Attorney Grievance Commission v. Short

PER CURIAM. The Attorney Grievance Commission, acting through Bar Counsel, filed a petition against Kenneth Dale Short, alleging violations of DR 1-102(A) and DR 9-101(A) and (B) of the Code of Professional Responsibility. We referred the matter, pursuant to Maryland Rule BV9 b to Judge Raymand G. Thieme, Jr., Associate Judge of the Circuit Court for Anne Arundel County, to make findings of fact and ³¹⁹ conclusions of law. After conducting an evidentiary hearing, Judge Thieme made the following findings: “The Petitioner alleges that the Respondent had breached his duties as an attorney by being convicted of a crime that involved misconduct [Md.Code, 1981 Repl.Vol., Art. 10, ¶ 44].

Specifically, the Respondent failed to preserve the identity of funds and property of a client. The essential facts are not in dispute. A copy of the criminal docket sheet indicates that on October 1, 1984, the Respondent was found guilty of misappropriating funds which would have properly escheated to the State. The sentence imposed was suspended and restitution in the amount of $21,210.52 was ordered.

The Respondent does not contest these essential facts. At the hearing herein, the Respondent, as permitted under Maryland Rule BV10(e)(2), introduced mitigating evidence on the circumstances that led to the wrongdoing. The testimony showed that prior to the wrongdoing, Respondent, on the one hand, suffered a disabling heart attack which prevented him from working, while on the other hand, pressure from his financial obligations, over which he had little control, were increasing. He turned to the misappropriation as a means to solve his immediate financial burdens.

The Respondent attempted to justify this conduct by the noting on his records of the estates in question that “loans” were made to him. The Respondent hoped to be able to replace the funds before the absence was discovered. A character witness, Reverend Carroll Kellbough testified that it was his belief that the Respondent was not a criminal and that his actions were not done with an intent to cause deliberate injury to anyone. The Court is satisfied from the demeanor and the behavior of the Respondent in the courtroom that he now clearly recognizes the seriousness of his conduct and he truly repents his wrongdoing.

LAW Under Maryland Rule BV10(e)(l) the final adjudication by a judicial tribunal in another proceeding convicting an attorney of a crime is conclusive proof of the guilt of the ³²⁰ attorney of that crime. The Circuit Court for Baltimore County found the Respondent guilty of the misappropriation of funds belonging to another. Disciplinary Rule 9-102 A and B states: “Preserving Identity of Funds and Property of Client. (A) All funds of clients paid to a lawyer or a law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows: (1) Funds reasonable sufficient to pay bank charges may be deposited therein.

(2) Funds belonging in part to a client and in part presently