No Dishonesty, Lesser Sanction

The Maryland Court of Appeals has imposed an indefinite suspension with the right to reapply in six months in a case involving misappropriation of entrusted funds.

As is often the case, the fighting issue before the court was the level of the attorney’s intent. The court affirmed the hearing judge’s conclusion that the attorney was negligent.

The court also affirmed the finding that the attorney’s conduct did not violate Rule 8.4(c)(conduct involving dishonesty).

A concurring opinion by Judge Harrell, joined by Judge Battaglia, expressed concern about the state of the record on the dishonesty issue

I join reluctantly the Court’s opinion. Although I can find no fault with the opinion, I write separately to note that, on this record, although no MLRPC 8.4(c) violations were proved, I am left to wonder whether such a violation occurred. Under the circumstances, to doubt is to affirm the hearing judge. Nonetheless, I wish to highlight the basis of my mixed emotions for consideration in the prosecution of future cases.

Judge Harrell noted the dearth of evidence presented by the parties concerning the circumstances of three cash withdrawals from escrow, which he concludes were “highly suggestive” of intentional misappropriation.

…we are left to swallow the hearing judge’s Findings of Fact and Conclusions of Law that inferentially the cash withdrawals were just another result of the pervasive negligent conduct of Mungin in this case. Thus , I am constrained to concur in the Court’s opinion that Bar Counsel failed to prove the alleged MLRPC 8.4(c) violations, as the hearing judge concluded.

(Mike Frisch)