A Matter Of Records

The Maryland Court of Appeals has disbarred an attorney who was suspended for one year in 2017

The misconduct charges outlined in the present matter involve events that preceded Respondent’s suspension. During a period of approximately eight months prior to his suspension, while the disciplinary matter resulting in that suspension was pending, Respondent repeatedly ignored Petitioner’s inquiries and lawful requests for information based on PNC Bank’s reported overdraft in Respondent’s attorney trust account, discussed in detail infra. When Petitioner’s efforts to obtain a response from Respondent proved fruitless, Petitioner filed the additional disciplinary charges that are currently at issue. Petitioner’s action was filed after Respondent was suspended from practicing law. As such, these particular allegations were not before us in crafting our sanction of suspension in the previous Johnson opinion.

The attorney had defaulted and the hearing judge 

The hearing judge concluded that Respondent violated Rule 19- 301.15(a) because he failed to create and maintain records relating to the funds in his attorney trust account. The hearing judge found that this conclusion was supported by “Respondent’s inability to produce such records when [Petitioner] requested him to do so on numerous occasions.” According to the hearing judge, Respondent should have been able to produce proper records, particularly because the Rule specifies preserving records for a minimum of five years.

Failure to cooperate

The hearing judge accepted the averments of the petition and Petitioner’s supporting evidentiary submission, which established that Respondent knowingly failed to respond to Petitioner’s letters dated April 28 and July 12, 2016. Both of these letters sought Respondent’s explanation regarding the overdraft of his PNC trust account and requested records for that account.

Sanction

Respondent’s cumulative violations, discussed supra, warrant disbarment. While awaiting the disposition of his former disciplinary charges that included his lack of responsiveness, Johnson, 450 Md. 621, 150 A.3d 338, Respondent again failed to fully respond to Petitioner’s lawful requests for information, resulting in the present action. As mentioned, the matters at issue were not before us in the previous Johnson opinion, but are considered here as an aggravating factor of prior misconduct.

In aggregate, Respondent’s violations represent a neglect for his professional responsibilities. Respondent’s failure to create and maintain records relating to the funds in his trust account, knowing and repeated failure to respond to Petitioner’s lawful demands for information in a timely manner, and prejudicial conduct towards the legal profession, in conjunction with a number of aggravating factors including prior misconduct, require us to contemplate a sanction that is commensurate with Respondent’s conduct. Attorney Grievance Commission of Maryland v. Walker-Turner, Sr., 428 Md. 214, 233, 51 A.3d 553, 564 (2012). Of note, Respondent failed to participate in the disciplinary hearings in any meaningful way: he failed to file an answer to the Petition for Disciplinary or Remedial Action, resulting in an order of default; he did not move to vacate the order, nor did he appear before the hearing judge or this Court. In crafting a sanction, we must not only consider a sanction that is “commensurate with the gravity and intent of the misconduct[,]” but we must also consider “protect[ing] the public and the public’s confidence in the legal profession[.]” Id. Given the specific facts of the instant case, we believe that the appropriate sanction that protects the public and the public’s confidence in the legal profession and is commensurate with the gravity of Respondent’s violations is disbarment.

(Mike Frisch)