 96053040. On February 14, 1996, the Court of Appeals ordered that these new charges be transmitted to the Circuit Court for Baltimore City, and further ordered that the Petitioner’s Motion for Consolidation of these two matters for a hearing of charges be granted. “The charges in both Petitions allege that the Respondent engaged in misconduct, defined by Maryland Rule BVl(k) as “an act or omission by an attorney, individually or in concert with any other person or persons which violates the Maryland Rules of Professional Conduct, as adopted by Rule 1230, whether or not the act or omission occurred in the course of an attorney-client relationship.” The hearings on both Petitions for Disciplinary Action were held before the undersigned judge, and took place over the course of several days in April and May, 1996.

Raymond Hein, Assistant Bar Counsel, represented the Petitioner, Attorney Grievance Commission of Maryland. Herschel D. Milliken, the Respondent, proceeded pro se. In support of its allegations, Petitioner’s counsel entered nineteen exhibits into evidence. Standard of Proof “Maryland Rule BVlO(d) provides that the hearing of charges is governed by the same rules of law, evidence, and procedure as in civil proceedings in equity.

Consequently, factual findings shall be supported by clear and convincing evidence. In contrast, an attorney establishing a defense, including mitigating circumstances, need only prove factual matters by a preponderance of the evidence. Attorney Grievance Commission v. Bakas, 322 Md. 603 , 589 A.2d 52 , modified, 323 Md. 395 , 593 A.2d 1087 (1991). Background “At the hearings before this Court in April and May, 1996, the following facts were established by clear and convincing evidence. “The Respondent attended the University of Baltimore School of Law, and obtained his Juris Doctor degree in ⁴⁹² 1979.

Mr. Milliken was admitted to practice in Maryland in September 1981. Except for one year when he worked for the firm of Singleton, DeShiell & Robinson, Milliken has historically engaged in the general practice of law as a sole practitioner. The Respondent has always practiced law in Baltimore City, and currently maintains a law office in his home at 1509 East 36th Street, Baltimore, Maryland. I. Complaint of Tonya L. Steward (Dorsey) “As a preliminary matter before this Court, Petitioner requested that Mr. Milliken stipulate to the submission of the IPT of Ms. Dorsey because she had moved from her last known address, and the Petitioner was unable to locate her.

The Respondent refused to stipulate to this witness’ testimony and stated that he was interested in conducting a cross-examination of Ms. Dorsey on certain matters. The Respondent had an opportunity to cross-examine Ms. Dorsey at the IPH on March 21,1994. The Respondent also stated that he wished to see if the witness would recant her testimony. The Respondent further suggested that Petitioner’s Counsel had not satisfactorily proven Ms. Dorsey’s unavailability as defined by Maryland Rule 5-804(a). “Finding that Ms. Dorsey was absent from the hearing and that Bar Counsel had made reasonable, albeit unsuccessful, attempts to procure her attendance through the issuance of subpoenas at her last known address, this Court declared Ms. Dorsey to be “unavailable” in accordance with Maryland Rule 5-804.

Due to Mr. Milliken’s prior opportunity to cross-examine Ms. Dorsey, this Court held that Ms. Dorsey’s former testimony at the IPH was admissible under the standards set forth in Maryland Rule 5-804. “At the April 16, 1996 hearing before this Court, the Petitioner introduced evidence and testimony obtained through its investigation of this Complaint and established the following facts. Tonya Dorsey met Respondent in May, 1993, and hired him to represent her in a divorce case. A fee was agreed upon at that time. Although there was a discrepancy between Ms. Dorsey’s testimony that the Re ⁴⁹³ spondent wanted $700.00 and Respondent’s testimony at the Circuit Court hearing that his standard fee in such a matter was $350.00, it is clear from the evidence that Ms. Dorsey wrote a check on May 5, 1993, to Herschel D. Milliken payable in the amount of $200.00 as partial payment of his fee for representation.

There was no written retainer agreement and she did not receive any correspondence either during, or after the period in which the Respondent was supposed to be representing her. “Ms. Dorsey’s case had already been filed and a hearing was scheduled for June 4,1993. “The Respondent accepted and kept the $200.00 paid to him by Ms. Dorsey despite the fact that he never performed any work beyond conducting the initial interview. He never reviewed the court file to check the status of Ms. Dorsey’s case. He conceded that he had no justification for keeping Ms. Dorsey’s $200.00 payment and he did not deposit her check in a trust account. Instead, he cashed it immediately.

Curiously, Respondent noted his trust account number on the back of the check. However, this was done to identify him as a person who maintained an account with the bank in order that the bank would cash the check, and not for the purpose of placing it in the trust account. “In fact, Mr. Milliken admitted that he tried to liquidate checks as soon as possible. It appears from his testimony that generally checks were either cashed immediately or placed directly in his operating account. “Mr. Milliken testified several times over the course of the hearing that it was his policy to be paid in full before appearing in court or performing any work. Indeed, he suggested in this particular instance that he did not show up because he had not been paid the balance.

Both the Respondent and Ms. Dorsey agreed that her case already had been filed and a trial was scheduled for June 4, 1993. Although she left several messages on the Respondent’s answering machine, Ms. Dorsey was unable to reach him to discuss her divorce and the balance of the fee. After paying Mr. Milliken the $200.00 retainer, she was not contacted by ⁴⁹⁴ him until June 3, 1993, the day before her hearing. During this phone conversation, the Respondent instructed Ms. Dorsey to meet him in court the next day with the balance of his fee.

However, the Respondent failed to appear the next day for Ms. Dorsey’s hearing. Ms. Dorsey was forced to proceed without an attorney. The Respondent telephoned Ms. Dorsey on June 5, 1993 to apologize for his behavior and promised to refund the money she had paid. However, no refund was ever made. “In light of the clear and convincing evidence as set forth above, this Court finds that the Respondent violated Maryland Rule 1.1 of the Rules of Professional Conduct which provides that “a lawyer shall provide competent representation to a client” and Maryland Rule 1.3 which requires that an attorney act “with reasonable diligence and promptness in representing a client.” Mr. Milliken’s failure to contact his client, to review her file and prepare her case, and to appear in court are clear violations of these rules.

Further, the Respondent’s lack of communication with Ms. Dorsey, which was evidenced by his neglecting to send her correspondence, failing to respond to her phone messages and/or failing to contact her by telephonic or other means of communication to inform and prepare her for trial violates Maryland Rule 1.4(a) which obligates a lawyer to “keep a client reasonably informed about the status of the matter and promptly comply with reasonable requests for information.” Finally, according to Maryland Rule 1.16(d), Mr. Milliken had a duty to “take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, ... surrendering papers and property to which the client is entitled and refunding any advance payment of the fee that has not been earned.” In dereliction of this duty Milliken never formally terminated his representation, nor did he surrender all documents and property to this client or refund the $200 of Ms. Dorsey’s money that he admitted he did not earn. “Although the Respondent stated, presumably by way of defense or mitigation, that this and other client files were ⁴⁹⁵ destroyed in office fires, he failed to produce any evidence to show that such fires ever occurred. Throughout the proceedings before this Court, the Respondent referred to fires allegedly taking place at his offices at 2901 Druid Park Drive. In response to inquiries concerning his lack of documentation and inability to produce files, Mr. Milliken asserted that his paperwork and files were destroyed in these fires. However, Mr. Milliken was unable to produce even a scintilla of evidence that these fires actually occurred despite the fact that he had ample opportunity to do so for several years during the investigation process and again over the course of the hearings before this Court.

In fact, the Respondent could not provide this Court with even dates certain as to when the fires took place. To the contrary, John Reburn an investigator for the AGC contacted Mr. Milliken at his home on October 10, 1993 and requested Ms. Dorsey’s files and records. Mr. Milliken’s law office had closed sometime in August or September, 1993. Originally, Mr. Milliken shared space in Suite 110A at 2901 Druid Park Drive with a cleaning service.

He later moved to Suite 302 -with George Davis and another attorney. Mr. Milliken told Reburn that his records and files were still at the Druid Park complex. Reburn advised him to retrieve them. Mr. Milliken never did so.

Another AGC investigator wrote to Morris lies, the CEO for the Druid Park office complex regarding Mr. Milliken’s files. Iles’s written response of May 13,1994 advised that Mr. Milliken left five (5) boxes of papers and two (2) to four (4) file cabinets when he defaulted on his lease and vacated Suite 302. An additional sixteen (16) boxes of papers were removed from the offices and stored by the landlord. Mr. Milliken’s files and papers were among those stored by the landlord in its general purpose storage. “If fires had occurred there surely would be verification available from the City police, and/or fire departments or the landlord.

This Court gave Milliken the opportunity to obtain and provide verification. Whether he chose not to, or could not do so because there is no such verification, the ⁴⁹⁶ result is the same. This Court finds his assertions utterly without support or credibility.

II

Complaint of Thelma Lambert “As a result of the Complaint filed by Thelma Lambert, an AGC investigation was initiated. Although Ms. Lambert was not present at the hearing before this Court, the excerpt of her testimony from the IPH was introduced without objection. The facts revealed by the investigation follow. “Ms. Lambert wanted a deed prepared for her home. After seeing an advertisement in the paper for Maryland Paralegal Associates, Inc. (“MPA”), Ms. Lambert contacted Robert Morgan.

Mr. Morgan is not an attorney. Mr. Morgan agreed to perform the desired services for her upon receipt of her check for the fee. The check was sent in May, 1993. Ms. Lambert then made numerous attempts to reach Mr. Morgan.

Eventually, she received a call from Mr. Morgan who told her that he would take care of the matter. “In July, 1993, Mr. Morgan visited Ms. Lambert’s house with Mr. Milliken. Mr. Morgan asked Ms. Lambert in the presence of Mr. Milliken if there was any other work for him to do. Both Mr. Morgan and the Respondent gave Ms. Lambert their business cards. After promising to take care of the paperwork that day, Mr. Morgan and Mr. Milliken left the house.

Mr. Morgan never completed the work, contacted Ms. Lambert, or refunded her money. “On cross-examination, Ms. Lambert admitted that she did not expect anything from Mr. Milliken nor did he promise to do anything for her. After this contact, Ms. Lambert was unable to reach Mr. Morgan again even though he had cashed a $200 check from her. Mr. Milliken maintained that he had nothing to do with Ms. Lambert. He did not recall handing her his business card and stated that he was only there because he was getting a ride from Mr. Morgan.

The Respondent testified that he went out ⁴⁹⁷ side with Ms. Lambert’s son while Mr. Morgan discussed business. “Bar Counsel urges this Court find that Mr. Milliken violated Maryland Rule of Professional Conduct 5.5 by assisting a person not a member of the Bar with the unauthorized practice of law. Bar Counsel was unable to establish by clear and convincing evidence a relationship of the nature that would violate this rule. Ms. Lambert was unclear whether Mr. Morgan and Mr. Milliken were working together and Mr. Milliken stated that he was not involved in the case. In fact, on May 2, 1996, Bar Counsel admitted in closing argument that this was the most tenuous of the complaints and asked this Court to find that evidence showing a close working relationship between both men, the carrying of each other’s business card, and Mr. Milliken’s presence at the meeting with Ms. Lambert were enough to demonstrate the alleged misconduct.

This Court declines such an invitation as Bar Counsel was unable to meet its burden of proof of clear and convincing evidence with respect to this Complaint. Since the client herself acknowledged at the IPH that she did not expect anything from Milliken and that he did not promise to do anything for her, this Court finds the evidence utterly insufficient in this instance.

III

Complaint of Shannette Taylor-Hawkins “Evidence was presented at the Circuit Court hearings on April 17 and 18,1996 to establish the following facts regarding the above Complaint. “On October 10, 1991, Ms. Taylor-Hawkins, the Complainant, and her daughter, Charise Nicole Colbert, were passengers in a taxicab that was involved in an accident. Initially, the Complainant hired attorney Nelson Kandel to represent her in a personal injury action. After fifteen months, Ms. Taylor-Hawkins discharged Kandel, and hired Mr. Milliken “to her knowledge.” “Ms. Taylor-Hawkins learned of Mr. Milliken from an acquaintance. During their initial telephone conversation, ⁴⁹⁸ Mr. Milliken told Ms. Taylor-Hawkins to pick up the file from Nelson Kandel’s office and drop it off at MPA with his paralegal, Robert Morgan.

Ms. Taylor-Hawkins believed the Respondent also maintained one of his offices at MPA. When she arrived there, she gave the file to Mr. Morgan. Mr. Milliken was not present. Subsequently, Ms. Taylor-Hawkins called MPA’s office at St. Paul Street several times and spoke to Robert Morgan or his wife.

She also tried to contact the Respondent at his office but always spoke with an individual named Ina. She found that the “462” number (Druid Park, the location of Mr. Milliken’s office), was eventually disconnected. The only contact she had regarding her case was with Mr. Morgan with whom she met one time. He told her “they” were working on the file. “Mr. Milliken explained that Ms. Taylor-Hawkins knew she could reach him through a mutual friend named Margo.

He testified that his role was to determine whether she had a case. He determined that she did not, and he informed her of his conclusion by phone. He believed that to be a sufficient communication and therefore did not send any written correspondence. When asked for verification of his actions, Mr. Milliken stated that he had no files or records because “he did not record incidents of that nature.” He testified that he did not maintain records because he never accepted money from her, and therefore, did not view her as a client. “Finally, although Mr. Milliken testified that he made his relationship with MPA clear to her, Ms. Taylor-Hawkins did not understand the distinction between a lawyer and a paralegal.

In the Answers to Requests for Admissions, the Respondent addressed Mr. Morgan’s involvement with Ms. Taylor-Hawkins’ file. Mr. Milliken admitted that he asked Mr. Morgan to “take a look into the file and see just what was in it and what would I need—what, if anything, I might need.” Mr. Milliken stated that he took the file for his own review, but after deciding that he did not want the case, he returned it to Robert Morgan. ⁴⁹⁹ “Bar Counsel demonstrated through clear and convincing evidence that the Respondent violated several Maryland Rules of Professional Conduct in the course of his representation of Ms. Taylor-Hawkins. In this situation Mr. Milliken essentially left Ms. Taylor-Hawkins dangling. Though he did not understand that she was his client, from the moment that he agreed to review her case and directed her to deliver her file to his paralegal associate, Mr. Milliken was bound by the Maryland Rules of Professional Conduct in handling this matter.

Although Mr. Milliken asserted that he did review the file and advised Ms. Taylor-Hawkins by phone that she had no case, he did not memorialize the conversation in any fashion. He did not notify her in writing. He did not make or keep a file of any kind. He did not even make any notes regarding his evaluation of the case or any conversation with her.

Indeed, he attempted to justify the failure to make or maintain records on the rather astounding basis that because he never accepted money from her, he did not view her as a client. By contrast, Ms. Taylor-Hawkins was quite convincing in explaining that after their one (and only) telephone conversation, she never heard from Mr. Milliken again. He failed to return any of her numerous phone calls, and after his office phone was disconnected, he never provided her with information regarding how she could get in touch with him. Such inaction by Mr. Milliken clearly fails to comply with Rule 1.1 which requires a lawyer to provide competent representation and necessitates thoroughness and preparation reasonably necessary for the representation.

Further, Mr. Milliken’s inaction and inattentiveness, as noted above likewise fails to satisfy Rule 1.3 which obligates a lawyer to act with reasonable diligence and promptness in representing a client. “By failing to contact, communicate with, or respond to his client’s requests Mr. Milliken failed to comply with Rule 1.4(a). It obligated him to keep her reasonably informed about the status of the matter and promptly comply with reasonable requests for information. In startling contrast ⁵⁰⁰ to this important duty, Mr. Milliken did nothing to respond to, or communicate with his client. “Rule 1.16(d) obligates a lawyer to surrender papers and property to which the client is entitled. Since the file that was obtained from Nelson Kandel and turned over to Robert Morgan at Mr. Millikeris direction for delivery to, and review by Mr. Milliken was somehow lost and never returned to Ms. Taylor-Hawkins after review by Mr. Milliken, he has also violated Rule 1.16(d). “Finally, in the context presented, having directed the client to deliver her file to Robert Morgan to do some type of work, and subsequently directing Mr. Morgan to return the file to the client, Mr. Milliken had supervisory responsibility under Rule 5.3(b) over Mr. Morgan and his possession and disposition of the file.

Mr. Milliken’s responsibility to supervise the activities of such non-lawyer assistants obligated him to make reasonable efforts to ensure that Mr. Morgan’s conduct was compatible with the lawyer’s professional obligations in this case, including the responsibility to return the file or take other reasonable steps to make certain that the client knew what happened to the file. Ms. Taylor-Hawkins’ file was never returned to her. Neither Mr. Milliken nor Mr. Morgan had any explanation for what happened to the file. Such shoulder shrugging hardly suffices to satisfy the mandate of Rule 5.3(b).

IV

Complaint of Bar Counsel “The Complaint filed by Bar Counsel in this matter concerns the Respondent’s representation of Charles Clark in a Post Conviction proceeding before the Honorable Marvin Steinberg. The matter was first brought to the attention of Bar Counsel by Judge Steinberg after the Respondent missed two scheduled pre-hearing conferences. “Mr. Milliken readily admitted that he misnoted the date of the original conference and failed to appear for a rescheduled conference because he had not checked his messages to learn of the new date. Mr. Milliken also admitted that he ⁵⁰¹ did not respond to two letters from Bar Counsel relating to these events. “The asserted “misnoting” of the first scheduled conference might be credible and even excusable as inadvertent clerical error if Respondent had not also, in connection with this same client matter, failed to appear for a subsequently rescheduled conference about which ample notice was given, or if he had responded, as required, to Bar Counsel’s two letters relating to these events. Failing to check messages in the context presented can in no way suffice to justify the second failure to appear for a scheduled court conference.

At a minimum both Judge Steinberg and his client had the right to expect Mr. Milliken’s attendance, or to receive the courtesy of some reasonable notice or explanation for nonappearance if not reasonably before, then surely promptly after the fact(s) of his non-appearance. Mr. Milliken appears simply to have ignored the matters in the hope they would, as often colloquially expressed, “go away.” Based upon Respondent’s own admissions, this Court finds by clear and convincing evidence, that the Respondent violated Maryland Rules 1.3, 3.2, and 8.4(d). By failing to attend the conferences, it is clear that the Respondent did not “act with reasonable diligence and promptness in representing a client.” In addition, Maryland Rule 3.2 requires that an attorney “make reasonable efforts to expedite litigation.” Respondent’s repeated absence from the conferences made compliance with this Rule impossible. These absences also indicate that the Respondent “engage[d] in conduct that [was] prejudicial to the administration of justice,” which is prohibited by Maryland Rule 8.4(d). “Lastly, Respondent’s failure to respond to Bar Counsel’s letters was in dereliction of his duty under Maryland Rule 8.1(b) which requires that Respondent “shall not ... knowingly fail to respond to a demand for information from an admissions or disciplinary authority____” F. Complaint of Bar Counsel “The second Complaint filed by Bar Counsel concerns Mr. Milliken’s handling of his attorney trust account from 1992- ⁵⁰² 1993.

During the course of this investigation, several violations of the Maryland BU Rules, governing attorney trust accounts were discovered. “The evidence introduced at the hearing consisted of Nations Bank statements (Exhibit 7), a summary “Review of Escrow Account Records” prepared by AGC Investigator John Reburn in April 1994 at the request of Assistant Bar Counsel Walter D. Murphy (Exhibit 8), a spreadsheet illustrating the monthly activity of the Respondent’s attorney trust account for the period of January, 1987—September, 1993 (Exhibit 9) and 1992 Nations Bank statements (Exhibit 10). “The evidence indicated that from 1986-1991, the activity related to Mr. Milliken’s attorney trust account was in the normal range; there was nothing unusual about his method of disbursements. There was consistently a running balance at the end of each month of approximately $20,000 or more. However, in 1992, there was a significant change in the way the Respondent disbursed funds from the attorney trust account. Interestingly, this change in attorney trust account activity coincided with the Bank’s unsatisfactory closeout of Mr. Milliken’s general account in June, 1992 after three months of overdrafts. “After Mr. Milliken’s general account was closed, he regularly deposited funds into his attorney trust account and immediately wrote counterchecks payable to cash.

He also issued regular escrow checks payable to cash. As a result, the funds in the attorney trust account dwindled significantly. Mr. Milliken began drawing down on the accumulated funds in the attorney trust account. All these transactions and balances are reflected in the exhibits introduced at the hearing. “In addition to writing checks payable to “cash,” the Respondent made cash disbursements to some of his clients from the trust account.

He also stated that he would cash checks for clients as an accommodation because some of his clients did not have bank accounts. On August 4, 1992 Respondent received a check for $3,000.00 from the MTA in ⁵⁰³ settlement of a case he was handling for Theola Moore. He deposited the total amount into his escrow account, and then wrote and cashed a countercheck for $3,000.00 payable to cash. At the end of August Respondent received a check for $4,000.00 from Continental Loss Adjusting in settlement of a claim he was handling for Norma Williams.

On September 15, 1992 he deposited the $4,000.00 check in his escrow account, and then wrote and cashed a countercheck for $4,000.00 payable to cash. On September 16, 1992, Respondent received a check for $2,250.00 ■ from MAIF in settlement of a claim he was handling for Wylie Cator. On that same date he wrote and cashed a countercheck for the full amount payable to cash. An especially intriguing series of escrow account transactions by Mr. Milliken was evident in his handling of $6,000.00 in settlement funds which he received in connection with a case for his client, Sharon Stanley.

On September 23, 1992 he deposited the $6,000.00 into his escrow account. On that same date he issued a check for two-thirds of that amount, i.e, $4,000.00 to his client. However, on September 24, 1992 he wrote a check from escrow for $1,500.00 to his wife, Ruth Milliken and a check for $500.00 payable to cash. Ruth Milliken was not Respondent’s employee.

Mr. Milliken explained that his wife handled the bills for their home and family and that in writing the $1,500.00 to her directly from escrow he was just taking “a short cut.” He had no explanation as to what happened to or who received the $500.00 payable to cash. “Mr. Milliken also accommodated corporate clients by keeping money in the trust account. He claimed that he was in-house counsel, although he was unable to provide any details as to what legal work he performed on behalf of the corporations. “The Respondent testified that he neither put non-client funds into his escrow account, nor did he commingle his funds and other clients’ funds. However, according to his testimony at the IPH, the Respondent acknowledged holding monies for people with whom he had a personal relationship rather than an attorney-client relationship. When ⁵⁰⁴ asked at the Circuit Court hearing to verify his relationship with these entities and his business with them, Mr. Milliken merely responded that he did “whatever legal matters came up.” He produced no records or files, nor any corporate clients or other witnesses to substantiate any such corporate client relationships. “Furthermore, the Respondent allowed fees to accumulate in the attorney trust account, and then drew on those fees in 1992-1993. “Despite all of the above-mentioned activity, the Respondent has no records of any of these transactions, payments, fees, etc. He testified that the only records he kept were on a “simple pad,” which was not produced at the hearing. “The documentary evidence and Respondent’s own admissions discussed above lead to the obvious and inescapable conclusion that Mr. Milliken did violate Rule BU9 by drawing instruments payable to cash on his attorney trust account.

Making cash disbursements or writing counter-checks from the trust account is clearly prohibited. AGO Investigator Reburn’s testimony concerning his review and analysis of Mr. Milliken’s bank records demonstrated that for several years prior to 1992 Mr. Milliken allowed fee income to accumulate in his trust account in violation of Rule BU7. “Further, by his own admission at the IPH, Mr. Milliken deposited and held funds for non-clients. Although he testified before this Court that such individuals and entities were clients, he produced none of these “clients” or other witnesses nor records of any kind to substantiate client relationships as to those individuals and entities. By allowing his own fees to accumulate in escrow and by holding non-clients’ funds in escrow for extended periods with the funds of clients, and by not keeping those funds separate from the property of clients and third persons, he violated Rule 1.15(a) and BU7(a) which prohibit commingling of funds in a trust account. “Maryland Rule BU9 prohibits an attorney from “borrow[ing] or pledg[ing] any funds required by these rules to ⁵⁰⁵ be deposited in an attorney trust account, ..., or us[ing] any funds for any unauthorized purpose.” As previously discussed, Mr. Milliken wrote a check from the trust account directly to his wife for $1,500.00 for maintenance of their household, he wrote checks for cash, and cashed checks from his attorney trust account.

The funds that he removed from the account or neglected to place in the account were appropriately attorney trust account funds and therefore, the Respondent was unauthorized to use the funds in the manner listed above. “The Respondent also had a duty under Maryland Rule 1.15(a) to keep “complete records of such accounts ... [to be] preserved for a period of five years after termination of the representation.” By Respondent’s own admission, he kept no records. In light of his consistent and repeated use of counterchecks and instruments payable to cash, Mr. Milliken’s failure to produce any records himself regarding the trust account is hardly surprising. Keeping track and accounting would be difficult, if not impossible, without some concomitant system of record-keeping correlating such instruments with particular clients, cases, or transactions.

VI

Complaint of Gorman Murphy “Mr. Gorman Murphy was not present at the hearings before this Court. Neither were Ms. Rosaleen Brewer or Ms. Pauleen Williams. However, both women testified before the Inquiry Panel in April and May, 1995. Mr. Murphy never testified.

The facts related to this Complaint were established as follows. “Mr. Murphy and his two sisters, Ms. Brewer and Ms. Williams, went to Mr. Milliken’s office for his assistance in preparing a deed that would convey Mr. Murphy’s property to his grandsons. Although Mr. Murphy said very little during the meeting because of his ill health, it was agreed that the Respondent would prepare both a will and a deed. The will was to be sent to Mr. Murphy’s house and the deed was to be delivered to the sisters’ house. The Respondent testified that he fully explained to the sisters the necessary ⁵⁰⁶ steps to execute the will and the deed properly, and how to take the deed to the land records office and have it recorded and pay the necessary property tax. “Mr. Milliken stated that the sisters were unhappy with the completed deed because they wanted the house to be deeded to them and apparently decided that if the property was not deeded to them, they did not want the work done.

Mr. Milliken testified that he told the sisters he could not do as they wished because it was contrary to the wishes of his client, Mr. Murphy, who was allegedly satisfied with the work. “At the hearing, Bar Counsel introduced a copy of a letter to Mr. Milliken signed by Mr. Murphy, Ms. Brewer, and Ms. Williams. The letter, dated August 1, 1993, indicated that they expected Mr. Milliken to record the deed and send it back to them and, if this was not possible, they expected the return of their money. At that time, the Respondent had not contacted the Complainants for approximately one year since their first meeting. Ms. Brewer and Ms. Williams were unable to contact the Respondent.

He never recorded the deed and they never received a refund. “The Respondent maintained that he did everything they requested of him and more because he gave them a will in addition to the deed. Mr. Milliken was unable to support his contentions as he produced no documents to support his position. Instead, he claims that all relevant documents were destroyed in the alleged office fires. “In light of the facts established by clear and convincing evidence at the hearing, this Court concludes that Mr. Milliken violated Maryland Rules 1.1, 1.3, 1.4(a), (b), and 8.1(b). His failure to record the deed or provide adequate instructions for the Complainants, his dereliction in failing to contact his clients either before or after they wrote him the letter, and his non-existent documentation of work allegedly performed demonstrate that he acted incompetently and without diligence.

Further, he did not keep his client “reasonably informed about the status of his legal