Attorney Grievance Commission v. Post

BELL, C.J. The Attorney Grievance Commission of Maryland, the petitioner, by Bar Counsel, acting at the direction of the Review Board, see Maryland Rule 16-709, 1 filed a Petition For Disciplinary Action against Alan Franklyn Post, the respondent, in ⁶³ which it was charged that the respondent violated Rules 1.15, and 8.4, Misconduct 2 of the Maryland Rules of Professional Conduct, as adopted by Maryland Rule 16-812. Bar Counsel also alleged that the respondent violated Maryland Rule 16-609 3 and Maryland Code (1989, 1995 Replacement Volume) § 10-306 4 of the Business and Occupation Article. The alleged violations arose out of settlements of two personal injury cases, in which monies were retained by the respondent to pay medical bills owed by his clients to the complainant, Herbert Joseph, M.D. Rather than remit the monies to the doctor, to whom they were due, it was alleged that the respondent used them for his own purposes, paying the doctor only after the complaint in his case was filed with the petitioner. ⁶⁴ We referred the case to the Honorable Ann S. Harrington, of the Circuit Court for Montgomery County, for hearing. See 16-711.a. 5 Following a hearing, she set forth the facts, which are not in dispute, the parties having stipulated to them, as follows: “1.

Herbert H. Joseph. M.D. rendered medical treatment to three of Respondent’s clients: Ali A. Soleimanpour, Mehdi Zekri and Mohammed Zekri. Each of these clients signed assignments, authorizing Dr. Joseph to be paid from the proceeds of any recovery in their cases. “2. In October 1996, Respondent settled the personal injury cases of Mehdi and Mohammed Zekri.

The settlement proceeds were paid into Respondent’s client trust account, after which disbursement was made to Respondent’s clients. Dr. Joseph, who had examined the Zekris, was owed, but not paid, the sum of $2,847.00, which amount was retained in trust by Respondent from the settlement proceeds. “3. On November 5,1996, after the settlement of an unrelated case, Respondent drew two checks on his escrow account, payable to his firm, in the total amount of $13,912.78. On November 8, 1996, the balance in Respondent’s client trust account was $1,663.02.

The balance in the trust account as of December 31, 1996 was $463.26. “4. In June 1999, Respondent partially settled the personal injury case of Mr. Soleimanpour, and placed the settlement proceeds in Respondent’s client trust account. Mr. Soleimanpour, Respondent’s client, was paid all monies owed to him as a result of the settlement. Dr. Joseph charged $2,939.00 for his services, which amount was retained by Respondent in trust.

His fee was not paid by Respondent and, according to Respondent, was subject to negotiation. ⁶⁵ However, there had not been prior discussions between Respondent and Dr. Joseph. “5. On December 20, 2000, Respondent fully paid Dr. Joseph for the services Dr. Joseph rendered to the Zekris and to Mr. Soleimanpour. Payment occurred after Dr. Joseph submitted a complaint to the Attorney Grievance Commission of Maryland. Respondent paid Dr. Joseph from funds received as a fee in an unrelated matter. “6.

Respondent is and has been seriously ill for some time, including all times relevant to the pending Complaint. Initially, in 1996, Respondent’s physicians thought his condition was simply a case of irritable bowel syndrome and reflux esophagitis. “7. When Respondent’s condition did not improve, Respondent underwent an endoscopic biopsy and a diagnostic colonoscopy in May 1998, after Respondent was admitted to the emergency room of Shady Grove Adventist Hospital with a case of severe gastrointestinal bleeding. This examination was inconclusive. “8.

As it happened. Respondent was suffering from a rare form of cancer that his physicians were initially unable to detect. “9. On January 18, 2000, Respondent underwent an extreme surgical procedure in an attempt to save his life. On that date, at Suburban Hospital, Dr. Bemy J. Kreutz began what he thought would be exploratory surgery to find and resect a nonmalignant gastric tumor — the suspected cause of the rectal bleeding. “10.

After opening, however, Dr. Kreutz discovered a massive tumor far larger than what he had expected to find — 12 centimeters in length. Due to this unique and unexpected finding, another surgeon. Dr. Ernest Hanowell, was consulted and ‘scrubbed into the case.’ Drs. Kreutz and Hanowell then discovered a large area of cancerous matter, which the hospital pathologist immediately read as a spindle cell tumor.

The entire cancerous mass was then resected. ⁶⁶ “11. Pathologists at the National Institutes of Health later confirmed the initial surgical diagnosis: spindle cell malignant neoplasm. A year later, Respondent underwent follow-up surgery to ensure the entire tumor was resected and that it had not spread. “12. Simply stated, Respondent has a rare form of cancer formally known as gastrointestinal stromal tumor.

Even after complete resection, such as Respondent endured, the five-year survival rate is only 54%. “13. In December 2001, Respondent underwent unrelated surgery to correct chronic back problems due to a fragmented lumbar disc. This condition prevented Respondent from walking for several months preceding the surgery due to total loss of use of his right leg. “14. In June 2002, Respondent was diagnosed with coronary artery disease resulting in an angioplasty and stint replacement in July 2002. “15.

At all relevant times. Respondent has cooperated with Bar Counsel during the course of its investigation, including submitting to a personal interview and producing documents.” After reviewing the applicable law and the parties’ arguments, including the respondent’s position with regard to the appropriate sanction, the hearing court made Findings and Conclusions, as follows: “Respondent acknowledges and this Court finds by clear and convincing evidence that Respondent violated Rule 8.4(d) of the Maryland Rules of Professional Conduct, conduct prejudicial to the administration of justice. The evidence is also sufficient to find that Respondent violated Rule 16-609 and § 10-306 of the Business Occupations and Professions Article, which pertain to his unauthorized personal use of client funds held in trust. “Respondent contends, however, that his actions did not violate Rule 1.15 and 8.4(b) and (c) of the Maryland Rules of Professional Conduct and urges this Court to conclude that he acted negligently and without an intent to misappropri ⁶⁷ ate the funds in question. The Court is sympathetic to the Respondent for the serious and protracted illnesses he endured and the lengthy course of treatment he underwent, but the clear and convincing evidence in this case establishes that he violated all sections of Rule 1.15 as well as Rule 8.4(b) and (c). “Respondent’s escrow account records show that in October 1996, Respondent retained $2,847.00 for the purpose of paying Dr. Joseph on behalf of Mehdi Zekri.

By November 8, 1996, the balance was to $1,663.02. Respondent’s escrow account went out of trust by Respondent drawing two checks on the account and paying a portion of those funds to his own firm. Respondent failed to hold and keep the funds in his escrow account, he failed to notify Dr. Joseph of the receipt of those funds and failed to deliver them promptly. To the extent that the amount owed to Dr. Joseph was in dispute, Respondent took no action to negotiate a settlement and failed to keep the funds in trust until the dispute was resolved. “Respondent acknowledged that he also failed to keep the funds in trust in connection with the Soleimanpour matter in 1999. “Respondent admitted in his testimony that he knew of his obligation to hold the funds in trust, that he knew he was supposed to be disbursing the funds to Dr. Joseph and, nevertheless, he disbursed the funds to himself.

No evidence or explanation supports a conclusion that the funds were taken either negligently or by mistake. Respondent’s serious illness is unconnected to his decision to personally use client funds held in escrow. Nor is there any evidence of inept or mismanaged business practices. Respondent’s conduct was intentional and dishonest. “This Court recognizes that the issue of sanctions is to be decided by the Court of Appeals.

This Court is also aware that Respondent has been disciplined by the Court of Appeals on one previous occasion in 1992. The evidence is uncontroverted, however, that during the relevant time period Respondent was living under the strains of a debilitating ⁶⁸ and life-threatening illness. The record of the proceedings also contains an Affidavit prepared by James W. Salter, III, Esq., a long-time member of the Maryland Bar, who holds the opinion that Respondent is a person of good character whom Mr. Salter has found to be honest and trustworthy during their relationship. “This Court finds on the record presented that Petitioner has presented evidence to support a finding by clear and convincing evidence that Respondent knowingly and intentionally misappropriated the funds in question. This Court recognizes the mitigating factors presented by Respondent[;] however, Respondent failed to provide sufficient explanation for the direct withdrawal of the escrow funds.

Therefore, this Court finds that Respondent is in violation of all of the rules charged in the Petition for Disciplinary Action. Consequently, this Court recommends that Respondent be sanctioned.” The petitioner took no exceptions to the findings and conclusions of the hearing court. It filed, however, Petitioner’s Recommendation for Sanction, in which it urged the respondent’s disbarment. In support of the recommendation, the petitioner emphasized what we have often said with regard to the sanction for misappropriation of entrusted funds, that it “is an act infected with deceit and dishonesty, and, in the absence of compelling extenuating circumstances justifying a lesser sanction, will result in disbarment.” Attorney Grievance Comm’n v. Spery, 371 Md. 560, 568 , 810 A.2d 487, 491-92 (2002).

In addition to Spery , the petitioner also relies on Attorney Grievance Comm’n v. Sullivan, 369 Md. 650, 655-56 , 801 A.2d 1077, 1080 (2002) and Attorney Grievance Comm’n v. Vanderlinde, 364 Md. 376, 410 , 773 A.2d 463, 483 (2001). The respondent excepts to the hearing court’s finding of the Rule 8.4(b) and (c) violations. Pointing out that, to establish a Rule 8.4(b) violation, there must be clear and convincing proof of the respondent’s commission of a crime, with the requisite intent, and that the act adversely reflects on his fitness as a lawyer, citing inter alia Attorney Grievance Comm’n v. Post, 350 Md. 85, 92 , 710 A.2d 935, 938 (1998), and that the proof of ⁶⁹ Rule 8.4(c) requires a showing that his conduct was dishonest, deceitful or fraudulent, he argues that fact finding in that regard was clearly erroneous. He submits that the conclusion the hearing court drew from the facts it found “flow[ed] solely from the fact that the escrow balances were out of trust on two occasions (one in 1996 and one in 1999), and nothing more.” He relies on Attorney Grievance Comm’n v. DiCicco, 369 Md. 662, 682-83 , 802 A.2d 1014, 1025 (2002), in which this Court rejected the argument that a violation of Rule 8.4(c) was compelled by a showing the number of times an attorney’s escrow account is out of trust.

The respondent also challenges the hearing court’s conclusions that his serious illness was not the cause of the Rule 8.4 violations and that there was no evidence of “inept or mismanaged business practices.” The hearing court did not credit or accept the respondent’s evidence of the course of dealings between the respondent and the complainant — they worked together on several dozen cases over decades and there were only two occasions on which he was not paid timely — as establishing a lack of intent. The respondent excepts to the failure of the hearing court to find that his misconduct was negligent, rather than intentional. Similarly, the respondent faults the hearing court for not finding, on the evidence he presented, that he “honestly believed Dr. Joseph’s fee in the Soleimanpour case was subject to negotiation or that he engaged in poor business practices.” With respect to the sanction, the respondent maintains that disbarment is an inappropriate sanction in light of the purpose of attorney discipline, to protect the public, not to punish the erring attorney, see Attorney Grievance Comm’n v. Garfield, 369 Md. 85, 98 , 797 A.2d 757, 764 (2002), and when all of the facts and circumstances of his case are considered. Important to the respondent’s argument is that “the hearing judge’s finding that Respondent acted with the required specific intent and/or the evidence does not support deliberate dishonesty.” Alternatively, he submits that, even if the court’s findings of intentional conduct are sustained, there are mitigating circumstances in his case, when considered in light of circumstances found mitigating in previous cases, that “militate against” ⁷⁰ disbarment.

In particular, he relies on the facts that there are no client complaints in this case, unlike in DiCicco and Attorney Grievance Comm’n v. McIntire, 286 Md. 87, 95 , 405 A.2d 273, 278 (1979), in neither of which was disbarment the sanction imposed, that during the relevant time periods, he was suffering from a “most serious and utterly debilitating ... physical health coridition[ ],” Vanderlinde, 364 Md. at 413-14 , 773 A.2d at 485 , a severe, debilitating and life-threatening cancer, which is the type of “compelling extenuating circumstances,” id., contemplated by that case, and which the evidence he produced indicated “seriously affected his practice of law and management of his office,” that he poorly managed his office, that his dealing with the complainant spanned decades, with only two instances of failure