Attorney Grievance Commission v. Powell

RAKER, Judge. The Attorney Grievance Commission, acting through Bar Counsel, filed a petition with this Court for disciplinary action against Robert D. Powell, respondent, alleging violations of the Maryland Rules of Professional Conduct (hereinafter “MRPC”). The Commission charged respondent with violating MRPC Rules 1.15(a) (Safekeeping Property), 1 Rule 16-607 (Commingling of Funds), 2 8.4(c) and (d) (Misconduct), 3 and ⁴⁶⁵ 8.1(a) and (b) (Bar Admission and Disciplinary Matters). 4 This Court referred the matter to Judge Paul A. McGuckian of the Circuit Court for Montgomery County to conduct an evidentiary hearing and to make findings of fact and conclusions of law in accordance with Maryland Rules 16 709(b) and 16-711(a). Judge McGuckian made the following Findings of Fact and Conclusions of Law. “Procedural Background “On February 27, 2001, the Court of Appeals of Maryland ordered that the charges contained in the Petition for Disciplinary Action filed by the Attorney Grievance Com ⁴⁶⁶ mission of Maryland, Petitioner, in this matter be transmitted to this Court to be heard and determined in accordance with Maryland Rule 16-709 et seq.

On April 20, 2001, the Respondent, Robert D. Powell, was served with the Petition for Disciplinary Action, the Order of the Court of Appeals, a Writ of Summons issued by the Circuit Court for Montgomery County directing Respondent to file a written response to the Petition within fifteen (15) days of service. On April 20, 2001, Respondent was also served with Petitioner’s Interrogatories, Requests for Admissions of Fact and Genuineness of documents and a Request for Production of Documents. On May 14, 2001, Respondent’s Answer was filed. “On June 14, 2001, Petitioner filed a Motion for Sanctions Upon Respondent’s Failure of Discovery. Respondent did not oppose this Motion.

On July 27, 2001, this Court granted Petitioner’s Motion and entered an Order directing that the Petitioner’s Request for Admission of Facts and Genuineness of Documents be admitted, that the responsive pleading filed by Respondent be stricken, that Respondent be prohibited from introducing at trial any evidence to oppose the claims of Petitioner as set forth in the Petition for Disciplinary Action, and that judgment by default be entered against the Respondent and in favor of the Petitioner finding that the Rules of Professional Conduct have been violated as alleged in the Petition for Disciplinary Action. “Findings of Fact “This Court finds the following facts have been established by clear and convincing evidence: “The respondent was admitted to the Maryland Bar on April 2, 1974. He currently maintains an office for the practice of law in Montgomery County, Maryland. “On or about June 10,1998, Bar Counsel received a notice dated June 5, 1998 from Crestar Bank of an overdraft on an attorney trust account entitled ‘Law Offices of Robert D. Powell, P.C.,’ account number 209800191 (hereafter ‘the trust account’). Thereafter, on or about June 11, 1998, Bar ⁴⁶⁷ Counsel sent a copy of the overdraft notice to the respondent and requested that respondent provide a full explanation for the overdraft and financial records such as client ledger cards, deposit slips, canceled checks, and monthly bank statements for each month from January 1998 to June 1998. The respondent was also asked to respond within ten (10) days of the receipt of Bar Counsel’s letter.

Respondent received Bar Counsel’s letter on June 15,1998. “On or about June 22, 1998, respondent wrote to Bar Counsel and falsely represented that the overdraft was the result of a bank error, and that he had asked the bank to verify this information, withdraw its Notification of Account Status of June 5, 1998, and communicate directly with Bar Counsel’s office. Thereafter, Bar Counsel received no communication from Crestar Bank. “On or about July 17, 1998, Bar Counsel sent another letter to respondent and advised that the file on the overdraft would remain open until supporting documentation was forwarded to Bar Counsel. This letter was received by respondent on August 11, 1998. Bar Counsel did not receive a reply from respondent, and, on or about August 24, 1998, Bar Counsel sent another letter to respondent and advised that, if Bar Counsel did not receive an explanation for the overdraft within ten (10) days, he would docket the file because of respondent’s failure to respond.

The letter was delivered to the respondent on August 24, 1998. “Bar Counsel received a letter from respondent dated September 1, 1998 in which respondent again falsely represented that the overdraft was the result of a bank error. Respondent’s explanation was that on June 5, 1998, he went to the bank to make a deposit. Due to a long line, a bank officer agreed to complete the transaction for him. He left a check and a deposit ticket with this bank employee at about 10 a.m. on Friday, June 5, 1998.

That transaction, however, was not credited to the account until Monday, June 8,1998. “Respondent failed to provide with his letter of September 1, 1998 the documents previously requested by Bar ⁴⁶⁸ Counsel in letters dated June 22, July 11, July 27 and August 24,1998. “On September 23, 1998, Bar Counsel sent another letter to respondent notifying him that the matter had been formally docketed and an investigation would be conducted. Bar Counsel for the fourth time requested monthly bank statements, deposit slips, client ledger cards, and canceled checks for the trust account and asked that respondent identify the source/sources of funds deposited into the trust account for the period January 1 through September 23, 1998. Respondent failed to respond to this letter. “On October 16, 1998, Bar Counsel sent another letter to respondent and requested for the fifth time that respondent provide, within five (5) days, the financial records itemized in the September 23, 1998 letter. On or about October 28, 1998, respondent sent Bar Counsel a letter and enclosed with this letter copies of bank statements for the trust account for the period January through September 1998 and photocopies of the front and back of canceled checks covered by the statements. “In his letter of October 28, 1998, respondent acknowledged that he deposited personal funds to the trust account.

Respondent falsely stated in this letter that there were no client funds in the account during the period in question. In this letter, respondent also represented that he had deposited funds into the trust account from the sale of property owned by his father. These deposits were made in December 1997 and January 1998. “Respondent represented in the October 28, 1998 letter that he thereafter transferred some of the funds to accounts in his and his father’s name at Crestar Bank. Respondent falsely represented that these accounts were jointly titled. “Bank records obtained pursuant to Bar Counsel subpoena demonstrate that the transactions conducted on June 5, 1998 by Respondent were as follows: Respondent wrote a check in the amount of $2,500 payable to himself on Crestar Bank account number 86405-5684, entitled ‘Ralph Piccola POA Robert D. Powell’; deposited $1,100 of these funds to ⁴⁶⁹ the trust account; deposited $1,200 of these funds to an account at Crestar Bank titled ‘Law Office of Robert D. Powell, P.C.’; and received $200 in cash.

The records reflect that these transactions occurred at approximately 4:05 p.m. Ralph Piccola is the name of the respondent’s late father. “Bank records obtained pursuant to Bar Counsel subpoena also reveal that respondent continued to use the account titled in his late father’s name, an interest bearing money market account, long after his father’s death on or about March 2, 1998. Respondent failed to remove his father’s social security number as the tax identification number on this account. “The bank records also demonstrated that respondent used both the trust account and the account titled in his lather’s name for personal and business expenses, thereby misrepresenting the character and ownership of these accounts in order to avoid the claims of creditors. “Respondent failed to respond in a timely manner to Bar Counsel’s requests for records relating to his trust account. “Respondent failed to open an estate to probate the funds remaining in the account titled in his father’s name at the time of his father’s death. “Conclusions of Law “The Court finds clear and convincing evidence that the following Maryland Rules of Professional Conduct (MRPC) were violated: “The respondent deposited earned fees and money he received from his father into a bank account he titled as an attorney trust account. He used this account for personal and business purposes.

Such conduct constitutes clear and convincing evidence of commingling in violation of both MRPC 1.15(a) and Maryland Rule 16-607. “Not only did respondent misuse his attorney trust account, he also used an account titled in the name of his father for personal and business purposes after his father’s death in March 1998, thereby misrepresenting the owner ⁴⁷⁰ ship of the funds in both these accounts. Even though there were funds in the father’s account at the time of his death, respondent failed to open an estate to probate these assets. This Court finds that respondent engaged in this conduct in an effort to hide assets from creditors’ collection efforts. Such conduct provides clear and convincing evidence that Respondent engaged in conduct involving dishonesty, fraud, deceit and or misrepresentation in violation of MRPC 8.4(c).

Such deceptive and dishonest conduct by a member of the Bar has a negative impact on the image and perception of the legal profession and is clear and convincing evidence that respondent engaged in conduct prejudicial to the administration of justice in violation of MRPC 8.4(d). “When asked to explain the cause of the overdraft on his attorney trust account, the respondent first delayed in providing the requested records and then, in his letter of October 28, 1998, made false statements of material fact to Bar Counsel concerning the transactions conducted on June 5, 1998. His representation that he had a single deposit to make on the morning of Friday, June 5, 1998, which, due to a bank error, did to get credited until the following Monday was shown to be false by the bank’s records which establish that he made two deposits and a cash withdrawal after 4 P.M. on Friday, June 5,1998. There is clear and convincing evidence that respondent violated MRPC 8.1(a) and (b) by knowingly making false representations of material facts and failing to timely respond to demands for information from Bar Counsel.” Throughout Bar Counsel’s investigation, respondent failed to provide Bar Counsel with requested documents related to the trust account and his financial records. After Bar Counsel filed the Petition for Disciplinary Action, respondent filed an answer, but failed to respond to the request for admission of facts and genuineness of documents, interrogatories, or request for production of documents.

It is apparent from the record, findings of fact and conclusions of law that as a result of respondent’s blatant disregard of Bar Counsel’s request for discovery in these proceedings, Judge McGuckian granted the relief sought by Bar Counsel and prohibited respondent from ⁴⁷¹ presenting any evidence at the proceeding. 5 Bar Counsel then introduced into evidence documents marked as Exhibit No. 1, a request for admission of fact and genuineness of documents, and proposed findings of fact and conclusions of law. Judge McGuckian permitted respondent to argue in response to the proposed findings of fact and conclusions of law, but precluded respondent from testifying or otherwise presenting any evidence. Judge McGuckian found that the averments of Bar Counsel in its petition were well supported by Exhibit No. I. 6 The matter was set for a hearing before this Court on February 28, 2002. Neither party filed any exceptions to ⁴⁷² Judge McGuckian’s findings of fact or conclusions of law.

Respondent appeared pro se and addressed the default found by Judge McGuckian. He explained to this Court that he did not satisfy petitioner’s discovery requests because he had not received the motion from Bar Counsel with respect to discovery or Order of July 27th, 2001. He also advised this Court that his medical problems interfered with his participation in this case and that he was prepared to provide discovery and to defend the matter on the merits. In response thereto, this Court deferred a decision in this matter in order to give respondent an opportunity to comply with the discovery requests of Bar Counsel and to file his answers with the Clerk of the Court of Appeals on or before April 22, 2002.

Respondent was advised, by Order of this Court, that in the event he filed the answers within the specified time, this Court would again refer the matter to the Circuit Court for Montgomery County for an evidentiary hearing as to the charges contained in the petition for disciplinary action. Respondent also was advised that if he failed to file the answers within the appropriate time, this Court will proceed to consider the case on the present state of the record and enter its disposition in the matter. On April 23, 2002, one day late, respondent filed his responses to petitioner’s discovery requests. In response thereto, Bar Counsel filed a motion requesting this Court to strike the untimely answers on the grounds that the answers were untimely, incomplete, not in compliance with the rules governing discovery, evasive, and in one instance,