Attorney Grievance Commission v. Mininsohn

BATTAGLIA, J. The Attorney Grievance Commission of Maryland (“Petitioner” or “Bar Counsel”), acting through Bar Counsel and pursuant to Maryland Rule 16-751^), 1 filed a petition for disciplinary or remedial action against respondent, Gary S. Mininsohn, Esquire, on October 23, 2002. The Petition alleged that Mininsohn, who was admitted to the Bar of this Court on June 25, 1975, violated several Maryland Rules of Professional Conduct, specifically 1.3 (Diligence), 2 1.4 (Comm ⁵⁴⁰ unication), 3 1.15 (Safekeeping property), 4 1.5 (Fees), 5 3.4 (Fairness to opposing party and counsel), 6 and 8.4 (Misconduct). 7 Violations of Maryland Rule 16-609 (Prohibited transa ⁵⁴¹ ctions), 8 Maryland Code, Section 10-306 of the Business Occupations and Professions Article (1989, 2000 Repl.Vol.)(“A lawyer may not use trust money for any purpose other than the purpose for which the trust money is entrusted to the lawyer”) and Maryland Code (1988, 1997 Repl Vol., 2003 Cum.Supp.), Sections 10-906 and 13-1007 of the Tax-General Article, requiring employers to withhold, report, and remit to the Comptroller employee income taxes, also are alleged. 9 In accordance with Maryland Rules 16-752(a) and 16-757(c), 10 we ⁵⁴² referred the petition to Judge John H. Tisdale of the Circuit Court for Frederick County for an evidentiary hearing and to make findings of fact and conclusions of law. On March 8 and 9, 2003 and May 28, 2003, Judge Tisdale held hearings and on July 11, 2003, issued a Report and Recommendations in which he found, by clear and convincing evidence, that Mininsohn violated Rules 1.3, 1.5(c), 1.15(a) and (b), 3.4(c), 8.4(a) and (d), Maryland Rule 16-109, Business Occupations and Professions Article, Section 10-306, Tax-General Article, Section 10-906(a), (b), and (c), and Tax-General Article, Section 13-1007(b) and (c). Bar Counsel filed exceptions to the hearing judge’s failure to find violations of Rules 8.4(b) and (c).

Mininsohn filed several exceptions, stating that he did not violate Rule 3.4(c) when he failed to appear in court because of an ice storm and notified the court clerk to that effect, that he did not violate Rule 1.3 because he mistakenly believed that opposing counsel intended to prepare an Order at the direction of the court instead of him, that he did not violate Rule 1.15(b) because he had resolved all outstanding payments he had been required to make on a client’s behalf, and that he did not willfully fail to withhold and pay income tax because the attorney he had hired handled his tax obligations incorrectly. We sustain Bar Counsel’s exceptions and additionally find violations of Rules 8.4(b) and 8.4(c). We overrule Mininsohn’s exceptions. The appropriate sanction is disbarment.

Judge Tisdale’s Findings of Fact and Conclusions of Law follow: Findings of Fact “This action arises out of four separate complaints made to the Commission regarding the conduct of the Respondent. ⁵⁴³ The underlying facts were not highly contested. Based on the testimony, documentary and other evidence, in accordance with the burdens of proof set forth in Rule 16-757(b), this court makes the following findings of fact: “Gary S. Mininsohn was admitted to the Bar of the Court of Appeals of Maryland on June 25, 1975. Since approximately 1978, Respondent has continuously maintained a law office in Rockville, Maryland, primarily practicing as a sole practitioner. B.C. Docket No. 2001-145-16-8 Reuschling Complaint “In November 1998, Respondent engaged the services of Glen F. Reuschling (‘Reuschling’), an accident reconstruction expert.

Respondent hired Reuschling to assist and to testify in connection with Respondent’s representation of a client, Norma Chicas (‘Chicas’), in a vehicular negligence case in Montgomery County. After the trial at which he testified, Reuschling presented Respondent with a bill for his services for $2,557.80. Respondent’s client made an initial payment to Reuschling. “Reuschling testified that he made several demands for payment from Respondent, who informed him that he would have to file suit to collect because he did not intend to pay. Respondent testified that Reuschling’s services were unsatisfactory and contributed to a ruling against his client.

Respondent instructed Reuschling to proceed against his client to collect and assumed that Reuschling reached an agreement with the client. “On April 6, 1999, Reuschling, represented by Mervyn A. Schwedt, Esquire (‘Schwedt’), filed suit against Respondent in the District Court of Maryland for Montgomery County, seeking damages in the outstanding amount billed by Reuschling for his services in the Chicas case. After service of the civil complaint filed by Reuschling, Respondent did not file a Notice of Intention to Defend or otherwise ⁵⁴⁴ respond to the complaint. Respondent also did not appear for trial on July 7,1999. “The District Court entered a default judgment against Respondent for $2,557.80, plus attorney’s fees and costs. Respondent did not file any motion for post-judgment relief, nor did he note an appeal from the judgment entered. “Schwedt testified that in August 1999, he sent Respondent Interrogatories in Aid of Enforcement of Judgment by first class mail and fax.

Schwedt’s testimony is confirmed by his filing of a Notice of Service of Discovery Materials on August 27, 1999. Respondent failed to respond to the interrogatories. “On June 5, 2000, Schwedt initiated further Post-judgment proceedings by filing separate requests for a Writ of Garnishment of Property Other Than Wages and for a Writ of Garnishment on Wages, both directed to ‘Mininsohn & Associates,’ the trade name used by Respondent in his law practice and to Respondent himself. On the same date, Schwedt again requested an Order Directing Defendant to Appear for Examination in Aid of Enforcement of Judgment (Oral). “The District Court issued the two writs for service on Respondent’s law practice and a subpoena requiring Respondent to appear in person on August 23, 2000 ‘to be examined under oath concerning any assets, property or credits’ and ordering Respondent to bring with him records set forth in the request filed by plaintiffs counsel. “On June 29, 2000, a private process server engaged by Schwedt personally served Respondent with the writs and the order directing Respondent to appear for oral examination. While Respondent stipulated that the service of the writs and the order was proper, he claims not to have distinct recollection of service.

Respondent does acknowledge that he was in court on another matter around this time and may have been handed a piece of paper that constituted the writ and order. Respondent believes that he misplaced the writ and the order in a file. ⁵⁴⁵ “Respondent failed to answer either writ or to file a motion asserting a defense or an objection. Respondent failed to appear in court on August 23, 2000. Respondent did not ask for a continuance from the court nor did he inform the court that he would not be available on that date.

On or after August 23, 2000, Respondent received a phone call from Schwedt asking him why he was not in court. “Upon his failure to appear, the District Court issued a Show Cause Order for Contempt directing Respondent to appear personally in court on November 15, 2000. Respondent was personally served with the Show Cause Order on October 6, 2000. Respondent appeared in court on November 15, 2000, but did not bring with him any records responsive to the requests made in conjunction with the previously issued order that he appear for oral examination. The matter was continued until December 20, 2000.

Respondent acknowledged the continuance by signing a document provided by the court. “On December 20, 2000, Respondent again failed to appear in court, although Reuschling and Schwedt were present. Respondent alleges he was unable to appear in court due to inclement weather and that he did call the court to advise that he would not be present. As a result of his failure to appear a body attachment was requested. Although Respondent testified in this proceeding that he called and left a message with the clerk’s office, there is no mention of a call to the court in the written motion to rescind body attachment that Respondent filed on January 5, 2001. “On January 11, 2001, a directive was issued to set the case as a Show Cause for Contempt hearing before Judge Cornelius J. Vaughey, Administrative Judge for District 6 of the District Court of Maryland.

On January 24, 2001, the District Court held a hearing on the pending contempt and body attachment. On that date, Respondent appeared in court, as did Reuschling and Schwedt, now making their fourth court appearance. Judge Vaughey ordered Respondent to produce the requested records on or before March 12, 2001, and identified the documents to be produced on a ⁵⁴⁶ list numbered one through 22 in his own handwriting. Judge Vaughey also wrote ‘failure to produce said documents may cause the defendant [Mininsohn] to be held in contempt of this court.’ Judge Vaughey re-set the case for a status hearing on March 21, 2001, ‘if the documents are not satisfactorily produced.’ A copy of Judge Vaughey’s handwritten list and comments was provided to Respondent on January 24, 2001. “Respondent did not provide Sehwedt with any documents from the list prepared by Judge Vaughey, nor did he communicate any explanation for his failure to respond.

On March 21, 2001, at the status hearing before Judge Vau-ghey, Respondent informed the court that he (Respondent) had filed a petition for bankruptcy earlier that day. Due to the bankruptcy filing, an automatic stay of the proceedings in the District Court of Maryland was entered. “The bankruptcy court denied Respondent a discharge of his debt to Reuschling, i.e., the money judgment entered July 7, 1999 by the District Court of Maryland. The post-judgment proceedings in the District Court of Maryland thereafter were reopened upon Reuschling’s request. “When this disciplinary matter was initially before this court for a hearing on April 8 and 9, 2003, the judgment entered against Respondent remained unsatisfied. When the parties returned to conclude the hearing on May 28, 2003, Respondent’s counsel introduced an order of satisfaction indicating Respondent had satisfied the judgment debt to Reuschling in the interim. “Respondent admitted that as an officer of the court, he has an obligation to comply with court orders, whether representing a client or acting on his own behalf.

B.C. Docket No. 2001-215-16-8 Leu-Gearhart Complaint “In 1992 Respondent began representing Susan Leu (now Gearhart) in a family law matter. The case, John Leu v. Susan Leu, Case No. 92-0786-CV, went on for several ⁵⁴⁷ years as the parties contested issues of custody, visitation and child support involving a minor child. William R. Nicklas, Jr., Esquire, represented the minor child and Patricia F. O’Connor, Esquire, represented the father, John Leu. “At a hearing on October 3, 1997, the parties finalized an agreement on the record on various issues, including child support and attorney’s fees for Mr. Nicklas. Judge Dwyer instructed Respondent to prepare an order incorporating the terms of the parties’ agreement for the court’s signature. “Within a month following the hearing, Respondent evidently forwarded a proposed order to Ms. O’Connor.

Ms. O’Connor sent Respondent a letter dated November 4,1997, acknowledging receipt of the order and requesting one modification but otherwise agreeing to the language. Ms. O’Connor requested that Respondent submit a revised order for her review and signature. “There is insufficient evidence in the record to determine exactly why the proposed order was not finalized after November 4, 1997, but it is clear that no order was ever filed with the court. “Respondent admits that he failed to submit a final order. Respondent claims that he was under the mistaken impression that opposing counsel would prepare and submit the order. “No order was submitted to Judge Dwyer. B.C No.2001-200-16-8 Rosen Complaint “On May 4, 1996, Melanie Rosen (‘Rosen’) was injured in a motor vehicle accident.

On or about February 12, 1997, Rosen retained Respondent to represent her in a suit to recover damages. Rosen and her mother, Linda Rosen, signed a retainer agreement that provided for Respondent to receive a contingency fee of thirty-three percent of any and all monies that were recovered. ⁵⁴⁸ “In 1998, suit was filed in the District Court for Prince George’s County against State Farm Insurance. Respondent asked James J. Cagley, Esquire (‘Cagley'), to handle the trial for him. Cagley had worked for Respondent in the past as an associate but was not employed by Respondent or otherwise associated with Respondent’s law practice at that time.

Rosen was advised of and agreed to Cagley’s participation in the case in advance of trial. “In July 1999, Cagley represented Rosen at trial. Judgment was entered in favor of Rosen in the amount of $7,274.59, plus court costs. On August 5, 1999, counsel for State Farm forwarded a draft in the amount of $7,324.59 to Cagley. State Farm made the draft payable to Rosen and Respondent.

Cagley turned the draft over to Respondent so Respondent could handle disbursement of the proceeds from the case. “Some time following the receipt of payment from State Farm, Cagley prepared a handwritten list of medical bills and litigation costs related to the case. Thereafter, Cagley prepared a separate handwritten document titled ‘Disbursement Sheet (Draft)’, breaking down the amounts to be deducted from the Rosen ‘award', including counsel fees, litigation expenses and outstanding medical bills and liens. In order to ensure that the client, Melanie Rosen, cleared $2,000.00, Respondent and Cagley agreed to reduce their combined attorney’s fee to $2,319.95. Cagley confirmed this in a handwritten note to Respondent dated October 4, 1999. “On August 20, 1999, Respondent deposited the draft into his attorney trust account at the Suburban Bank of Maryland.

Respondent admits that these funds represent trust money as defined by the Maryland Code, Business Occupations & Professions § 10-306(d). “On October 8, 1999, Respondent issued the following three checks drawn on his attorney trust account: Check # Amount Payee 768 $1,159.98 Gary Mininsohn 769 $2,000.00 Melanie Rosen 770 $1,159.97 James Cagley TOTAL $4,319.95 ⁵⁴⁹ “By October 21, 1999, those three checks had posted to Respondent’s trust account. At that point, the undisbursed balance (trust money) from the proceeds of the Melanie Rosen case was $3,004.64. “On November 10, 1999, Respondent issued another check to Cagley in the amount of $61.60 to reimburse him for expenses. Of that check, $51.60 was directly attributable to the Rosen case. Respondent continued to maintain possession and control of the remaining trust money from the Rosen case.

After issuing the $61.60 check to Cagley on November 10, 1999, Respondent did not make any further distributions attributable to the Rosen case until June 2000. During that period, three medical bills or liens listed on the draft disbursement sheet prepared by Cagley remained unpaid, as follows: Dr. Michaels $ 250.00 Germantown Injury Care Center, Inc. $2,392.09 MAMSI Lien $ 246.46 TOTAL $2,888.55 “Through June 28, 2000, the balance in Respondent’s attorney trust account remained above the undisbursed Rosen trust money balance of $2,953.04. On June 26, 2000, Respondent wrote two checks to himself totaling $1,900.00. One check for $1,000.00 was annotated ‘fee transfer’ and the other check for $900.00 was a transfer to payroll.

The presentment of those two checks on June 28, 2000 caused the balance in the Respondent’s trust account to fall to $2,101.68, below the $2,953.04 that should have remained in trust from the Rosen case. “In June 2000, Respondent reached an agreement with a representative of Germantown Injury Care Center, Inc. to accept $1,554.00 as a compromise of Melanie Rosen’s outstanding balance owed for medical treatment. Respondent wrote a trust account check, for $1,554.00 payable to ‘Ger-mantown Injury Center’ on June 23, 2000. “After deducting the payment of $1,554.00 to Germantown Injury Care Center, Inc. from the previous Rosen trust ⁵⁵⁰ money balance of $2,953.04, Respondent should have been holding $1,399.04 in trust money related to the Rosen case. Instead, the overall balance in Respondent’s trust account remained at $547.68 from July 10, 2000 until September 5, 2000, when other client or fiduciary funds, unrelated to the Rosen case, were deposited. “After obtaining a reduction of the Germantown Injury Care Center, Inc. bill from $2,392.09 to $1,554.00, Respondent did not promptly disburse the amount of the reduction ($838.09) to his client, Melanie Rosen, or to any third party for Rosen’s benefit. Further, Respondent still had not disbursed payments to Dr. Michaels and to MAMSI, as had been listed on the disbursement sheet prepared by Cagley. “In late November 2000, Rosen’s mother, Linda Rosen, filed a complaint against Respondent with the Commission.

With a cover letter dated December 4, 2000, Bar Counsel forwarded a copy of Linda Rosen’s complaint to Respondent and requested a written response. Bar Counsel’s letter specifically requested that Respondent ‘provide a full accounting of the settlement funds you received on behalf of Melanie Rosen, including copies of a settlement distribution sheet, a deposit ticket reflecting your deposit of the settlement funds and all canceled checks by which funds were disbursed.’ Bar counsel’s letter further requested copies of Respondent’s ‘monthly trust account statements from the date the settlement funds were first deposited through the present.’ ” “Respondent responded to Bar Counsel in a letter dated January 2, 2001, and received by the Commission on January 16, 2001. Respondent’s letter did not provide the complete accounting of the Rosen settlement funds requested by Bar Counsel. With his letter, Respondent submitted copies of only three trust account checks, numbered 786, 788 and 789.

The three checks, submitted by Respondent, all dated October 12, 2000, were made payable as follows: Check # Amount Payee 786 $584.99 Melanie Rosen 788 $ 65.00 Dr. Weiss 789 $100.00 U.S. Legal Support TOTAL $749.99 ⁵⁵¹ “Respondent indicated in his letter to Bar Counsel that the check to Melanie Rosen represented ‘additional monies’ for Rosen linked to a reduction in a medical bill owed to a ‘Dr. Bolger’ (Germantown Injury Care Center). Respondent did not disclose to Bar Counsel that the reduction had been negotiated in June 2000. Respondent provided no other information in his letter concerning the amount deposited in his trust account as proceeds of Rosen’s case or about the distribution of such funds. “The check to Rosen, purportedly written on October 12, 2000, posted to Respondent’s trust account on December 27, 2000. The check to Dr. Weiss, issued in payment of a medical bill incurred by Rosen, also dated October 12, 2000, posted to Respondent’s trust account on January 3, 2001.

The check to U.S. Legal Support, for a deposition transcript from a second unrelated personal injury case in which Respondent and Cagley also represented Rosen, also dated October 12, 2000, posted to the account on January 9, 2001. There was no recovery in the second case, which went to trial in February 2000. Upon deducting the combined total of those three checks, a balance of $649.05 in trust money should have remained on the Rosen client ledger. Respondent, however, maintained no running ledger balance or other record keeping system that kept track of the trust money in the Rosen case. “Marc O. Fiedler (‘Fiedler’), an investigator employed by the Commission, testified in this proceeding that he was assigned to conduct further investigation of the complaint filed by Linda Rosen.

Fiedler testified that he made an appointment to interview Respondent. When he made the appointment, Fiedler asked Respondent to have available all information and documents previously requested in Bar Counsel’s letter dated December 4, 2000. “At the time of the interview, Respondent did not have available and did not provide any deposit item(s), canceled checks or trust account statements. Respondent did provide Fiedler with copies of the three documents prepared by Cagley, including the draft disbursement sheet listing, inter ⁵⁵² alia, the disbursements to be made to Dr. Michaels and to MAMSI. When Fiedler asked Respondent if he had any written statement in his file showing the remittance to Rosen and how it was determined, Respondent was unable to produce any such statement other than the draft disbursement sheet prepared by Cagley. “At the conclusion of Fiedler’s interview of Respondent, Fiedler reiterated Bar Counsel’s request that Respondent provide bank statements, deposit items and canceled checks, i.e., records that would enable Bar Counsel to review Respondent’s receipt, maintenance and disbursement of trust money in the Rosen case.

When Bar Counsel had not received such records by February 28, 2001, Fiedler sent Respondent a letter to that effect. Respondent then forwarded a set of monthly trust account statements without any explanatory cover letter. “Because the materials that Respondent submitted were insufficient to satisfy Bar Counsel’s request, Bar Counsel issued a subpoena to the custodian of records at The Columbia Bank (successor to Suburban Bank of Maryland) to obtain Respondent’s complete trust account records dating back to May 1999. The Columbia Bank ultimately produced such records to Bar Counsel. “Respondent did not disburse payments to Dr. Michaels in the amount of $250.00 and to MAMSI in the amount of $246.46, either from his trust account or from any other account. The only written distribution statement that may have been provided to the client, Melanie Rosen, was the draft disbursement sheet prepared by Cagley.

That statement inaccurately reflected the determination of the remittance to Rosen because the remittance was premised, inter alia, on the deduction of the amounts listed as payments to be made to Dr. Michaels and to MAMSI. “The analysis of the Rosen trust money and of other activity in Respondent’s trust account is supported by bank records obtained by Bar Counsel for the period from May 7, 1999 through April 30, 2001. In addition, John DeBone, a paralegal employed by the Commission, prepared a transaction ⁵⁵³ summary and testified in support of his analysis of the bank records. “Respondent has been unable to locate the Rosen file. Respondent failed to provide a copy of any written statement he may have sent to Rosen explaining the outcome of her case and showing the remittance to Rosen. Respondent explained that he could not recall whether or not Rosen received a written statement incorporating the disbursements in her case from Respondent or if it was sent by Cagley. “In court, Respondent testified that he continued to hold funds in the Rosen account to pay Dr. Michaels and MAMSI and that he wrote checks as recently as March 31, 2003, but has not sent them.

Respondent could not assert that there were sufficient funds in his trust account to cover those checks on the date that he testified. Respondent said he believed that he had funds of his own in the trust account when he drew the two checks in the amount of $1,900.00 and mistakenly transferred clients’ funds. “Respondent testified that he had kept the Rosen account open while he attempted to resolve a claim of the chiropractor by attempting to achieve a reduction in the latter’s fee. Further, he says he lost touch with his client, who moved frequently. BC Docket No. 2001-237-16-8 Failure to Pay Withholding Tax “Since 1995, Respondent has continuously maintained an employer withholding tax account with the State of Maryland, Comptroller of the Treasury (‘Comptroller’).

That account has been held in the name of Gary S. Mininsohn. In September 1995 and October 1996, tax liens were filed against Respondent for delinquent payment of income tax reported as being withheld from his employees’ wages. Those two liens were satisfied in October 1998 through a bank garnishment. ⁵⁵⁴ “As an employer, Respondent was responsible for filing periodic reports of income tax withheld from his employees’ wages. Those reports, designated by the Comptroller as Form MW-506, are to be filed on either a monthly or quarterly schedule.

The employer is required to remit payment of withheld income tax to the Comptroller at the same time such reports are filed. “Respondent, who was on a monthly reporting schedule, did not file any Forms MW-506 after January 1999. Consequently, the Comptroller began preparing estimates of income tax that should have been withheld from his employees’ wages. Respondent did not notify the Comptroller in writing that he no longer had any employees. The Comptroller received year-end W-2 forms for 1999 and 2000 reflecting that Respondent did have employees who received taxable income from Respondent in those years. “After January 1999, Respondent no longer withheld State income tax from the wages of his employees and therefore did not hold such funds in trust for the State.

Respondent likewise made no payments of State income tax that should have been withheld from his employees’ wages after January 1999. By providing W-2 forms reporting Maryland income tax withholdings in 1999 and 2000, Respondent misrepresented to his employees and to the State that money had been withheld for payment of taxes when, in fact, such money had not been withheld. “On November 6, 2000, the Comptroller filed a Notice of Lien of Judgment for Unpaid Tax against Respondent in the Circuit Court for Montgomery County. That lien was for unpaid withholding tax in the amount of $1,899.13, plus interest of $308.23 and penalty of $248.89, for a total lien amount of $2,492.25. That lien covered Respondent’s withholding tax liability for 1999. “On February 25, 2003, the Comptroller filed another cumulative withholding tax lien against Respondent in the Circuit Court for Montgomery County.

That lien reflected unpaid tax in the amount of $5,129.16, plus interest of $1,704.58 and penalty of $850.66, for a total lien amount of $7,684.40, ⁵⁵⁵ covering the years 1999 through 2001. As of the conclusion of the hearing before this court, Respondent had not satisfied any portion of that lien, nor had he entered into any payment plan with the Comptroller. “Respondent understood his obligation as an employer to withhold income tax from the salaries of his employees and to report such withholding. Respondent further understood the fiduciary nature of his obligation to the State and federal tax collecting authorities, i.e., that monies withheld by an employer for payment of employees’ income tax constitute trust monies. “Respondent acknowledges that he failed to submit employee withholding returns and payment at times, ascribing his shortcomings to financial problems and neglect of administrative details. Respondent contracted the services of an agency to prepare employee-withholding forms in the year 2000, although he submitted the forms himself.

Respondent suggests that the agency was incorrect in filling out the forms and that he did not catch the mistakes before submitting them. Respondent has not notified the Comptroller that he has no employees subject to withholding. Respondent’s Case “The Respondent testified on his own behalf. Respondent testified that in 1996, a number of events occurred which dramatically affected his ability to cope with his personal and professional responsibilities.

In the spring of that year, Respondent received a telephone call informing him that his wife had been named in a domestic proceeding as a paramour of the husband of a couple with whom Respondent and his wife had maintained a close social relationship. Respondent and his wife separated as their children’s school year ended in mid-June 1996. “Respondent’s mother died July 4, 1996. Her death was especially difficult for the Respondent, coming close on the heels of the breakup of his marriage. During that same year, an administrative assistant of long standing, upon whom the Respondent relied heavily, left his employ and ⁵⁵⁶ moved to Texas.

Respondent testified that those three events, which came in such close succession, staggered Respondent. “Respondent has maintained an active trial practice for most of his professional career. Respondent testified that his personal difficulties, including the loss of his dependable assistant, left him unable to provide adequate supervision to employees he hired. “Furthermore, Respondent experienced financial problems as he attempted to provide college educations for his two children and cope with debts that remained after his divorce. Respondent’s difficulty in focusing on professional matters caused a downturn in his practice, and his acceptance of small retainers from clients severely limited the cash flow in his practice. “Respondent and his witnesses portrayed an individual who is disorganized in both his personal and professional lives. For example, although Respondent believes he received a copy of the Interrogatories from Reuschling’s attorney, Respondent does not actually recall seeing them.

Respondent also does not recall receiving the court orders, but Respondent does acknowledge that at some point he was personally handed a copy. “Respondent called a number of witnesses to attest to his professional integrity and competence. James P. Nolan, President of the Maryland State Bar Association, testified that he and the Respondent were law school classmates and that their respective families had been close socially since the time the two were in law school. Mr. Nolan has called upon Respondent for legal advice and referred cases to him, even recently. Mr. Nolan was aware of the personal problems Respondent encountered and observed that he had seemed to lose focus on the business side of his law practice. “John Kudel, a former President of the Montgomery County Bar Association and Montgomery County Bar Foundation and member of the Board of Governors of the Maryland State Bar Association, testified that he and the Respondent have shared office space for about five years and during ⁵⁵⁷ that time have worked on some cases together.

Mr. Kudel was aware of the events that occurred in Respondent’s life in 1996 and had observed that thereafter there had been a noticeable turnover in Respondent’s employees, apparently resulting from a rather haphazard hiring of unskilled people by the Respondent. “The office manager of the attorneys who share offices with the Respondent testified that she has known the Respondent for about 18 years. She has observed that, since the events of 1996, Respondent has not attended to details such as timely billing and careful hiring of employees. As a result of the latter, Respondent has had a series of inexperienced employees who did not remain in his employ long enough to be properly trained and become effective employees. “An employee of Respondent’s counsel testified that she has been working for Respondent as an independent contractor since February of this year, acting as a bookkeeper. She has kept track of Respondent’s accounts receivable and payable, client billing and bank accounts, including his client trust account. “William Simmons, Chair of the Montgomery County Lawyer Assistance Program testified that he had received a complaint from Judge Vaughey of the District Court of Maryland for Montgomery County and contacted the Respondent.

Simmons has met with the Respondent three or four times to assist the Respondent in organizing his practice. “The three lawyers who testified for the Respondent all asserted that their experience over the years with the Respondent have led them to conclude that he exhibits a high level of legal competence and integrity. “Respondent called David R. Eddy, Ph.D., a clinical therapist licensed in Virginia and Maryland, with whom he has been in counseling since January of this year. Dr. Eddy testified that he has worked with Respondent to resolve issues arising from the personal events that occurred in 1996. Dr. Eddy assesses the Respondent as one who ⁵⁵⁸ wishes to please everyone and who leads a chaotic personal and professional life. Dr. Eddy believes that the Respondent exhibits numerous features of depression, including general sadness and sleep interruption and is preoccupied with the losses in his life.

During counseling sessions, Respondent has acknowledged to Dr. Eddy that he committed many of the acts or omissions that led to the current charges against him by the Attorney Grievance Commission. “Upon cross-examination, Dr. Eddy testified that Respondent’s apparent depression does not affect his ability to recognize his responsibilities, but affects his ability to carry out those responsibilities. Dr. Eddy could not assert a causal connection between Respondent’s psychological [condition] and the misconduct alleged in this proceeding. “While Respondent admitted to most, if not all of the violations, he ascribes their course to his personal difficulties and his difficulty in focusing on details in his law practice. CONCLUSIONS OF LAW “Based upon the findings of fact proven by clear and convincing evidence, this court concludes: Reuschling Complaint: “The evidence clearly establishes that the Respondent failed to appear in the District Court for examination in aid of enforcement of judgment on August 23, 2000. Thereafter, Respondent appeared on November 15, 2000, without the required records he had been ordered to produce.

Although Respondent claims that his absence on December 20, 2000 is explained by inclement weather, he took no steps to reschedule the proceeding or to prevent a proceeding being held to determine whether or not he should be found in contempt. When Respondent appeared in court on January 24, 2001, he was ordered by the Judge to produce a number of records on or before March 12, 2001. Respondent did not produce those records. Respondent has not asserted that ⁵⁵⁹ he had no valid obligation to respond and to conform to the rules of court. “In connection with Mr. Reuschling’s efforts to enforce a judgment obtained against Respondent, Respondent repeatedly failed to appear in court and to produce documents as directed by court order.

Respondent knowingly disobeyed numerous obligations and court orders and is in violation MRPC 3.4(c). “Failure of an attorney to be present for a scheduled court appearance interferes with the administration of justice. Attorney Grievance Comm’n v. Ficker, 319 Md. 305, 315 , 572 A.2d 501 (1990). There, the attorney was found in violation of the ethical rule that prohibited engaging in conduct prejudicial to the administration of justice, for missing a court appearance on behalf of a client. In this instance Respondent failed to appear at a proceeding that he personally had been ordered to attend and twice faded to produce records as ordered by the District Court.

Respondent engaged in conduct that was prejudicial to the administration of justice in violation of MRPC 8.4(d). Respondent is, by violating 8.4(d), also in violation of Rule 8.4(a). Leu-Gearhart Complaint “Respondent was directed by Judge Dwyer to prepare an order incorporating the terms of the parties’ agreement at the conclusion of proceedings on October 3, 1997. Respondent was aware of Judge Dwyer’s direction as was evidenced by the correspondence between the Respondent and the other attorneys involved in the case.

Respondent did not submit the order as directed. “Respondent violated MRPC 1.3 by not acting with ‘reasonable diligence and promptness in representing a client.’ By Respondent’s lack of diligence and failure to fulfill the directive of the court he has violated Rule 8.4(d). “Petitioner initially charged Respondent with violation of MRPC 1.4 by failing to keep his client ‘reasonably informed about the status of a matter ... and promptly comply [ing] with reasonable request for information.’ ” ⁵⁶⁰ “Petitioner presented no evidence regarding Respondent’s communication with his client, and the court therefore finds no violation of MRPC 1.4. Rosen Complaint “Respondent deposited into his client trust account the sum of $7,324.59 upon receipt of a check in that amount from Cagley, his associate counsel in the case. Cagley prepared a hand written document entitled ‘Disbursement Sheet (Draft),’ which apparently was the only documentation of the outcome of the proceeding and explanation of intended disbursements from the proceeds. Petitioner’s paralegal, who examined the Rosen account testified that the Respondent disbursed $2,000.00 in a check payable to Melanie Rosen on October 8, 1999.

Respondent was unable to produce copies of correspondence with his client, testifying that he cannot locate that file. “Respondent drew a check to Rosen for $584.99 that was allegedly written on October 12, 2000. However, the check, did not post to the account until December 27, 2000, two months after the checks were purportedly written, one month after Rosen’s mother filed her compliant and after Respondent received notice of the Rosen complaint. After deducting the total of the three checks, $649.05 should have remained from the Rosen case. Respondent is unable to account for the money that has not been disbursed to Rosen. “Complicating the efforts of the Petitioner to investigate the complaint was the inadequacy, and more specifically the lack of documentation of records concerning Respondent’s handling of the Rosen account.

Particularly notable is Respondent’s failure to maintain a running ledger balance or other record keeping system with regard to the Rosen account. The evidence presented in the Rosen claim demonstrates the disarray in Respondent’s practice. Respondent could not produce his file or any trust account records in that matter. ⁵⁶¹ “By failing to keep complete records of his client’s trust fund in this case, Respondent has violated MRPC 1.15(a) requiring that he maintain such records for five years after termination of the representation. Although Respondent is unable to produce evidence that he notified his client in writing of the outcome of the case and the remittance to which she was due, the burden to prove violation of MRPC 1.5(c) is upon the Petitioner.

While the Respondent cannot show evidence that he gave