Attorney Grievance Commission v. Powers

ADKINS, Judge. The Attorney Grievance Commission charged Van Stuart Powers, a Maryland lawyer since 1972, with multiple violations of the Code of Professional Responsibility. 1 We referred the matter to Judge G. Hovey Johnson of the Circuit Court for Prince George’s County pursuant to Maryland Rule BV9 b. After extensive fact-finding, Judge Johnson concluded that Powers was guilty of numerous violations of the Code. Although Powers takes issue with some of Judge Johnson’s findings, as to which there was some conflicting evidence, our review of the record persuades us that those findings are all supported by clear and convincing evidence.

We overrule Powers’s exceptions. See, e.g., Attorney Griev. Comm’n v. Harris, 310 Md. 197, 208 , 528 A.2d 895, 900 (1987) (hearing judge’s findings of fact will be sustained if supported by clear and convincing evidence); Attorney Griev. Comm’n v. Parker, 306 Md. 36, 45 , 506 A.2d 1183, 1188 (1986) (same); Attorney Griev.

Comm’n v. Collins, 295 Md. 582, 548 , 457 A.2d 1134, 1142 (1983) (same). ⁴⁸⁶ The transgressions at issue here arose out of three separate and distinct sets of circumstances. The simplest set is that involved in the complaint of Clint A. Lauderdale. At a church benefit auction, Lauderdale had the misfortune to purchase two hours of legal consultation with Powers. As a result, Lauderdale retained Powers to handle two matters, each of a minor and relatively simple nature.

The retainer was paid on 18 November 1983. In one matter, a collection case, Powers waited until about 15 February 1985 to advise Lauderdale that it would not be cost-effective for an attorney to proceed with it. In the other, a minor property damage claim, Powers neglected to file suit for almost two years after receiving the Lauderdales’ check for filing fees. Only after the Lauderdales filed a complaint with the Commission did Powers take action.

In July 1986, Powers filed suit and settled the claim for an amount acceptable to Lauderdale. What we have here, essentially, is neglect and failure to represent a client zealously. Judge Johnson found violations of DR’s 6-101(A)(2), (3) and 7-101(A)(l), (2), (3). The second set of circumstances, more serious and more complex than the Lauderdale affair, is the subject of a complaint initiated by the Commission’s inquiry panel.

It appears that until 1986 Powers maintained several noninterest bearing escrow accounts. At some point in that year, during a casual conversation “with a couple of lawyers at the Old Town Inn,” Powers learned that “lawyers could have interest-bearing accounts.” Without troubling to check further into the matter, for example, by reviewing Maryland Code, Article 10, § 44, 2 Powers proceeded to ⁴⁸⁷ establish interest-bearing accounts, into which he sporadically transferred clients’ money from noninterest bearing ⁴⁸⁸ escrow accounts, intermingling these funds on occasions with his own money. He kept no records by which he could readily identify whose money was being moved around. He removed money from the interest-bearing accounts in a similarly whimsical fashion.

For the most part, he kept the interest himself, although once, when a client demanded it, he attempted to compute the interest on that client’s money and sent it to him. He transmitted no interest to the Legal Services Corporation. See Art. 10, § 44(a)(2), (3). Judge Johnson found violations of Article 10, § 44 and DR 9-102(A), (B).

Finally, we come to the complaint of Mary Shaw. Marge Atwell, a former client of Powers, introduced him to Mary Shaw in July 1982. At that time Atwell and others in her family resided with Shaw and helped care for her. Shaw was an elderly widow, of limited education, and not in the best of health. 3 Shaw wanted a will and generally needed help with her affairs.

Powers first had Shaw execute a power of attorney, naming him as her attorney-in-fact. Next, he had the names of her sister and brother-in-law removed from Shaw’s accounts. These included four certificates of deposit, totalling $35,000, and a checking account. In January 1983 Powers prepared and Shaw executed a declaration of trust naming him as trustee and conveying to him, in that capacity, virtually all of Shaw’s assets (her home and the aforementioned CDs and bank account).

Powers’s management of Shaw’s affairs, as attorney and trustee, was abysmal. He failed to prepare and file income tax returns timely, thus incurring (for Shaw) penalties for the year 1982. He failed to pay 1983 property taxes on the ⁴⁸⁹ house, which was sold at a tax sale on 11 June 1984, and was not redeemed until 18 September 1984, 4 at further expense to Shaw’s estate. His late payment of utilities bills resulted in Shaw’s service being interrupted.

Moreover, he failed to assure (until January 1985) that only he had access to Shaw’s checking account. Atwell and her daughter had induced Shaw to pay them substantial funds from this account. Bank statements for October and November 1984 contained cancelled checks totalling $2,800 written to At-well, her daughter, or both. Powers was unaware of this because he never examined the bank statements with any care and never reconciled them.

In fact, he testified (and confirmed at argument before us) that he did not and does not know how to reconcile a bank statement. In December 1984 receipt of a particularly bulky bank statement prompted Powers to look at it, and he found over $5,000 in checks payable to Atwell, her daughter, or both. After that, he closed the old checking account, but he recovered only $275 from Atwell. 5 Eventually, Shaw’s sister intervened. On 30 October 1985, at the sister’s insistence, Shaw filed a complaint with the Commission.

Powers’s response was to pay himself $1,500 in legal fees — fees for which he never billed Shaw; indeed, he never informed her that he had paid himself. On 26 November 1985 Shaw signed a letter, written by her sister, discharging Powers. Powers prepared an authoriza ⁴⁹⁰ tion to make the necessary arrangements to return her property to her and to deduct therefrom his legal fees. Once again, he paid himself $5,668 for legal fees and $261.83 for costs, without any billing or accounting to Shaw.

He returned to her some $14,500 in cash, as opposed to the over $35,000 he had received from her in January 1983. As part of this winding up process, he cashed prematurely, and without Shaw’s permission, a CD, thereby incurring a penalty of $420.70. The last of Shaw’s money was finally returned to her at the first inquiry panel hearing in this case, in October 1986 — almost a year after Shaw had discharged Powers. The Commission did not charge Powers with actual misappropriation of any of Shaw’s money.

Rather, the complaint was gross mismanagement and neglect of her affairs and funds, failure to represent her zealously, and failure to keep property segregated and to prepare and render appropriate records and accounts, all to the considerable detriment of Shaw. Judge Johnson found violations of DR’s 6-101(A)(l), (2), (3); 7-101(A)(l), (2), (3); and 9-102(B)(3), (4). He also found violations of DR 1-102(A)(1), (4), (5), (6). In his overall conclusion, Judge Johnson additionally determined that Powers had violated DR 1-102(A)(3) (illegal conduct involving moral turpitude). 6 Such an extensive list of serious violations ordinarily would call for the imposition of a most serious sanction.

See, e.g., Attorney Griev. Comm’n v. Marano, 306 Md. 792 , 511 A.2d 512 (1986) (neglect of estate); Attorney Griev. Comm’n v. Cockrell, 304 Md. 379 , 499 A.2d 928 (1985) (neglect, commingling and misappropriation of funds); Bar Ass’n of Balto. City v. Carruth, 271 Md. 720 , 319 A.2d 532 (1974) (commingling and failure to account).

But there are factors here that persuade us not to do so. ⁴⁹¹ When a lawyer’s misconduct is caused by alcoholism, drug addiction, or a mental disorder, the usual sanction is indefinite suspension. See, e.g., Attorney Griev. Comm. v. Reid, 308 Md. 646 , 521 A.2d 743 (1987); Attorney Griev. Comm’n v. Willemain, 305 Md. 665 , 506 A.2d 245 (1986); Attorney Griev.

Comm’n v. Shaffer, 305 Md. 190 , 502 A.2d 502 (1986). This provides the requisite protection for the public, for it prevents the lawyer from practicing law until such time (if ever) that he or she can demonstrate that he or she is free from the effects of the ailment and able to practice competently. At the same time, the lawyer is spared the ultimate sanction of disbarment, a sanction which would be unfair to apply where the lawyer’s conduct is caused by factors beyond his or her control. See Reid, 308 Md. at 651 , 521 A.2d at 745-746 .

This is such a case. Expert witnesses produced by both the Commission and Powers agreed that Powers had been an alcoholic since his youth, that at the time pertinent here, he suffered from alcohol abuse and dependency and from moderately severe depression. Dr. Ellen McDaniel, a psychiatrist testifying for the Commission, explained that in her view, there was “no ... kind of unethical, self-serving pattern,” but rather, that Powers’s misconduct was directly related to alcoholism and depression. Moreover, the medical experts tended to agree that severe psoriasis, a skin disease now in remission, but not at the pertinent times, contributed to Powers’s emotional or psychiatric difficulties, and to his inability to conduct his law practice properly. 7 The sanction to be imposed here is indefinite suspension.

Furthermore, there are factors here that persuade us that we should allow Powers to move to lift the suspension after it has been in effect for 90 days. The picture we have before us is not that of a fundamentally dishonest lawyer, but that of a man beset by serious disorders that rendered him incapable of operating his practice competently. We ⁴⁹² are prepared to permit Powers to resume the practice of law, under appropriate conditions, if he can persuade us that his disorders can likely be overcome, that with proper supervision he can practice without danger to his clients, and that the determinable financial harm he has caused will be remedied. See Reid, supra.

It appears that Powers has abstained from the consumption of alcoholic beverages since the latter part of 1986. Judge Johnson found that since December of that year Powers has faithfully attended Alcoholics Anonymous meetings. Moreover, he is regularly engaged in psychiatric group therapy sessions. All of his treating physicians