Diversion Violation Draws Indefinite Suspension
An attorney who violated conditions of diversion imposed in light of trust accounting lapses has been indefinitely suspended by the Maryland Court of Appeals.
This attorney discipline action involves a lawyer who, while representing her clients in separate legal matters, failed to comply with remedial conditions as required under consecutive Conditional Diversion Agreements (“CDA”) for prior misconduct concerning her trust account; failed to secure safeguards during an illness to ensure a timely appeal for her client or otherwise protect her client’s interests in conformance with the Rules of Professional Conduct; and mismanaged her attorney trust account by repeatedly accumulating negative balances, depositing unearned fees, and maintaining improper record-keeping practices.
Respondent, Erica S. White, a member of the Bar of Maryland, represented Keith Fleming (“Mr. Fleming”) in a divorce and custody matter (“Fleming matter”) and Karma Sewell-Carpenter (“Ms. Sewell-Carpenter”), in a landlord-tenant dispute (“Sewell matter”). Between March 2012 and November 2013, Respondent was under a CDA with Bar Counsel for prior misconduct involving mismanagement of her attorney trust account. Respondent’s CDA was later amended (“Amended CDA”), then subsequently revoked in April 2014 due to Respondent’s non-compliance with the terms of the CDA. (collectively, “CDA matter”).
The process
Conditional diversion in attorney disciplinary matters is distinguishable from the imposition of a sanction. See Attorney Grievance Comm’n v. Cappell, 389 Md. 402, 419- 20, 886 A.2d 112, 122 (2005). Maryland Rule 16-712(b)(3) grants Bar Counsel the authority to “enter into and implement Conditional Diversion Agreements” with attorneys in order to remedy misconduct. An attorney may be eligible for conditional diversion when his or her professional misconduct was not the result of the following: any willful or dishonest conduct, the cause or basis of the misconduct can be resolved through remediation or alternative programs or mechanisms, and the disposition is in the best interest of the public and the attorney’s clients both present and prospective. See id. at 421, 886 A.2d at 123.
The court found documentation of health issues inadequate
A CDA generally serves as a remedial tool to assist attorneys’ compliance with the Maryland Rules and Rules of Professional Conduct. Thus, we share in Bar Counsel’s concern that Respondent’s failure to adhere to the terms under the CDA and Amended CDA, while continuing to engage in conduct which precipitated her CDA, demonstrates a lack of appreciation of the problem.
While we accept the mitigating factor of Respondent’s illness during the relevant period, it does not excuse her admitted ignorance of trust account rules; her failure to remediate her misconduct or adhere to the protocols under consecutive CDAs; her lack of cooperation with Ms. Deady and Bar Counsel while under investigation; or her failure to implement safeguards during an illness or otherwise protect her clients’ interests in conformance with the foregoing Rules. Although, during oral argument, Respondent admitted to experiencing difficulties as her mother’s caretaker until her death, which may have also impacted her practice, we could not ascertain whether this was shared with Bar Counsel or the hearing judge. Accordingly, we order Respondent indefinitely suspended with the right to apply for readmission after six months.
(Mike Frisch)