Attorney Grievance Commission v. Hayes

789 A.2d 119, 367 Md. 504, 2002 Md. LEXIS 8
CourtCourt of Appeals of Maryland
DecidedJanuary 18, 2002
Docket48, Sept. Term, 2000
StatusPublished
Cited by37 cases

This text of 789 A.2d 119 (Attorney Grievance Commission v. Hayes) is published on Counsel Stack Legal Research, covering Court of Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Attorney Grievance Commission v. Hayes, 789 A.2d 119, 367 Md. 504, 2002 Md. LEXIS 8 (Md. 2002).

Opinions

BELL, Chief Judge.

The only issue to be decided in this Attorney discipline case is the appropriate sanction to be imposed on the respondent, John A. Hayes, Jr., for violation of certain of the Rules of Professional Conduct, Maryland Rule 16-812,1 Maryland Code (1989, 2000 Replacement Volume) § 10-806 of the Business Occupations and Professions Article,2 commingling of funds,3 [507]*507and drawing a check made payable to cash on his escrow account4 on 4 occasions.5 The petitioner recommends that the respondent be disbarred from the practice of law. The re[508]*508spondent counters that the violations merit only a reprimand, but if a greater sanction is warranted, no more than a short period of suspension should be imposed.

The . facts out of which these violations arose are not in dispute and, in fact, were stipulated. They involve the respondent’s handling of client funds in his possession as a result of the settlement of a medical malpractice action he and James K. Fowley, whom the respondent enlisted for the purpose, handled on behalf of Gerald Graybill, a homeless person.6 After deducting the one-third contingent attorney’s fee, Mr. Fowley forwarded the client’s share of the proceeds, $30,000.00, to the respondent,7 which he deposited in his attorney trust account at First Union National Bank on January 27, 1999. On the same day, the respondent drew a check, in the amount of $23,500.00 and payable to the client, on that account, which he forwarded to the client. At the request of the client, who, “[a]nticipating a settlement ... asked Respondent to negotiate payments to several of [his] creditors whose claims were unrelated to the litigation,” the respondent retained $6500.00 of the client’s monies for the purpose of paying certain of the client’s creditors.

When the check to the client cleared on February 2, 1999, the balance in the respondent’s attorney trust account was reduced to $6232.90, $267.10 less than the amount he retained.8 Thereafter, during that month, the respondent wrote [509]*509checks on the trust account for personal and business expenses, with the result that the account had a negative balance of $81.78 on February 26, 1999.

Before paying the client’s creditors, the respondent negotiated with each one, resulting in a compromise of the claims by appropriately 50 per cent. Payments on behalf of the client, to discharge the client’s financial obligation to his creditors were made on March 15th and 16th to Union Hospital of Elkton and CRA Collections, respectively. A $500.00 check written on January 27th to Timothy Grayson for advances made on behalf of the client was paid on May 5, 1999. After deducting the bonus, $100.00, that the client insisted that the respondent take, on that date, the amount of client funds in the respondent’s possession after May 5 was $3500.00. That amount was paid over to the client between August and October. Before that could be accomplished, however, the respondent had to locate the client, with whom he had lost contact, and he expended some effort in doing so.

At the end of June, 1999, while the respondent was still holding the $3500.00 for the client, the respondent’s attorney trust account again showed a negative balance. The account reflected, as it had leading up to the earlier negative balance, that the respondent had written a number of checks for personal and business purposes.

The hearing judge found, as the respondent readily admitted, that the respondent commingled client funds with his own funds in the First Union attorney trust account and used that account as a general and personal account, depositing client funds as well as his own funds into the account “and using all money in the account to pay bills.” In addition, he found that the respondent drew checks payable to cash on the attorney trust account on four occasions. The hearing judge also found that there were mitigating factors: the respondent’s candor in acknowledging his misuse of the attorney trust account; only [510]*510one client was involved in the misconduct; the misconduct occurred while the respondent was attempting to assist the client, without compensation, in a matter unrelated to the matter in which he represented the client; the fact that, when he lost track of him, the respondent undertook to locate the client so that funds belonging to him could be returned; the respondent’s participation in the Maryland Volunteer Lawyers Services and willingness to handle pro bono cases and the respondent’s good character, as attested to by a number of character witnesses, including two former Circuit Court judges. In addition, the hearing judge credited the testimony of Dr. Wendy Zimmerman, a licensed psychologist. She testified that the respondent suffers from attention deficit disorder, which “manifests itself in Respondent’s lack of success at the business end of his law practice ... causing him to be ‘not good with monetary matters’... and to have trouble collecting money for his legal services.”

In arguing that disbarment is the appropriate sanction, the petitioner reminds us of our consistent and repeated admonition that “[misappropriation of funds by an attorney is an act infested with deceit and dishonesty and ordinarily will result in disbarment in the absence of compelling extenuating circumstances justifying a lesser sanction.” Attorney Griev. Comm’n v. Bakas, 323 Md. 395, 403, 593 A.2d 1087, 1091 (1991). It relies on Attorney Griev. Comm’n of Maryland v. Bernstein, 363 Md. 208, 226, 768 A.2d 607, 617 (2001); Attorney Griev. Comm’n v. Tomaino, 362 Md. 483, 498, 765 A.2d 653, 661 (2001); Attorney Griev. Comm’n v. Sheridan, 357 Md. 1, 27, 741 A.2d 1143, 1156 (1999). Rejecting any suggestion that the attention deficit disorder from which the respondent suffers should suffice as a compelling extenuating circumstance, the petitioner points to our decision in Attorney Griev. Comm’n v. Vanderlinde, 364 Md. 376, 413-14, 773 A.2d 463, 485 (2001), which is the latest word on when a mental condition can be so considered, when it is “most serious and debilitating,” the “ ‘root cause,’ of the misconduct,” and “results in [the] attorney’s utter inability to conform his or her conduct in accordance with the law and with the MRPC.”

[511]*511Stressing the mitigating factors found by the hearing judge, the purpose of disciplinary proceedings, see Attorney Griev. Comm’n v. Jeter, 365 Md. 279, 289, 778 A.2d 390

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Bluebook (online)
789 A.2d 119, 367 Md. 504, 2002 Md. LEXIS 8, Counsel Stack Legal Research, https://law.counselstack.com/opinion/attorney-grievance-commission-v-hayes-md-2002.