Attorney Grievance Commission v. Zimmerman

ADKINS, J. The Attorney Grievance Commission of Maryland (“AGC”), acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action (“Petition”) against Respondent Donya Tarraine Zimmerman. Bar Counsel charged Zimmerman with violating several rules and statutes in her capacity as representative of Monique V. Shilling and Deedra L. Danner. Specifically, Bar Counsel alleged that Zimmerman violated Maryland Rules 16-604 (Trust Account — Required Deposits) 1 ¹²⁴ and 16-609(a) (Prohibited Transactions); 2 Maryland Code (1989, 2010 Repl.Vol.), Section 10-306 of the Business Occupations and Professions Article (Misuse of Trust Money); 3 and the following Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”): 4 Rule 1.3 (Diligence); 5 Rule 1.4 (Communication); 6 Rule 1.15(a) and (c) (Safekeeping Property); 7 Rule ¹²⁵ 1.16(d) (Declining or Terminating Representation); 8 and Rule 8.4(b)-(d) (Misconduct). 9 Following a hearing in the Circuit Court for Montgomery County, Judge Louise G. Scrivener issued findings of fact and conclusions of law. With regard to Shilling’s complaint, the hearing judge found that Zimmerman violated MLRPC Rules 1.15(a) and (c), 1.16(d), and 8.4(b)-(d), as well as Maryland Rule 16-609(a)-(c).

With regard to Danner’s complaint, the hearing judge found that Zimmerman violated MLRPC Rules 1.3, 1.4, 1.15(a) and (c), 1.16(d), and 8.4(b)-(d), as well as Maryland Rule 16-609 and Section 10-306 of the Business Occupations and Professions Article. Zimmerman appeared ¹²⁶ before this court on June 11, 2012, and we disbarred her in a per curiam order the next day. We now explain why. Background The hearing judge outlined some background matters: The Respondent, Donya Tarraine Zimmerman, was admitted to the Bar of the Court of Appeals of Maryland in December 2001.

She is not admitted in any other jurisdiction. Since then, she has had a solo practice, primarily handling bankruptcy and family law matters. Her current office is located in Baltimore, but at the time of the matters involved in this Petition, Respondent’s office was in Gaithersburg, Maryland. The hearing judge made the following findings of fact respecting Shilling’s complaint: Respondent began representing Monique Shilling in 2007 or 2008, regarding a modification of child custody and child support.

Ms. Shilling made a number of payments on her bill, the last one being in the amount of $8,000.00, paid on or about May 28, 2010. A portion of that payment was an advance payment of costs and expenses. In July 2010, Ms. Shilling terminated Respondent’s services and requested a refund of the unearned portion of the retainer. Respondent determined that the unearned amount was $805.00.

Respondent returned those funds to Ms. Shilling by a money order on November 15, 2010. During the period of time Respondent represented Ms. Shilling, Respondent only had one escrow account, which was at M & T Bank. Accordingly, Respondent should have been holding at least $805.00 in her escrow account after she received the payment at the end of May 2010 until she refunded that amount in November. Yet, the balance held in her escrow account as of June 1, 2010 was $17.17.

Respondent’s client ledger for Ms. Shilling shows that check no. 1162, dated June 5, 2010, in the amount of $500.00, was credited against Ms. Shilling’s retainer. The payment is described as “IRS payment” on the client ledger. Respon ¹²⁷ dent testified that this check to the United States Treasury was a payment of Respondent’s own business tax obligation. Respondent testified in her deposition that the portion of the payment received from Ms. Shilling on May 28 that reflected advance payment of fees was $1,500.00.

She deposited that amount in her escrow account on June 8, 2010. Assuming that those funds were the Shilling retainer, the balance in the escrow account dropped to $427.07 on June 14. By the end of June, the balance was $2.07. Respondent failed to maintain the unearned portion of Ms. Shilling’s retainer in her escrow account.

Respondent made a number of promises and representations to Ms. Shilling regarding the return of her retainer in e-mail correspondence in the summer and autumn of 2010. On August 5, she promised to mail the balance of the retainer by the end of the following week. On August 23, she promised, “I will put the check in the mail tomorrow with your last billing.” On September 3, 2010, Respondent claimed, “I sent it in the mail by certified mail.” In her deposition, Respondent acknowledged that the mailing of the money order in November was her first attempt to refund the retainer to Ms. Shilling. With respect to Danner’s complaint, the hearing judge found: Respondent began representing Deedra Danner in July 2010.

On July 22, 2010, Ms. Danner signed a retainer agreement and gave Respondent a check in the amount of $2,000.00 as a retainer. Approximately a week later Ms. Danner reconciled with her husband. On July 29, she left Respondent a voice mail message, notifying her that her services would no longer be needed. Respondent returned her call the following day and suggested that she hold the retainer for a month in case Ms. Danner changed her mind.

After a month, Ms. Danner received an invoice indicating that $1,610.00 would be returned, but no check was enclosed. In late October, Ms. Danner contacted Respondent’s office and made an appointment for November 11, 2010 to pick up the check and her client file. That appoint ¹²⁸ ment was ultimately canceled due to Respondent’s representation that she had hurt her back. Respondent did not forward the check or the file to Ms. Danner.

Ms. Danner attempted to recover her retainer by enlisting the efforts of the Fee Dispute Resolution Committee of the Bar Association for Montgomery County. On December 9, 2010, Respondent sent an e-mail to Karen Robbins of the Fee Dispute Resolution Committee, stating that she had sent the payment by money order and would have to have the money order replaced. She claimed that she had sent the money order about two weeks earlier. In her deposition, Respondent could not provide any details regarding the alleged Western Union money order or her attempts to have the money order reissued.

As of the hearing on February 13, 2012, Ms. Danner had never received the $1,610.00 balance of her retainer. The hearing judge made these findings with respect to Respondent’s use of her escrow account: Ms. Danner testified that the Respondent cashed the retainer check at Ms. Danner’s bank, Chevy Chase Bank. The reverse side of the retainer check corroborates that Respondent endorsed the check and presented her driver’s license as identification to cash the check at the drawer’s bank, rather than to deposit the check in her escrow account. The check was cashed on June 22, 2010.

Respondent deposited $2,600.00 in her escrow account on July 25, 2010. There is no notation of the source of funds for that deposit to indicate whether those funds pertain to Ms. Danner. Assuming those funds represent, in part, Ms. Danner’s retainer, the remaining $600.00 from that deposit was disbursed from the account on July 23, 2010, by check no. 1168 for $600.00, which was paid to Respondent’s secretary, Althea Burnett for “pay for week of 7/23/10”. The balance in the escrow account before the June 26 deposit was $47.07.

Accordingly, any additional disbursements from the escrow account in excess of $47.07 were from Ms. Danner’s retainer. Check no. 1169, dated July 27, 2010, in the amount of $150.00, was for “svcs rendered in Danner ¹²⁹ case”. Check no. 1171, dated July 30, 2010, in the amount of $300.00, was also for services in the Danner case. Respondent took a total of $450.00 in fees from Ms. Danner although her invoice indicates the total fee to which she was entitled was only $390.00.

By August 6, the balance in Respondent’s escrow account was $87.17. Disbursements using Ms. Shilling’s funds included payment of Respondent’s malpractice insurance premium (check no. 1172 to AFCO, dated August 2, 2010, for $85.10), $250.00 for dues to the Bar Association of Montgomery County (check no. 1173, dated August 2, 2010, and check no. 1174 dated August 2, 2010), and checks to herself (check no. 1175, dated August 2, 2010 and check no. 1176, dated August 4, 2010). Respondent acknowledges having four overdrafts on her escrow account during September and October 2010. It should be noted that Respondent should have been holding $805.00 for Ms. Shilling and $1,610.00 for Ms. Danner in her escrow account at that time.

Respondent’s escrow account had a negative balance on four occasions in September and October 2010. Her escrow account balance was below the total of $2,215.00 that belonged to Ms. Shilling and Ms. Danner at all times after July 26, 2010 through October 8, 2010, except for August 9. In her response to Bar Counsel regarding the overdrafts, Respondent explained that she failed to wait for deposited items to clear before she drew on those funds. No evidence on this point was presented.

A review of the checks drawn on Respondent’s escrow account shows that she regularly paid her business expenses out of this account. As noted above, Respondent paid her federal taxes with an escrow account check, using funds that belonged to Ms. Shilling. She drew 14 checks on her escrow account to pay her secretary, Althea Burnett from June through September 2010. She also paid bar association dues and malpractice insurance premiums from the escrow account.

On November 5, 2010, Respondent drew a check for “cash” in the amount of $1,100.00 from her escrow account. ¹³⁰ Based on the findings of fact, the hearing judge made the following conclusions of law with respect to Shilling’s complaint: Rule 1.15(a) requires that a lawyer hold property of clients separate from the lawyer’s own property and those funds be kept in an attorney escrow account. The records of Respondent’s bank account show that Respondent did not deposit the check she received from Ms. Shilling on May 28, 2010 in her escrow account. It appears that the unearned portion of that payment, in the amount of $1,500.00, was deposited in Respondent’s escrow account June 8, 2010. From May 28 until June 8, 2010, Respondent failed to hold Ms. Shilling’s funds in her escrow account.

Respondent violated Rule 1.15(a) by her failure to hold Ms. Shilling’s funds in her escrow account during that period of time. Rule 1.15(c) requires that a lawyer deposit advance payments of legal fees and expenses in an escrow account and prohibits the lawyer from withdrawing the funds for her own benefit until earned, absent the client’s informed consent confirmed in writing. At all times after June 8, Respondent should have held at least $805.00 in her escrow account on behalf of Ms. Shilling until she returned those funds to the client in November 2010. In fact, Respondent’s balance in her escrow account was $2.07 as of the end of June 2010.

Respondent drew check no. 1162 on her escrow account to pay her federal tax obligation pertaining to her business. That check was identified on the client ledger for Ms. Shilling as coming from Ms. Shilling’s funds. When the check to the IRS was posted to Respondent’s escrow account on June 14, 2010, the balance remaining in the account was $427.07, substantially less than the amount still belonging to Ms. Shilling. By withdrawing funds belonging to Ms. Shilling for Respondent’s own benefit when those funds had not been earned, Respondent violated Rule 1.15(c) of the [MLRPC].

Rule 1.16(d) of the [MLRPC] requires a lawyer, upon termination of representation, to [take] steps to the extent reasonably practicable to protect a client’s interest, includ ¹³¹ ing refunding any advance payment of fee or expense that has not been earned or incurred. Ms. Shilling terminated Respondent’s services in July 2010. Despite several promises around September to return the unearned balance, Respondent did not do so until November. Respondent’s delay of four months in refunding the balance was unreasonable, particularly in light of the fact that she failed to maintain those funds in her escrow account.

The delay in refunding the unearned portion of the payment to Ms. Shilling was a violation of Rule 1.16(d) of the [MLRPC]. Respondent’s use of the unearned portion of Ms. Shilling’s retainer for her own use, including the payment of taxes to the IRS, was a willful misuse of client funds. The willful misuse of client funds is a violation of section 10-306 of the Business Occupations and Professions Article, Annotated Code of Maryland. Respondent’s blatant misappropriation of Ms. Shilling’s money was a criminal act adversely reflecting on her honesty and trustworthiness in violation of Rule 8.4(b) of the [MLRPC, particularly in light of Respondent’s false promises to mail the check to Ms. Shilling in August 2010 and her later false claim that she had mailed the check.

Respondent’s conduct of misappropriation and misrepresentation to the client violated Rule 8.4(c), conduct involving dishonesty, fraud, deceit or misrepresentation; as well as Rule 8.4(d), conduct prejudicial to the administration of justice. Based on the findings of fact, the hearing judge made the following conclusions of law about Respondent’s use of her escrow account: Respondent received funds from Monique Shilling and Deedra Danner which were advance payment of fees. Respondent did not deposit the checks in her escrow account. She deposited funds in her escrow account after cashing the checks.

At times when the escrow account should have been holding at least $2,215.00 for these two clients, Respondent transferred funds to her checking account, drew checks to herself, paid her secretary her salary on numerous occasions, and paid business expenses related to her law ¹³² practice, including bar association dues, malpractice insurance premiums, and taxes. Respondent violated Rule 1.15(a) of the [MLRPC] by not depositing her clients’ checks directly in the escrow account. She violated Rule 1.15(c) by disbursing funds from her escrow account to pay her business expenses, thereby invading the funds she should have been holding for these clients. Her willful and deliberate use of client funds to pay her own expenses was a misappropriation and misuse of trust funds in violation of section 10-306 of the Business Occupations and Professions Article, as well as criminal conduct in violation of Rule 8.4(b) of the [MLRPC].

Respondent’s misuse of client money was dishonest conduct and was prejudicial to the administration of justice in violation of Rules 8.4(c) and (d). The use of client funds to pay Respondent’s taxes and other business expenses was a use of trust funds for an unauthorized purpose in violation of Maryland Rule 16-609(a). Respondent violated Rule 16-609(b) by drawing a check payable to “cash” in the amount of $1,100.00 on November 5, 2010. Respondent violated Maryland Rule 16-609(c) by having negative balances in her escrow account on four occasions in September and October 2010.

Her failure to maintain a balance of at least $2,215.00, representing the amounts owed to Ms. Shilling and Ms. Danner at almost all times after Ms. Danner’s funds were deposited in July 2010 until the disbursement of funds to Ms. Shilling in November 2010 also constitutes a violation of [Rule 16-609(c) ], which prohibits any disbursement of funds from the escrow account which would create a negative balance with regard to an individual client matter or all client matters in the aggregate. The hearing judge made the following conclusions of law with respect to Danner’s complaint: Respondent’s failure to return the retainer and her failure to respond to her client about the refund is a lack of diligence and communication in violation of Rules 1.3 and 1.4 ¹³³ of the [MLRPC]. Respondent is continuing to violate Rule 1.16(d) by failing to return the retainer and failing to return client documents despite repeated demands. Respondent cashed Ms. Danner’s check rather than depositing it in her escrow account.

It appears that she made a cash deposit which contained those funds three days after she cashed the check. Respondent’s cashing of the check and delay in depositing those funds in her escrow account violated Rule 1.15(a) as well as Maryland Rule 16-604. Respondent subsequently disbursed two checks totaling $450.00 for fees in the Danner case, although her invoice indicates a total earned fee of only $390.00. By taking a fee greater than that earned, Respondent violated Rule 1.15(c).

Respondent continued to use Ms. Danner’s funds which were never earned by making numerous disbursements for business expenses to her. Eventually, the account had negative balances. Ms. Danner has never received a refund. Respondent’s misappropriation of the unearned portion of Ms. Danner’s retainer was willful, dishonest and criminal conduct in violation of Rule 8.4(b), (c) & (d) of the [MLRPC], Maryland Rule 16-609, and section 10-306 of the Business Occupations and Professions Article.

The hearing judge also discussed several potential mitigating factors: Respondent testified that between January and December 2010, her mother was diagnosed with cervical cancer and that Respondent was the person nursing and taking care of her mother. She further testified that later in 2010, her father was diagnosed with prostate cancer and that she also cared for him. While Respondent may well have been burdened with family responsibilities during 2010, those circumstances fail to mitigate use of trust funds for her own business expenses, and dishonesty with her clients when she kept telling them she had sent the money, when in fact she had not. Contrary to Respondent’s argument, the Court does not believe that Respondent’s failure to promptly refund client retainer balances was inadvertent, but rather, was ¹³⁴ because she had spent the money and did not have the money to refund.

Respondent has now formed a loose professional relationship with Mr. Joseph Reid, II. They have no formal arrangement but Respondent deposits client trust funds into Mr. Reid’s trust account and then bills that account for earned fees. Although Respondent testified that she was looking to take some CLE courses, she had not really found a course which focused on managing client trust accounts. Of particular concern to the Court is that Ms. Danner has yet to receive the $1,610.00 owed to her, despite the lapse of almost 20 months and numerous promises[.] Standard of Review As we recently described in London: In attorney discipline proceedings, this Court has original and complete jurisdiction and conducts an independent review of the record.

We accept a hearing judge’s findings of fact unless we determine that they are clearly erroneous. That deference is appropriate because the hearing judge is in a position to assess the demeanor-based credibility of the witnesses. In that regard, the hearing judge is permitted to pick and choose which evidence to rely upon from a conflicting array when determining findings of fact. We review de novo the hearing judge’s proposed conclusions of law.

In other words, the ultimate determination ... as to an attorney’s alleged misconduct is reserved for this Court. In that regard, we examine the record to ascertain whether there was sufficient evidence to support the hearing judge’s legal conclusions, by a clear and convincing standard of proof. Att’y Grievance Comm’n v. London, 427 Md. 328, 47 A.3d 986 (2012). Both parties are permitted to file “(1) exceptions to the findings and conclusions of the hearing judge and (2) recommendations concerning the appropriate disposition....” Md. Rule 16-758(b). ¹³⁵ Exceptions to Findings of Fact Respondent notes six exceptions to the hearing judge’s findings of fact.

First, Respondent notes an exception to this finding: Ms. Shilling made a number of payments on her bill, the last one being in the amount of $3,000, paid on May 28, 2010. A portion of that payment was an advance payment of costs and expenses. Respondent argues that the $3000 was for “replenishment of Ms. Shilling’s retainer account and owed legal fees” and that “only half of the $3000 was used to pay legal fees owed and [the] rest [was] placed into Respondent’s escrow account for future legal fees.” This exception is a non-starter. There is no apparent connection between Respondent’s contention and whether evidence existed to support the hearing judge’s finding.

Second, Respondent notes an exception to this finding: “the balance held in her escrow account as of June 1, 2010 was $17.17.” Respondent argues that this finding “implies that the escrow funds had been depleted as of June 1, 2010 even though Ms. [Shilling’s] fund in the amount of [$1500] was deposited on June 8, 2010.” The hearing judge’s finding was not clearly erroneous. The June 8 deposit could not possibly change the balance on June 1. Respondent seemingly attempts to rewrite history. Third, Respondent notes an exception to this finding: In her response to Bar Counsel regarding the overdrafts, Respondent explained that she failed to wait for deposited items to clear before she drew on those funds.

No evidence on this point was presented. Respondent argues that the deposit slips and bank statements for her trust fund account would confirm this point. We disagree and will not find clear error. In these matters, hearing judges must sort through conflicting evidence and ¹³⁶ make factual findings.

The record is sufficient to support the judge’s findings. Fourth, Respondent excepts to the finding that she has now formed a loose professional relationship with Mr. Joseph Reid, II. They have no formal arrangement but Respondent deposits client trust funds into Mr. Reid’s trust account and then bills that account for earned fees. Respondent argues she has a business relationship with Reid, jointly entering into retainer agreements, working on cases together, and intending to form a law partnership together pending the disposition of this case.

The words chosen by Respondent to characterize her professional relationship with Mr. Reid are perfectly fine. But so are the words used by the hearing judge. It was a professional relationship that was not a partnership, limited partnership, limited liability company, corporation, or other formally organized business or professional relationship. To characterize it as “loose” means just that it was not formalized or defined.

The hearing judge committed no error. Fifth, Respondent excepts to the finding that: Although Respondent testified that she was looking to take some CLE courses, she had not really found a course which focused on managing client trust accounts. Instead, Respondent says she testified that she tried to sign up with a relevant CLE course in the District of Columbia but could not because she was not a member of the D.C. Bar Association. She also tried to find a CLE course offered by the Maryland State Bar Association but averred that such a course is not offered.

Her asserted distinctions are close to frivolous. We see no error. Lastly, Respondent excepts to the finding that: While Respondent may well have been burdened with family responsibilities during 2010, those circumstances fail to mitigate use of trust funds for her own business expenses, and dishonesty with her clients when she kept telling them she had sent the money, when in fact she had ¹³⁷ not. Contrary to Respondent’s argument, the Court does not believe that Respondent’s failure to promptly refund client retainer balances was inadvertent, but rather, was because she had spent the money and did not have the money to refund.

Respondent argues that “she did not intentionally mishandle her trust account nor intentionally fail[ ] to refund Ms. Shilling and Ms. Danner their retainer balances.” Instead, Respondent points out that she testified that she had returned Shilling’s unearned retainer and “had every intention” to return Danner’s. She also says that she testified about caring for her ailing parents, both of whom had cancer during the pendency of the matters in question. She acknowledges that she did not properly manage her escrow account, but says she is taking steps to properly manage it in the