Attorney Grievance Commission v. Zuckerman

HARRELL, J.,

dissents.

I dissent because I do not believe the sanction imposed in the Majority opinion is commensurate with our treatment of past cases involving misconduct most analogous to that present in this case. In short, the Majority’s minimum “sit-out time” for the Respondent is too short in duration.

As a foundational point of reference, it bears repeating that “[t]he purpose of these proceedings is not to punish the lawyer, but any sanction imposed should deter other lawyers from engaging in similar misconduct.” Attorney Grievance Comm’n v. Stolarz, 379 Md. 387, 402, 842 A.2d 42, 50 (2004) (citing Attorney Grievance Comm’n v. Mooney, 359 Md. 56, 96, 753 A.2d 17, 38 (2000)). We protect the public by preventing future attorney misconduct only when the sanctions imposed “are commensurate with the nature and gravity of the violations and the intent with which they were committed.” Id. (citing Attorney Grievance Comm’n v. Awuah, 346 Md. 420, 435, 697 A.2d 446, 454 (1997)).

The determination of what sanction is commensurate is made often (but not exclusively) by contrasting and comparing the case at hand with prior cases of varying degrees of similarity. My review of more recent attorney grievance cases sharing similar characteristics to the present one indicates that a more stringent sanction is more appropriate than is imposed by the Majority opinion, both to deter generally other lawyers from similar misconduct and to deter specifically an individual lawyer from future transgressions. Attorney Grievance Comm’n v. DiCicco, 369 Md. 662, 686, 802 A.2d 1014, 1027 (2002) (quoting Attorney Grievance Comm’n v. Garfield, 369 Md. 85, 98, 797 A.2d 757, 764 (2002) (citations omitted)).

*381In Attorney Grievance Comm’n v. Sperling, 380 Md. 180, 844 A.2d 397 (2004), we ordered an indefinite suspension with a right to re-apply no sooner than ninety days. In Sperling, a $42,415.91 shortfall in the attorney’s trust account was discovered. We held that Sperling violated Maryland Rules of Professional Conduct (MRPC) 1.15 (Safeguarding property) and 8.4(a) (Misconduct), and § 10-306 of the Business Occupations and Professions Article, Md.Code (1989, 2000 Repl.Vol.), due to his failure to reconcile his trust account. No client complaints instigated the investigation. The misappropriation was deemed unintentional. There was no evidence of any theft of funds by anyone, no evidence of client loss from the shortfall of funds, and no additional errors were discovered after the initial shortfall. Id. at 185, 844 A.2d at 400.

Although we took into consideration as mitigation in Sperling that the misappropriation was unintentional, the attorney’s remorse, and his cooperation with Bar Counsel (to correct the shortfall and accounting problems in his practice), we noted that the shortfall was “quite serious” because it was “in particular one so large.” Id. at 192, 844 A.2d at 404. In assessing Sperling’s sanction, we acknowledged Bar Counsel’s warning that Sperling’s failure to manage his attorney trust account for several years exposed his clients to risk over that lengthy period. In addition, Bar Counsel argued that the length of time — from May 2002 to January 2003 — between when Sperling became aware of the shortfall and when he corrected the balance supported a sanction of indefinite suspension, with a right to reapply no sooner than six months. In settling instead on a ninety day minimum sit-out period, we also rejected Sperling’s request for a reprimand, in part because, in a similar set of circumstances, an attorney without a prior disciplinary history in another case received an indefinite suspension with a right to reapply no sooner than ninety days. Id. at 192-93, 844 A.2d at 405 (citing Attorney Grievance Comm’n v. Dicicco, 369 Md. 662, 802 A.2d 1014 (2002)).

We suspended DiCicco for numerous violations of MRPC 1.15(a) and 8.4(a) after he repeatedly used his attorney escrow *382account for his personal interests.1 Attorney Grievance Comm’n v. Dicicco, 369 Md. 662, 675-76, 802 A.2d 1014, 1027 (2002). The hearing judge in DiCicco noted that there were at least eleven instances of misconduct involving different clients (unexplained low and negative balances from 1997 to 1999) and disbursement checks from DiCicco’s attorney trust account that appeared to be unrelated to any of his clients’ matters. Id. at 670-71, 802 A.2d at 1018-19. In ordering his indefinite suspension with a right to seek reinstatement no sooner than ninety days, we considered several mitigating factors. Among them was a lack of evidence that any client suffered a financial loss from DiCicco’s misconduct, which misconduct lacked any fraudulent intent. Id. at 688, 802 A.2d at 1028. We noted that DiCicco had no record of prior disciplinary problems in his then thirty-eight year membership in the Maryland Bar. Id.

At the lesser end of the sanction spectrum from Sperling and DiCicco is Attorney Grievance Comm’n v. Adams, 349 Md. 86, 706 A.2d 1080 (1998). In Adams, we reviewed an attorney’s misconduct regarding his attorney operating account and involving but a single client. We ordered an indefinite suspension with a right to reapply no sooner than thirty days. Adams represented his client before the Comptroller of the Treasury in negotiating an outstanding tax delinquency. Id. at 91, 706 A.2d at 1082. After settling on a $2,000.00 payment to the Comptroller, Adams drafted a check from his attorney operating account to pay this amount. This check was returned for insufficient funds because Adams’ client had not given him $2,000.00 to pay the Comptroller and the attorney’s operating account had a negative balance at the time the check was drafted. Adams subsequently received funds from the client, albeit in an amount insufficient to pay fully the negotiated tax bill. Adams deposited these funds into his operating account and supplemented them with money from sources unrelated to the particular client’s representa*383tion. We held that Adams’ conduct violated MRPC 1.15(a) and Maryland Rule 16-604.

In arriving at the appropriate sanction, we observed that Adams’ handling of the client’s money was “sloppy and negligent,” but unintentional. Id. at 98, 706 A.2d at 1086. We credited as mitigating factors Adams’ lack of a prior disciplinary record and that the funds provided by the client ultimately were received by the Comptroller.2

Even further along the sanction spectrum is Attorney Grievance Comm’n v. Stolarz, 379 Md. 387, 842 A.2d 42 (2004). In Stolarz, we held that an attorney, with no history of past disciplinary infractions before this Bar for twenty-three years, negligently violated MRPC 1.15(b) when he failed to pay one creditor of a client $300.00 out of the client’s settlement proceeds.3 Id. at 391-94, 842 A.2d at 44-45. We observed that Stolarz’s unintentional negligence (failing to note the assignment in the client’s file when he disbursed the settlement proceeds; moreover, the client failed to draw his attention to the missing payment) may be better disposed of, upon remand, by termination of the investigation with a warning to Respondent, thereby deterring future, repeated transgressions. Id. at 405, 842 A.2d at 50. We noted that Stolarz made only one mistake (of a relatively small amount) with one client that impacted only one assignee of that client. Stolarz ultimately paid the client’s assignee from his own funds and expressed remorse for his error. Id.

Against this backdrop, I turn to the appropriate sanction in this case. Zuckerman was first alerted to the gravity of his employee’s misappropriation of funds in July of 2002 when he received an anonymous tip. His part-time investigation into the extent of the damage began in October 2002, but was not *384completed until August 2004. The investigation revealed impacts affecting sixty clients. His response to his own unfortunate accounting practices and the theft was considerably slower than Sperling, who took “only” nine months to assess and correct the discrepancy there. Bar Counsel’s independent investigation in Zuckerman’s case uncovered 109 clients with negative balances between 1998 and 2002 — indicating the widespread scope of the accounting problems from Zuckerman’s irresponsible business practices. Many of these clients’ accountings had negative balances before Ms. Becker defrauded Zuckerman in May 2002. Arguably, if it were not for Ms. Becker’s theft, Zuckerman would have been unaware of these negative client balances in his attorney trust account and would have continued his improvident conduct indefinitely.

The sum total of funds at risk throughout this period was ' $311,898.11, based on cheeks drawn on his trust account to clients before funds belonging to those clients were deposited in his trust account. This recipe for disaster reached its nadir on 16 March 2000 when he disbursed $21,997.96 on behalf of thirty-four clients, at a time when he had a negative account balance of $363.13. Zuckerman readily admitted that he issued client checks on an “entitlement” basis, rather than waiting for the settlement proceeds to be deposited and completion of the appropriate waivers and accounting statements. Although he periodically did no more than “rob Peter to pay Paul,” sometimes for short periods,4 he routinely advanced money rightfully belonging to other clients to satisfy different clients he felt were “entitled” to their money. Zuckerman’s attempts at justifying this ongoing violation of the Maryland Rules of Professional Conduct regarding the safekeeping of client property are unavailing.

Zuckerman, as a matter of routine practice, also did not distribute funds in timely fashion to third party medical providers and thereby violated MRPC 1.15(b). He claims as *385his defense that he did not pay these providers because he was waiting for personal injury protection insurance coverage issues “to resolve.” This routine practice left at least $144,000.00 in limbo over a period of at least three years.5 In order to correct this situation, it took Zuckerman until December 2004 to pay the medical providers their money.6

By comparison, in DiCicco we sanctioned the attorney for negligent transgressions that impacted perhaps eleven clients, without a conclusive holding as to the amount of funds in question, by imposing an indefinite suspension with a right to reapply no sooner than ninety days. Sperling received the identical sanction, notwithstanding the lack of a specific holding as to the number of clients whose funds were misappropriated negligently, where his attorney escrow account had a $42,415.91 shortfall. In the present case, Zuckerman’s unethical accounting practices impacted at least one hundred fifty-five clients and third parties and endangered $311,898.11 of client trust money and at least $144,000 owed to third parties. Unlike Stolarz and Adams, where the unintentional transgressions involved only one client and in much smaller amounts ($300.00 and $2,000.00, respectively), Zuckerman’s unintentional (negligent) misappropriations were of greater impact and scope.7

Lastly, I consider the mitigating factors. Like DiCicco, Zuckerman has no history of prior disciplinary proceedings. Yet, having an unblemished record is not a salve that cures all *386ills. It may have greater weight where the transgressions are minor in scope, apparently impact one client or only a few clients, and the misconduct may be characterized fairly as an isolated incident in a long career. See Stolarz, Adams, supra. When the misconduct of an attorney impacts potentially hundreds of clients and third parties and significant sums of money, a lesser sanction, even though the attorney has a “spotless” disciplinary record, hardly seems commensurate as a general deterrent against similar conduct by other attorneys. Dicicco, 369 Md. at 686, 802 A.2d at 1028. If a sanction is to protect generally the public from future, similar transgressions by lawyers, it must encourage all lawyers, not just those who have prior disciplinary records, to account responsibly for their client trust accounts. An indefinite suspension with a right to reapply no sooner than ninety days is the more appropriate sanction in the present case.

. We also concluded that he violated MRPC 1.15(c) with regard to one client.

. Adams forwarded the $1,900.00 received from the client to the Comptroller by a cashier's check four months and one day after the negotiated settlement occurred. Adams received the client’s funds one week after negotiating the tax delinquency settlement.

. Stolarz’s client had assigned $300.00 of any personal injury settlement proceeds as collateral for a loan.

. Judge Prevas noted that Zuckerman’s routine practice of loaning money from existing client accounts to pay "entitled” clients had resulted in loans ranging from thirteen days to 5 months in duration.

. Ms. Becker stole approximately this amount from his attorney trust account.

. Zuckerman also violated MRPC 1.1 (Competence), 1.3 (Diligence), 1.4 (Communication), 5.3(a) & (b) (Responsibilities regarding nonlawyer assistants), and 8.4 (Misconduct). In addition, Zuckerman violated Maryland Rule 16-607 and §§ 10-304 and 10-306 of the Business Occupations and Professions Article. Md.Code (2000, 2004 Repl.Vol.).

. Other cases relied on by the Majority in support of an indefinite suspension with a right to reapply no sooner than thirty days are, upon close examination, not comparable to the facts in this case. They reflect instead a single client benchmark and involved ethical violations of lesser magnitude than those committed by Zuckerman. Attorney *386Grievance Comm'n v. Seiden, 373 Md. 409, 818 A.2d 1108 (2003) (violation of MRPC 1.1 (Competence), 1.15 (Safekeeping property), 8.4(a) & (d) (Misconduct) involved a single client where the attorney deducted a legal fee of $4,400.00 from estate funds without a Fee Petition to the Orphans Court or consent of the personal representative of the estate); Attorney Grievance Comm'n v. Culver, 371 Md. 265, 283-84, 808 A.2d 1251, 1262 (2002) (violation of MRPC 1.5(c) (Fees) and Maryland Rule 16-607(b)(2) involving a single incident with one client and a fee paid to the attorney of $8,714.50).