Attorney Grievance Commission v. Tauber

26 A.3d 967, 421 Md. 415, 2011 Md. LEXIS 524
CourtCourt of Appeals of Maryland
DecidedAugust 18, 2011
DocketMisc. Docket AG No. 9, September Term, 2010
StatusPublished
Cited by2 cases

This text of 26 A.3d 967 (Attorney Grievance Commission v. Tauber) 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. Tauber, 26 A.3d 967, 421 Md. 415, 2011 Md. LEXIS 524 (Md. 2011).

Opinions

MURPHY, J.

On February 26, 2010, the Attorney Grievance Commission of Maryland, Petitioner, filed a PETITION FOR DISCIPLINARY OR REMEDIAL ACTION against Joseph Tauber, Respondent. On March 4, 2010, this Court ordered that the charges against Respondent “be heard and determined by Judge Dennis M. Sweeney, of the Fifth Judicial Circuit [the Hearing Judge], in accordance with Maryland Rule 16-757[.]” The Hearing Judge filed “FINDINGS OF FACT AND CONCLUSIONS OF LAW” in which he concluded that Respondent “violated Rules 1.15(a) and 8.4(d) of the Maryland Rules of Professional Conduct [ (MRPC) ], [Maryland] Rule 16-604, Md. Bus. Occ. & Prof.Code Ann., Sec. 10-304 and 10-306.” Petitioner (in the words of the EXCEPTIONS it filed in this Court) “takes exceptions to the failure of the trial court to find that respondent violated Maryland Rule of Professional Conduct 8.4(c) and Maryland Rule 16-609[.]” For the reasons that follow, we shall overrule Petitioner’s exceptions, and [419]*419impose a thirty day suspension for the violations that were proven by clear and convincing evidence.

Background

The Hearing Judge’s FINDINGS OF FACT AND CONCLUSIONS OF LAW included the following findings and conclusions:

22. On November 12, 2007, the date that Jill Lee retained Mr. Tauber to represent her in the divorce, she through her father paid respondent $8,500.00 as a retainer against which Mr. Tauber was to bill $245.00 per hour.
23. On that date, Mr. Tauber did not have a trust account for the purpose of receiving such funds.
24. Mr. Tauber deposited the funds into his operating account and thereafter drew against the funds after he deposited them.
25. Mr. Tauber prepared the divorce action and filed it on June 17, 2008.
26. On June 20, 2008, Ms. Lee, again through her parents, paid Mr. Tauber an additional $2,500.00 against which he was to bill at $245.00 per hour.
27. Mr. Tauber also deposited these funds into an operating account and drew on them.
28. Sometime at the end of June 2008, Mr. Tauber prepared a bill for Ms. Lee and sent it to her. The bill indicated that he had worked 19.4 hours on her case, earning a total of $4,753.00. The bill also showed that Mr. Tauber had paid a filing fee of $115.00.
29. On July 29, 2009, after becoming dissatisfied with Mr. Tauber’s representation and after filing a complaint about Mr. Tauber -with the Commission, Ms. Lee sent Mr. Tauber a letter dismissing him as her attorney and requesting the return of the unused retainer which she calculated as $1,247.00
[420]*42030. On September 11, 2009, Mr. Tauber refunded Ms. Lee the $1,247.00 balance of the retainer.
34. Mr. Tauber admitted that Bar Counsel “was correct in terms of the non-deposit into the trust account.” ... but explained “because whether it’s ignorance on my part or basically my practice prior to the incident was not knowing the need for that.”
35. Mr. Tauber stated that he “did have some difficulty I guess in terms of the trust account, and I’ve readily admitted that. I’ve readily admitted that to Mr. Hirschman, and part of it was based, Your Honor, in terms of what sort of law I engaged in.”
36. Mr. Tauber explained that his usual legal work doing insurance defense work, work for the Office of the Public Defender and in Child in Need of Assistance matters meant that he never was paid money “up front” and that he always billed after the fees were earned and was paid after the billing.
37. Afer Mr. Tauber had a discussion with Mr. Hirschman about the need for such an account[,] he set one up, but has not utilized it since he has “given up practicing law and have [sic] moved to the state of Delaware.
Conclusions of Law
By placing the retainer fees in his operating account rather than a trust account and drawing on the funds prior to earning them, the clear and convincing evidence establishes that Mr. Tauber violated Rules 1.15(a) and 8.4(d) of the Maryland Rules of Professional Conduct, Rule 16-604, and Md. Bus. Occ. & Prof.Code Ann., Sec. 10-304 and 10-306.
It is undisputed that Mr. Tauber deposited the initial advance fee payment of $3,500.00 in his operating account after he received it on November 12, 2007. The reason he deposited it in his operating account was that he did not [421]*421have a trust account at the time and he apparently was not aware of the need to deposit the funds in a trust account.
In the Commission’s Proposed Findings of Fact and Conclusions of Law, it asserts that the conduct here is “dishonest conduct” under 8.4(c).... In the context of this case, however, the court does not conclude that Mr. Tauber was engaged in conduct that was “dishonest” conduct as 8.4(c) specifies. It is clear that Mr. Tauber was wrong not to have placed the funds in an escrow account and that he should have known of the need to do so. Mr. Tauber had admitted that he did not handle the funds as they should have been handled and as the court reads his testimony and filings with the court he has conceded his error.
However, the court cannot conclude by clear and convincing evidence that Mr. Tauber acted with the intent to be “dishonest” as is alleged by the Commission. The court concludes that at the times he received the funds, he believed that he was handling the funds received in an appropriate [manner] and that his failure to place the funds in a trust account was not done with any intent to be dishonest in his dealings "with Ms. Lee, the client in the case. There is no indication in this record that Mr. Tauber had any intent to be dishonest or fraudulent in his dealings with Ms. Lee or her parents or that he engaged in deceit or misrepresentation. The court therefore does not conclude by clear and convincing evidence that Mr. Tauber has violated 8.4(c).
On the other hand, the court does find by clear and convincing evidence that Mr. Tauber has engaged in conduct that is “prejudicial to the administration of justice” by failing to know about and have in place a system that would protect his client’s funds until they could either be earned or returned to the client. It was incumbent upon him as a lawyer to know the proper procedures to follow in dealing with new clients and his failure to know the requirements for properly handling client’s funds entrusted to him as a retainer does not excuse him from a finding that his actions [422]*422or omissions were prejudicial to the administration of justice. The court therefore concludes by clear and convincing evidence that he violated 8.4(d).
Other than the violations found above, the court cannot conclude that there is clear and convincing evidence of any other violation of the provisions cited in the Petition for Disciplinary or Remedial Action filed in the action before the Court of Appeals. As noted above, the Commission has abandoned all allegations except those pertaining to the handling of the funds Mr. Tauber received.

Discussion

I. Petitioner’s MRPC 8.4(c) Exception

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Related

Attorney Grievance v. Wescott
290 A.3d 1014 (Court of Appeals of Maryland, 2023)
Attorney Grievance Commission v. Tauber
26 A.3d 967 (Court of Appeals of Maryland, 2011)

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Bluebook (online)
26 A.3d 967, 421 Md. 415, 2011 Md. LEXIS 524, Counsel Stack Legal Research, https://law.counselstack.com/opinion/attorney-grievance-commission-v-tauber-md-2011.