Attorney Grievance Commission v. Moeller

PER CURIAM. Petitioner, Attorney Grievance Commission, acting through Bar Counsel, filed with this Court a Petition for Disciplinary or Remedial Action against Respondent, James C.A. Moeller, on November 5, 2007. The petition alleged numerous viola ⁶⁹ tions of the Maryland Lawyers’ Rules of Professional Conduct (MLRPC) arising out of an overdrawn trust account maintained by Respondent. Specifically, the petition charged Respondent, who was admitted to the Bar of this Court on June 21, 1984, with violations of MLRPC 1.1 (competence); 1.15 (safekeeping property); 8.1 (bar admission and disciplinary matters); and 8.4 (misconduct).

Consistent with Maryland Rule 16-752(a), 1 we assigned the matter to the Honorable Judge Emory A. Plitt, Jr. of the Circuit Court for Harford County, to hear evidence and submit findings of fact and conclusions of law. Respondent was personally served with the petition and summons, but failed to answer within the time prescribed. Petitioner then moved for an Order of Default, which the Circuit Court granted, pursuant to Maryland Rule 2 — 618(b) 2 . Respondent never sought to vacate the Order of Default, and a hearing was scheduled for the matter to proceed.

Pursuant to the Order of Default, Judge Plitt heard the matter on March 28, 2008, despite Respondent’s absence. Based on the evidence presented by Bar Counsel, Judge Plitt found by clear and convincing evidence that Respondent had violated MLRPC 1.1, 1.15(a), 8.1(b), and 8.4(d). I. Judge Plitt made the following findings of fact with respect to the alleged violations: On June 29, 2006, Petitioner received ⁷⁰ a notice from Bank of America that Respondent’s client trust account was overdrawn by $271.54. A check dated June 13, 2006 in the amount of $1,900.00, payable to Baltimore County, Maryland, caused the overdraft.

Petitioner sent Respondent three separate letters, between July and September 2006, concerning the overdraft and requesting an explanation. The first letter, sent through certified mail, was returned as unclaimed. The second and third letters were sent through regular mail (and presumably not returned to sender), and Respondent failed to respond to either. Shortly after Petitioner sent the third letter, Petitioner’s investigator telephoned Respondent on two separate occasions, leaving messages both times.

Respondent failed to respond to those messages. Petitioner’s investigator then sought to contact Respondent by visiting his home residence. He knocked on the door, but received no answer. Petitioner’s investigator left his business card wedged in the front door, but received no subsequent response.

On December 28, 2006, Petitioner’s investigator again visited Respondent’s home, this time to serve a subpoena for the bank records from the overdrawn account. At this visit, the investigator was successful in reaching Respondent; Respondent answered the door and spoke with the investigator in the basement of his home, which also served as his law office. During the interview, Respondent acknowledged that he recalled receiving something from Petitioner, but had not responded to the letters due to health problems. Respondent stated that he suffered from strokes and heart attacks, with the most recent incident occurring on November 6, 2006.

Respondent explained that the overdraft occurred because the recordation tax for a deed was more costly than originally estimated. Respondent told the investigator that he does not have any clients, no longer practices law, and is decertified because he does not have the money to pay his annual assessment to the Client Protection Fund. The account records obtained reveal that the negative balance remained on the trust account until October 26, 2006, the date on which the bank closed the account. Those records ⁷¹ also demonstrate that, from April 13, 2006 to the overdraft date (June 26, 2006), the account balance was below $1,900.00, which is the amount of the check payable to Baltimore County that overdrew the trust account.

Between January 1, 2006 and the overdraft date, there were no deposits of $1,900.00 or more into that account. Therefore, the funds associated with the overdraft necessarily had been deposited already as of January 1, 2006. Finally, between January 6, 2006 and June 20, 2006, Respondent withdrew from the trust account funds for his own use five times, totaling $650.00. Respondent also had an AOL service charge during that period for $167.47.

Based on the foregoing findings of fact, Judge Plitt made the following conclusions of law: Respondent violated MLRPC 1.1 3 (competence) by failing to collect enough money to pay the recordation tax associated with a real estate settlement; this error showed a lack of thoroughness and violated the rule. By invading funds belonging to a client and failing to hold the client’s property separately from his own, Respondent violated MLRPC 1.15(a) 4 (safe keeping property). Specifically, Respondent’s conduct violated MLRPC 1.15(a) because he failed to maintain a sufficient balance in the trust account and he withdrew monies for personal matters. Respondent violated MLRPC 8.1(b) 5 (bar admission and disciplinary matters) by ⁷² knowingly failing to answer Petitioner’s inquiries.

The conversation with Petitioner’s investigator demonstrated that Respondent had knowledge of Petitioner’s prior letters, which requested responses and information regarding the overdraft. Assuming Respondent had health issues, for at least a portion of the relevant time period, Respondent knew about Petitioner’s letters, could have responded, but nevertheless failed to do so. Respondent also violated MLRPC 8.4(d) 6 (misconduct) by failing to maintain sufficient funds in the trust account and failing to respond to Petitioner.

II

This Court has original and complete jurisdiction over attorney discipline proceedings. Based on an independent review of the record, we accept a hearing judge’s findings of fact as prima facie correct unless shown to be clearly erroneous. Att’y Griev. Comm’n v. Brown, 426 Md. 298, 315 , 44 A.3d 344 (2012).

Respondent, despite proper notification of these disciplinary proceedings, failed to file responsive pleadings or appear at oral argument before this Court, and neither Petitioner nor Respondent filed exceptions to Judge Plitt’s findings. The Circuit Court’s factual findings are therefore “established for the purpose of determining appropriate sanctions.” Md. Rule 16-759(b)(2)(A) 7 . ⁷³ With respect to a hearing judge’s conclusions of law, no deference applies and we review those conclusions de novo. Brown, 426 Md. at 318 , 44 A.3d at 357 . For the reasons that follow, we agree with Judge Plitt’s conclusions of law that Respondent violated MLRPC 1.1, 1.15(a), 8.1(b), and 8.4(d).

MLRPC 1.1 requires an attorney to provide competent representation, characterized by thorough preparation. Respondent’s failure to collect and maintain sufficient monies in his trust account to pay the recordation tax associated with a property settlement demonstrated a lack of thoroughness in his representation with respect to that matter. See Att’y Griev. Comm’n v. Agiliga, 422 Md. 613, 616-17 , 31 A.3d 103, 105 (2011) (agreeing with hearing judge’s conclusion that the attorney violated MLRPC 1.1, in part, by failing to maintain a trust account).

MLRPC 1.15(a) requires an attorney to maintain client funds in a trust account, separate from the attorney’s personal and operating funds. Respondent violated this rule by failing to maintain his own funds separate from client funds, as evidenced by the fact that Respondent withdrew funds for his personal use and had a series of personal charges (AOL) deducted from the trust account. Therefore, Respondent’s failure to maintain his trust account separately from his personal funds also violates MLRPC 1.15(a). See, e.g., Att’y Griev.

Comm’n v. Nussbaum, 401 Md. 612, 638 , 934 A.2d 1, 16 (2007) (concluding that attorney who commingled and improperly withdrew funds from a trust account violated MLRPC 1.15(a)); Att’y Griev. Comm’n v. Zuckerman, 386 Md. 341, 369 , 872 A.2d 693, 710 (2005) (concluding that an attorney’s failure to handle settlement funds properly violated MLRPC 1.15(a)). MLRPC 8.1(b) prohibits an attorney from knowingly failing to respond to a demand for information from a disciplinary authority. Respondent ignored Bar Counsel’s letters ⁷⁴ requesting information and responses, despite his admission of having received them.

He made no effort to provide the requested information and explanation; nor did he attempt to inform Bar Counsel of any health issues that would delay a response. Therefore, Respondent’s conduct violated MLRPC 8.1(b). See, e.g., Att’y Griev. Comm’n v. Harrington, 367 Md. 36, 49-50 , 785 A.2d 1260, 1268 (2001) (holding that the failure to respond to Bar Counsel’s request for information violated MLRPC 8.1(b)).

Lastly, MLRPC 8.4(d) provides that conduct “prejudicial to the administration of justice” is professional misconduct. An attorney, such as Respondent, who fails to maintain a client trust account in accordance with the applicable rules