Attorney Grievance v. Milton

Attorney Grievance Commission of Maryland v. Gregory J. Milton, Misc. Docket AG No. 44, September Term, 2018. Opinion by Harrell, J. ATTORNEY MISCONDUCT — DISCIPLINE — INDEFINITE SUSPENSION The Court of Appeals suspended indefinitely Gregory J. Milton from the practice of law in Maryland. Respondent violated Maryland Attorneys’ Rules of Professional Conduct 19-301.15 (Safekeeping Property), 19-303.1 (Meritorious Claims and Contentions), 19- 308.1(b) (Bar Admission and Disciplinary Matters), 19-308.4(a) & (d) (Misconduct), 19- 407 (Attorney Trust Account Record-Keeping), and 19-410 (Prohibited Transactions).

Respondent failed on a number of occasions to provide Bar Counsel with requested information regarding a bona fide investigation into his attorney trust account, failed to provide records to show that he maintained properly his attorney trust account, filed multiple frivolous motions, and made prohibited cash withdrawals from his attorney trust account. Circuit Court for Prince George’s County Case No. CAE18-51024 IN THE COURT OF APPEALS Argued: 6 December 2019 OF MARYLAND Misc. Docket AG No. 44 September Term, 2018 ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. GREGORY J. MILTON Barbera, C.J., McDonald, Watts, Hotten, Getty, Booth, Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned) JJ. Opinion by Harrell, J. Filed: March 3, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2020-03-03 09:08-05:00 Suzanne C. Johnson, Clerk Petitioner, the Attorney Grievance Commission of Maryland (“Commission” or “AGC”), by its Bar Counsel, Lydia E. Lawless, Esq., and Assistant Bar Counsel, Jennifer L. Thompson, Esq., filed charges against Respondent, Gregory M. Milton (“Milton”), pursuant to Md. Rule 19-271.

The charging petition was assigned by us to the Honorable Judge Judy L. Woodall of the Circuit Court for Prince George’s County to conduct the baseline proceedings in this matter. Milton was served with the Petition for Disciplinary or Remedial Action on 5 March 2019 through the Client Protection Fund of the Bar of Maryland, pursuant to Md. Rule 19-723(b).1 Milton failed to answer timely by the stated deadline of 21 March 2019. In lieu, he filed on 8 April 2019 a belated Motion to Extend Time to Respond, requesting an extension until 16 April 2019. His motion was granted.

Yet, he failed to answer timely the petition by that date as well. The Commission filed a motion for order of default, which was granted. Thereafter, Milton requested another extension of time to 1 Md. Rule 19-723(b) provides: a) Alternative Service. If after reasonable efforts the attorney cannot be served personally, service may be made on the attorney by serving the employee designated by the Client Protection Fund pursuant to Rule 19- 604, who shall be deemed the attorney’s agent for receipt of service.

The employee promptly shall (1) send, by certified and first-class mail, a copy of the papers so served to the attorney at the attorney’s address maintained in the Fund’s records and to any other address provided by Bar Counsel, and (2) file a certificate of the mailing with the clerk and send a copy of the certificate to Bar Counsel. respond to the petition, which was denied. On 10 June 2019, Milton filed a motion to dismiss the Commission’s petition and vacate the order of default.2 An evidentiary hearing before Judge Woodall was scheduled for 8 July 2019. At its inception, the court found that Milton’s failure to answer timely the petition was unjustified and denied his motion to vacate the order of default. Bar Counsel entered into evidence first a notice the AGC received from Capital One Bank (the “Bank”) alerting it to the possibility of an overdraft from Milton’s attorney trust account.

Bar Counsel followed that with copies of the numerous letters and emails sent to Milton requesting financial information and documents to facilitate investigation into the handling of his trust account during the relevant period. A written response by Milton to Bar Counsel’s initial request for information was entered also, in which Milton stated there had been no overdraft because it was the Bank’s error that resulted in the notice being sent. Accompanying his letter were bank statements from Capital One Bank that brought to Bar Counsel’s attention possible other violations in the form of “customer withdrawals” from the account (“Petitioner’s Exhibit 4”). Other than his initial response, the only other evidence of “compliance” with his duty to cooperate with the inquiry and subsequent investigation was a single email from Milton, Petitioner’s Exhibit 9, in which he stated 2 By operation of Md. Rules 19-724(c), 2-613, and 2-323(e), the factual averments in Bar Counsel’s Petition for Disciplinary or Remedial Action are deemed admitted by a respondent against whom an order of default is entered.

See Attorney Grievance Comm’n v. De La Paz, 418 Md. 534 (2011); Attorney Grievance Comm’n v. Lee, 390 Md. 517 (2006). 2 again that he did not need to produce further documents as the Bank’s error was to blame for the overdraft notice. Petitioner’s Exhibits 13-19 and 24 were an amalgam of two petitions filed by Milton to quash Bar Counsel’s records subpoena of Capital One Bank regarding his trust account records, Bar Counsel’s opposition to the petitions, and the orders of the circuit court denying both of Milton’s petitions. Finally, Bar Counsel entered, in addition to its correspondence to Milton, a spreadsheet prepared by the Office of Bar Counsel analyzing the “customer withdrawals” on the bank records (part of Petitioner’s Exhibit 4) as “cash withdrawals.” Judge Woodall issued her written Findings and Conclusions on 8 August 2019. She concluded that Milton violated the following Maryland Attorneys’ Rules of Professional Conduct (“MARPC”): (1) Rule 19-301.15; (2) Rule 19-303.1; (3) Rule 19- 308.1(b); (4) Rule 19-308.4(a) & (d); (5) Rule 19-407; and (6) Rule 19-410.

The Commission filed with us no exceptions to Judge Woodall’s Findings and Conclusions and recommended that this Court suspend indefinitely Milton from the practice of law, noting that, because he is a repeat violator of the MARPC, “[r]espondent does not or will not grasp that his misconduct is inconsistent with his professional obligations.” See Attorney Grievance Comm’n v. Marcalus, 442 Md. 197, 211 (2015) (holding that the respondent “demonstrated that he is extremely likely to repeat his misconduct, no matter how many times this Court suspends him from the practice of law in Maryland”). Milton filed timely written exceptions to Judge Woodall’s Findings and 3 Conclusions. For the following reasons we overrule Milton’s exceptions and hold that his violations of the MARPC warrant indefinite suspension. FINDINGS OF FACT Satisfied that the Office of Bar Counsel met the clear and convincing standard of evidence required of it in attorney disciplinary cases, the hearing judge marshaled the following facts, which we rephrase and summarize.

Milton was admitted to the Maryland Bar on 13 December 2006. He maintained his law office in Prince George’s County. On 21 July 2017, Capital One Bank contacted Milton, notifying him that his attorney trust account maintained with the Bank had become overdrawn on 30 June 2017. Upon receiving the Bank’s concurrent notice to it of the supposed overdraft, the Office of Bar Counsel, by letter dated 1 August 2017, requested of Milton that he produce (within 10 days) copies of his client ledgers, deposit slips, cancelled checks, and monthly bank statements for May 2017 through July 2017.

Bar Counsel called to Milton’s attention in its letter that Rule 19-308.1 required Milton to comply with lawful demands of Bar Counsel. Milton received the letter on 7 August 2017. In his August 18 reply, Milton, referring to claimed irregularities by Capital One Bank that resulted in the overdraft, disclaimed any personal responsibility for the episode. Attached to his response were copies of certain bank statements relative to his trust account.

Rather than provide any of the other information requested by Bar Counsel, 4 Milton claimed the production of the breadth of further documents sought by Bar Counsel was unnecessary, stating that “given the Bank’s additional documentation evidencing the irregularity with their own ledger, and records . . . the issue is clearly an irregularity with a Bank Teller, which I clearly cannot control.” 3 Unfortunately for Milton, the bank statements he provided reflected that he made seven “customer withdrawals” from the trust account over the three month period totaling $4,050.00, in amounts varying from $200.00 to $1,000.00. Bar Counsel sent Milton a follow-up letter, dated 21 September 2017, renewing its request for copies of his client ledgers, deposit slips, cancelled checks, and, additionally, an electronic transfer log for the previously stated period. Milton did not respond to this request. Bar Counsel informed Milton on 24 October 2017 that the matter had been docketed for investigation, requesting anew the earlier requested documents be provided within 15 days.

Once again, Milton observed a vow of silence. Following Bar Counsel’s fourth attempt (13 November 2017) requesting Milton’s cooperation and reminding him of his obligation to respond, Milton sent a letter, dated 22 November 2017, claiming to have “lost track” of the earlier correspondence from Bar Counsel and again claiming that the production of further documents was unnecessary as the overdraft was a result of the Bank’s ineptitude. Consequently, he produced none of 3 Although Milton produced bank statements for the requested time period, he failed to produce copies of client ledgers, deposit slips, and/or cancelled checks. 5 the additional documents sought. He renewed his view that further investigation was unwarranted.

On 7 December 2017, Bar Counsel informed Milton that, as a result of his refusal to provide the requested documentation, it planned to subpoena the requested records from Capital One Bank (or as much of the requested records as may be in the Bank’s possession). Bar Counsel noted also that Milton’s cash/customer withdrawals from the attorney trust account (noted on the bank statements supplied by Milton with his 18 August 2017 letter) were prohibited by Rule 19-410 and expanded its request for copies of his client ledgers to the period from January 2017 through November 2017. Milton failed again to provide the requested documents, although he accepted service on 18 December 2017 of his copy of the investigative subpoena to the Bank. In its last-ditch efforts to elicit information, Bar Counsel contacted Milton regarding his incomplete and absent responses, once by email on 30 December 2017 and another by letter dated 8 January 2018.

The letter set a deadline of 19 January 2018 for Milton to respond and provide the requested documentation. If for no apparent reason other than consistency, Milton failed to respond directly. He took a different tact however. On 9 January 2018, Milton filed a Petition to Quash.

In his petition, Milton claimed he had not committed misconduct and that there was no good faith basis on which to seek the requested bank records through the subpoena. Further, he maintained that the financial documents requested by Bar Counsel had been denied in a prior, 6 unrelated, proceeding in the Circuit Court for Montgomery County. There was no challenge in the petition to Bar Counsel’s legal authority to issue the subpoena. Bar Counsel filed an Opposition to the Petition to Quash and a Motion to Enforce Subpoena4 on 24 January 2018, arguing that Milton’s refusal, coupled with evidence of the impermissible cash withdrawals, demonstrated that the subpoena was necessary to further its investigation.

The petition to quash was denied on 26 February 2018. The court found that Milton’s argument “strain[ed] credulity and logic” and stated that “there is every possibility [that] the documents and records sought by the Commission’s subpoena will produce evidence relevan[t] to the general subject matter of the Commission’s investigation in this matter.” Milton filed an amended petition to quash on 9 March 2018, claiming Bar Counsel’s investigation was based on “pure supposition.” Again, Milton did not advance any assertion that Bar Counsel did not have authority to request such a subpoena. Petitioner filed its opposition on 23 March 2018. The amended petition to quash was denied, with the court finding that “Bar Counsel [] act[ed] within its mandate,” and that it “has not engaged in conjecture or supposition and is carrying out its investigative responsibilities.” 4 See Md. Rule 19-712(e). 7 Bar Counsel received the subpoenaed trust account records from Capital One Bank in March 2018.

It requested that Milton provide copies of his client ledgers by 3 April 2018. Attached to this letter was a list of specific and suspect trust account transactions. Bar Counsel requested Milton to identify the related client matter for each transaction. A constant Milton failed to respond to the letter.

Bar Counsel wrote another letter on 13 April 2018, requesting the materials, but to no avail. CONCLUSIONS OF LAW As a result of her findings of fact, the hearing judge rendered the following conclusions of law: This Court finds, by clear and convincing evidence, that Respondent violated the following Maryland Rules and Maryland Attorneys’ Rules of Professional Conduct. Additional factual findings are set forth in this section as necessary, to explain the Court’s conclusions. Rule 19-301.15.

Safekeeping Property (1.15). Rule 19-3-1.15 provides, in part: (a) An attorney shall hold property of clients or third persons that is in an attorney’s possession in connection with a representation separate from the attorney’s own property. Funds shall be kept in a separate account maintained pursuant to Title 19, Chapter 400 of the Maryland Rules, and records shall be created and maintained in accordance with the Rules in that Chapter (emphasis added). Other property shall be identified specifically as such and appropriately safeguarded, and records of its receipt and distribution shall be created and maintained.

Complete records of the account funds and of other property shall be kept by the attorney and shall be preserved for a period of at least five years after the date the record was created (emphasis added). 8 Respondent’s failure to create and maintain client matter records that reflect the receipt, maintenance, and disbursement of client funds in association with his attorney trust account violated Rule 19-301.15(a). Respondent failed to produce any records after repeated requests to do so. Rule 19.303.1. Meritorious Claims and Contentions (3.1).

Rule 19-303.1 provides: An attorney shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes, for example, a good faith argument for an extension, modification or reversal of existing law. An attorney may nevertheless so defend the proceeding as to require that every element of the moving party’s case be established. Pursuant to M[d.] Rule 19-703(b), Bar Counsel is charged with investigating “professional misconduct or incapacity on the part of an attorney,” which includes the issuance of investigative subpoenas. See 19- 703(b)(2).

Pursuant to M[d.] 19-712(a)(1), upon authorization of the Chair of the Attorney Grievance Commission, Bar Counsel may issue an investigative subpoena to “compel the attendance of witnesses and the production of designated documents or other tangible things at a time and place specified in the subpoena if the Chair finds that (A) the subpoena is necessary to and in furtherance of an investigation being conducted by Bar Counsel.” Respondent knowingly and repeatedly failed to provide Bar Counsel with the financial information and documentation sought during the investigation into the trust account overdraft. By letter dated December 7, 2017, Bar Counsel advised Respondent that “[i]n light of your refusal to provide Bar Counsel with your attorney trust account records, we intend to issue a subpoena to Capital One Bank.” Petitioner’s Ex[hibit] 10. In addition, Bar Counsel made Respondent aware of the investigation into the impermissible cash withdrawals. On January 9, 2018, Respondent filed the Petition to Quash in the Circuit Court for Prince George’s County, seeking to quash Bar Counsel’s investigative subpoena.

In the Petition to Quash, Respondent omitted any mention of the true reasons for the issuance of the subpoena. Instead, Respondent put forth the unsupported argument that because Capital One 9 Bank erroneously reported an overdraft of Respondent’s trust account, Bar Counsel issued the subpoena without a “good faith basis.” The Petition to Quash was not supported by fact or law. Respondent’s conduct violated Rule 19-303.1. See Comment [2] to Rule 19-303.1 (“[t]he action is frivolous, however, if the attorney is unable [] to make a good faith argument on the merits of the actions taken”); Attorney Grievance Comm[’]n v. Phillips, 451 Md. 653 [] (2017).

On February 26, 2018, the Circuit Court for Prince George’s County rejected Respondent’s arguments and denied the Petition to Quash. The court determined that Bar Counsel’s investigative subpoena was reasonable under the circumstances and that there was “every possibility the documents and records sought by the Commission’s subpoena will produce evidence relevant to the general subject of the Commission’s investigation.” Cognizant that the court rejected his arguments to quash the subpoena, on March 9, 2018, Respondent nevertheless filed an Amended Petition to Quash Bar Counsel’s investigative subpoena advancing similar claims. Respondent’s Amended Petition to Quash failed to assert any credible argument that Bar Counsel lacked the legal authority to issue the investigative subpoena. Respondent’s conduct violated Rule 19-303.1. [Rule 19-308.1 Bar Admission and Disciplinary Matters (8.1).] [Rule 19-308.1] provides in part: An applicant for admission or reinstatement to the bar, or an attorney in connection with a bar admission application or in connection with a disciplinary matter, shall not: (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority (Emphasis added), except that this Rule does not require disclosure of information otherwise protected by Rule 19-301.6 (1.6).

Respondent violated Rule 19-308.1(b) by repeatedly failing to respond to Bar Counsel’s letters or supply the financial documentation requested. By letter dated August 1, 2017, in response to a trust account overdraft notice received from Capital One Bank, Bar Counsel wrote Respondent and requested (among other things) copies of his “client ledgers, deposit slips, cancelled checks (front and back, if available),[”] and monthly bank statements for the period of “May 2017 to the present.” While Respondent 10 provided the requested bank statements, he failed to provide the remainder of the documentation. On September 21, 2017, Bar Counsel wrote to Respondent and again requested copies of his “client ledgers, deposit slips, cancelled checks (front & back, if available)” for the period of “May 2017 through July 2017.” In addition, Bar Counsel requested Respondent’s electronic transfer log for the period requested. Respondent failed to provide the requested materials or otherwise respond to Bar Counsel’s letter.

On October 24, 2017, Bar Counsel wrote Respondent and requested a response to the September 21, 2017 letter, including the requested financial documentation. Respondent failed to provide the requested materials or otherwise respond to Bar Counsel’s letter. On November 13, 2017, Bar Counsel wrote to Respondent and requested a response to Bar Counsel’s letters from September 21st and October 24th. While Respondent supplied a written response to the letters on November 22, 2017, he failed to supply the requested financial documentation.

By letter dated December 7, 2017, Bar Counsel requested copies of Respondent’s client ledgers required to be maintained pursuant to [] Rule 19-407(a)(3) for the period of January 2017 through November 2017. Respondent failed to supply the requested documentation. On December 30, 2017, Bar Counsel emailed Respondent and asked whether he intended to comply with Bar Counsel’s earlier request for his client ledgers. Respondent failed to respond in any manner.

On January 8, 2018, Bar Counsel wrote to Respondent and again requested copies of his client ledgers. Bar Counsel informed Respondent that if he did not maintain client ledgers, he should so advise Bar Counsel. Respondent failed to respond to the letter or otherwise provide copies of his client ledgers. Instead, on January 9, 2018, Respondent filed in the Circuit Court for Prince George’s County, a Petition to Quash Bar Counsel’s investigative subpoena.

On March 19, 2018, after reviewing Respondent’s attorney trust account records, received from Capital One Bank, Bar Counsel wrote to Respondent and requested that he provide copies of his client ledgers for the period of January 2017 through January 2018. With the letter, Bar Counsel attached a list of trust account transactions and requested Respondent identify the client to which each transaction related. Respondent failed to respond to 11 the letter or otherwise provide the requested financial materials. On April 13, 2018, Bar Counsel wrote Respondent and requested a response to Bar Counsel’s letter of March 19, 2018.

Respondent failed to respond to the letter or otherwise supply the requested materials. From August 1, 2017 through April 13, 2018, Bar Counsel made nine (9) separate lawful requests to Respondent for information and documentation related to his attorney trust account. Respondent knowingly failed and refused to provide Bar Counsel the materials sought, in violation of [] Rule 19-308.1(b). Rule 19-308.4.

Misconduct (8.4). Rule 19-308.4 provides, in part: It is professional misconduct for an attorney to: (d) engage in conduct that is prejudicial to the administration of justice; Respondent’s refusal to cooperate with Bar Counsel or comply with Bar Counsel’s requests for information and documentation (as detailed above) and Respondent’s filing of two (2) petitions to quash Bar Counsel’s investigative subpoena, violates Rule 19-308.4(d). See Attorney Grievance Comm[’]n v. Phillips, 451 Md. 476, 490 [] (2017) (in refusing to cooperate with Bar Counsel and by filing a frivolous motion to quash an investigative subpoena, attorney obstructed Bar Counsel’s investigation in a manner prejudicial to the administration of justice, and his conduct as a whole brought the legal profession into disrepute, in violation of Rule 8.4(d)); Attorney Grievance Comm[’]n v. Kremer, 432 Md. 325, 337 [] (2013) (attorney violated Rule 8.4(d) by failing to respond to Bar Counsel’s requests for information). Additionally, Respondent violated Rule 8.4(a) by violation of several other Rules of Professional Conduct.

See Attorney Grievance Comm[’]n v. Gerace, 433 Md. 632, 645 [] (2013) (“Rule 8.4(a) is violated when other Rules of Professional Conduct are breached.”) Maryland Rule 19-407. Attorney Trust Account Record-Keeping. M[d.] Rule 19-407 provides, in part: 12 (a) Creation of Records. The following records shall be created and maintained for the receipt and disbursement of funds of clients or of third persons: (3) Client Matter Records.

A record for each client matter in which the attorney receives funds in trust, as follows: (A) for each attorney trust account transaction, a record that shows (i) the date of the deposit or disbursement; (ii) the amount of the deposit or disbursement; (iii) the purpose for which the funds are intended; (iv) for a disbursement, the payee and the check number or other payment identification; and (v) the balance of funds remaining in the account in connection with the matter[.] Respondent’s failure to create and maintain client matter records that reflect the receipt, maintenance, and disbursement of client funds in association with his attorney trust account violates M[d.] Rule 19-407(a). Respondent failed to produce any records that would indicate the creation and maintenance of the requested client records. Maryland Rule 19-410. Prohibited Transactions.

M[d.] Rule 19-410 provides, in part: (b) No Cash Disbursements. An instrument drawn on an attorney trust account may not be drawn payable to cash or to bearer, and no cash withdrawal may be made from an automated teller machine or by any other method. All disbursements from an attorney trust account shall be made by check or electronic transfer. From May 2017 through July 2017, Respondent made several withdrawals in cash from this attorney trust account in the following installments: Date Amount May 10, 2017 $1,000.00 June 19, 2017 $500.00 July 3, 2017 $1,000.00 13 July 26, 2017 $500.00 July 28, 2017 $200.00 July 31, 2017 $350.00 July 31, 2017 $500.00 Respondent’s conduct violated Rule 19-410.

STANDARD OF REVIEW In attorney grievance proceedings, the findings of fact of the hearing judge are “prima facie correct and will not be disturbed unless they are shown to be clearly erroneous.” Attorney Grievance Comm’n v. Harrington, 367 Md. 36, 49 (2001). Moreover, when neither party takes exception to a finding of fact it is considered “by us as conclusively established.” Attorney Grievance Comm’n v. White, 448 Md. 33, 50 (2016). When a party has filed an exception (or exceptions), however, we determine whether the findings of fact are proven by the standard of proof demanded by Md. Rule 19-727(c), which states that “Bar Counsel has the burden of proving the averments of the petition by clear and convincing evidence. If the attorney asserts an affirmative defense or a matter of mitigation or extenuation, the attorney has the burden of proving the defense or matter by a preponderance of the evidence.” The findings of fact will not be found to be clearly erroneous if they are supported by “any competent material evidence.” Attorney Grievance Comm’n v. McDonald, 437 Md. 1, 16 (2014).

We 14 review conclusions of law made by the hearing judge without deference. Attorney Grievance Comm’n v. Whitehead, 405 Md. 240, 253 (2008). DISCUSSION Bar Counsel did not except to the hearing judge’s findings of fact or conclusions of law. Respondent, however, took at least four itemized exceptions to the findings of the hearing judge.

Further, Respondent appears to take a fifth exception to the judge’s findings, although not labeling it as such. At the outset, we will address the non-itemized, implied exception Milton appears to mount. This “exception” is based on his interpretation of Md. Rule 19-413. The Rule states: Upon receipt of a report of overdraft on or dishonored instrument drawn on an attorney trust account, Bar Counsel shall contact the attorney or law firm maintaining the account and request an informal explanation for the overdraft or dishonored instrument.

The attorney or law firm shall provide any records of the account necessary to support the explanation. If Bar Counsel has requested but has failed to receive a satisfactory explanation for any overdraft or dishonored check, or if good cause exists to believe that an attorney or law firm has failed to perform any duty under