Attorney Grievance Commission v. Tauber

HARRELL, J., concurring and dissenting, in which BATTAGLIA, J., joins.

I concur with the Majority opinion as to the disposition of the exceptions of the Attorney Grievance Commission (“AGC”).1 I write in dissent, however, because the gravity of *431the violations found and the principle of stare decisis necessitate a more serious sanction than ordered by the Majority opinion. We made clear, in Attorney Grievance Commission v. Calhoun, 391 Md. 532, 574, 894 A.2d 518, 543 (2006), that “[t]his Court does not take the mishandling of attorney trust accounts lightly.” Yet, the flat thirty-day suspension imposed by the Majority opinion undercuts this proclamation and the substantial line of factually-similar cases honoring it.

I.

As stated in Calhoun, 391 Md. at 574-75, 894 A.2d at 543-44:

We cannot understate the importance of holding funds in escrow in accordance with Rule 1.15 and how the Rule reinforces the public’s confidence in our legal system. Escrow accounts serve as sanctuary for client funds from the attorney’s creditors. They also provide peace of mind and order to disputing parties, assuring that no one party will exercise control over the funds until an independent resolution of the dispute.
A number of other cases have found indefinite suspension of varying degrees to be the proper sanction where there was no finding of intentional misappropriation. See [Attorney Grievance Comm’n v.] Sperling, 380 Md. 180, 844 A.2d 397, 404 [ (2004) ] (finding violations of [the Maryland Rules of Professional Conduct (“MRPC”) ] 1.15 and 8.4(a); indefinite suspension with right to reapply after ninety (90) days); ... [Attorney Grievance Comm’n v.] Culver, 371 Md. 265, 808 A.2d 1251 [ (2002) ] (finding violations of MRPC 1.5(c), 1.15(c) and [Maryland] Rule 16—607(b)(2); indefinite suspen*432sion with right to reapply after thirty (30) days); [Attorney Grievance Comm’n v.] DiCicco, 369 Md. 662, 802 A.2d 1014 [ (2002) ] (finding violations of MRPC 1.15(a), (c), 8.4(a), Rules 16-607(a) and 16-609; indefinite suspension with right to reapply after ninety (90) days); [Attorney Grievance Comm’n v.] Jeter, 365 Md. 279, 778 A.2d 390 [ (2001) ] (finding violations of MRPC 1.5, 1.15, and Maryland Rules 16-603 and 16-604; indefinite suspension with right to reapply after six months)[.]

(Emphasis added; internal quotation marks and citations omitted.)

In addition to this line of cases, the Court often cites Attorney Grievance Commission v. Awuah, 346 Md. 420, 697 A.2d 446 (1997) (imposing an indefinite suspension with a right to reapply in 60 days for violations of MRPC 1.15(a) and (b), 8.4(b), Maryland Code (1996), Business Occupations & Professions, § 10-302,2 and the predecessors of Rules 16-603, 16-604, 16-606, 16-607, and 16-609, which all pertain to not maintaining a client trust account and depositing funds in an operating account), as well as “[Attorney Grievance Commission v.] Seiden, 373 Md. [409,] 425, 818 A.2d [1108,] 1117 (imposing a thirty-day suspension with the right to reapply for violations of MRPC 1.1, 1.15(a), 8.4(a), and 8.4(d) because the attorney improperly obtained his fee from his escrow account after depositing settlement funds, but was remorseful, had no previous disciplinary action against him, and the conduct resulted from representing a difficult client)[.]” Attorney Grievance Commission v. Zuckerman, 386 Md. 341, 377, 872 A.2d 693, 714 (2005).

In all of these cases, the attorneys were playing “fast and loose” with their clients’ funds, whether creating a shortfall in a client trust account, Sperling; drawing on a disputed portion of a client trust fund, Culver; using a client trust account as a personal bank account, DiCicco; faffing to maintain a client trust account and instead placing client funds into an operat*433ing account, Jeter and Awuah; or deducting a fee before paying the client or submitting a fee petition in an estate case, Seiden. In some, but not all, of these cases, the attorneys used the funds for their own, unauthorized purposes, i.e., misappropriated the funds.3,4 The reason we cite these cases together normally, it seems to me, is because they share the primary factor militating against disbarment—the misconduct was unintentional or negligent. See e.g., Culver, 371 Md. at 280-81, 808 A.2d at 1260 (“That the effect of the [attorney’s] action may be to misappropriate funds belonging to another ... does not mean that the actions were taken with the intent to misappropriate.” (internal quotation marks and citations omitted)).

II.

In the present case, the hearing judge determined that Joseph Tauber (“Tauber”), by depositing unearned client *434funds into his personal operating account, violated MRPC 1.15(a), Maryland Rule 16-604, and § 10-304. The judge also concluded that Tauber engaged in conduct that is “prejudicial to the administration of justice”—that is, “fail[ed] to know about and have in place a system that would protect his client’s funds”—and thus violated MRPC 8.4(d). Nonetheless, the hearing judge did not conclude that Tauber acted with dishonest or fraudulent intent. Perhaps Tauber “was not aware of the need to deposit [client] funds in a trust account” and “believed that he was handling the funds ... in an appropriate [manner],” as the hearing judge concluded. Regardless, he conducted his law practice in disregard of the MRPC, the Maryland Rules, and the Maryland Code. These behavioral standards are designed to protect the public and the decency of the legal profession. See Awuah, 346 Md. at 435, 697 A.2d at 454. Such haphazard treatment of client funds should not (and is not usually) taken lightly, as our jurisprudence demonstrates. In view of the precedential and factually-similar body of law cited swpra, I would impose the more fitting and consistent sanction of indefinite suspension, with the right to apply for reinstatement no sooner than ninety days after the effective date of the mandate.

Judge BATTAGLIA authorizes me to state that she joins the views expressed here.

. The AGC takes exception to the hearing judge’s failure to conclude that there was a violation of Maryland Rule 16-609, which states that "[a]n attorney ... may not ... use any funds for any unauthorized *431purpose." To sustain the exception, we would need to conclude that Tauber not only deposited client funds into his operating account, but then used those client funds for some unauthorized purpose. In this case, there appears to be scant evidence—i.e., checks, bank statements, and the like—demonstrating clearly that Tauber (1) used actually client funds, as opposed to already existing funds to which he was entitled, in his operating account (2) for an unauthorized purpose.

. Unless otherwise indicated, all Code references are to the Business Occupations and Professions Article.

. As we stated in Attorney Grievance Commission v. Culver, 371 Md. 265, 281 n. 19, 808 A.2d 1251, 1260 n. 19 (2002):

The co-mingling of client and attorney funds always creates the potential for misappropriation, even when there is no intent to misappropriate. A misappropriation necessarily occurs whenever the attorney withdraws funds from a co-mingled account for his or her own purpose and, as a result, leaves the account insufficient to cover all client funds, and such a misappropriation is never innocent. It is not necessarily wilful, however, or for the conscious purpose of unlawfully taking funds held in trust for another.

. In those cases explained supra, where the Court determined that a "misappropriation” occurred, neither we nor the hearing judges went so far as to find related violations of MRPC 8.4(c), which would implicate a more deliberate and reprehensible intent. MRPC 8.4, cmmt. 2 ("Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, or breach of trust, or serious interference with the administration of justice are in that category.”); Attorney Grievance Comm’n v. Nussbaum, 401 Md. 612, 646, 934 A.2d 1, 21 (2007) (observing that the attorney facing discipline cited “a number of cases where a sanction less than disbarment was ordered in a misappropriation case,” but that, "[i]n every case cited, except [Attorney Grievance Commission v.] Calhoun[, 391 Md. 532, 574, 894 A.2d 518, 543 (2006) ] ... the hearing judge did not find a violation of MRPC 8.4(c)”).