Attorney Grievance Comm'n of Md. v. Harmon

433 Md. 612

72 A.3d 555

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND

v.Anthony Maurice HARMON.

Misc. Docket AG No. 44, Sept. Term, 2010.

Court of Appeals of Maryland.

Aug. 19, 2013.

Dolores O. Ridgell, Assistant Bar Counsel (Glenn M. Grossman, Bar Counsel, Attorney Grievance Commission of Maryland), for Petitioner.

Anthony Maurice Harmon, Largo, MD, for Respondent.

Argued before BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, BELL ^* and JOHN C. ELDRIDGE (Retired, Specially Assigned), JJ.

PER CURIAM.

Petitioner, the Attorney Grievance Commission (“AGC”), acting through Bar Counsel, filed, in accordance with Maryland Rule 16–751, ¹ a Petition for Disciplinary or Remedial Action (“the Petition”) against Anthony Maurice Harmon (“Respondent”) for violations of the Maryland Lawyers' Rules of Professional Conduct (“MLRPC”). Petitioner contends that Respondent commingled funds and failed to properly maintain an attorney trust account and related financial records, in violation of MLRPC 1.15 (Safekeeping Property) ² and 8.1(b) (Bar Admission and Disciplinary Matters), ³ as well as Maryland Rules 16–606.1 (Attorney Trust Account Record–Keeping),⁴ 16–607 (Commingling Funds),⁵ and 16–609 (ProhibitedTransactions).^6,7

In accordance with Maryland Rule 16–752(a),⁸ we referred the Petition to the Honorable Toni E. Clarke of the Circuit Court for Prince George's County for an evidentiary hearing and to make findings of fact and conclusions of law in accordance with Maryland Rule 16–757.⁹

I. Procedural History

Respondent was personally served with the Petition on November 22, 2010. He did not file an answer within fifteen days of service, as required by Maryland Rule 16–754.¹⁰ The same day Respondent was served with the Petition, he was served with Petitioner's Requests for Admission of Facts and Genuineness of Documents. Harmon did not respond either to those requests.

Because Harmon did not file an answer, Petitioner filed, on March 1, 2011, a Motion to Extend Time for Judicial Hearing with this Court, see generallyMd. Rule 16–757(a) (requiring a hearing to be “completed within 120 days after service on the respondent of the order designating a judge,” unless otherwise ordered by the Court of Appeals), so that the Circuit Court could enter an order of default. SeeMd. Rule 16–754(c) (“If the time for filing an answer has expired and the respondent has failed to file an answer ... the court shall treat the failure as a default and the provisions of Rule 2–613 shall apply.”); Md. Rule 2–613 (permitting a court to enter an order of default if no responsive pleading is filed). We granted Petitioner's motion, thus extending the time for completion of the hearing until April 12, 2011. Petitioner filed a Motion for Order of Default with the Circuit Court on March 4, 2011, which was granted by Judge Clarke on March 9, 2011. The Order of Default and notice that a hearing was scheduled for April 12, 2011 were mailed to the three known addresses of Harmon.

Maryland Rule 2–613(d) provided Respondent with thirty days to move to vacate the Order of Default or otherwise respond to the Notice of Order of Default. Respondent did not take any action during this time. Respondent appeared at the April 12 hearing, however, with an Opposition to the Motion to Default ¹¹ and an Answer to the Petition. Respondent argued that his failure to timely file an Answer was due to family and personal problems, including divorce, foreclosure, and the death of a family member. Finding that Respondent did not satisfactorily substantiate any averment meeting the standard for vacating the Order of Default under Maryland Rule 2–613(d),¹² the Circuit Court denied Respondent's motion. The factual averments made in the Petition were, therefore, deemed admitted, seeMd. Rule 2–323(e) ( “Averments in a pleading to which a responsive pleading is required ... are admitted unless denied in the responsive pleading....”); Attorney Grievance Comm'n v. Lee, 390 Md. 517, 524, 890 A.2d 273, 277 (2006), as were the matters contained in the Requests for Admission of Facts and Genuineness of Documents previously served on, but never responded to by, the Respondent. See Md. Rule 2–424(b) (“Each matter of which an admission is requested shall be deemed admitted unless ... the party to whom the request is directed serves a response....”).

Following the evidentiary hearing, at which Respondent was permitted to participate, Judge Clarke issued her Findings of Fact and Conclusions of Law, in which she concluded, by clear and convincing evidence, that Respondent violated MLRPC [433 Md. 620]1.15 and 8.1(b), and Maryland Rules 16–606.1, 16–607, and 16–609. Harmon filed with this Court, one day before oral argument, an Opposition to the Petitioner's Recommendation for Sanction. Petitioner did not receive a copy of Harmon's Opposition until the day of oral argument, and accordingly asked this Court to strike Harmon's Opposition as untimely.

II. Hearing Judge's Findings of Fact and Conclusions of Law

Harmon maintained an attorney trust account at Bank of America. On or about June 10, 2009, Harmon authorized the transfer of $500 from his attorney trust account to a personal account of his. At the time the transfer was authorized, however, the attorney trust account did not have sufficient funds. As a result, the attorney trust account was overdrawn in the amount of $101.50.

On or about July 22, 2009, Bar Counsel ¹³ mailed a letter to Respondent to inform him of the overdraft and request that Respondent provide an explanation for the overdraft and copies of his financial records. Harmon did not respond to Bar Counsel's request.

Bar Counsel mailed a second letter to Harmon on or about August 19, 2009, regarding the overdraft. On or about August 22, 2009, Harmon responded to Bar Counsel's inquiry, stating that the overdraft occurred after he deposited a retainer check from a client and subsequently transferred $500 to his business checking account to pay rent for his office space. He also provided records indicating that, on June 8, he deposited $200 in his attorney trust account. On June 10, however, a $200 charge-back was made to the account.

On or about September 14, 2009, Bar Counsel mailed a third letter to Harmon, asking for further information regarding the transactions leading to the June 10 overdraft. Specifically, Bar Counsel requested a copy of the $300 payment to the attorney trust account constituting the difference between the $200 deposited on June 8 and the $500 transferred on June 10. Harmon did not respond. On October 7, Bar Counsel mailed a fourth letter, asking Harmon to respond within seven days. Harmon, again, failed to respond. On or about November 13, 2009, Bar Counsel mailed a fifth letter to Harmon, informing him that the matter was upgraded to a docketed case and requesting a response within fifteen days. Harmon did not respond. Bar Counsel mailed another letter on or about December 17, by both certified and first-class mail. Although the letter sent by certified mail was returned as “unclaimed” to Bar Counsel by the postal service, the letter sent first-class was not.

On January 25, 2010, an investigator for Bar Counsel delivered to Harmon a copy of an investigative subpoena, issued to Bank of America, for production of Harmon's trust account records. At that time, Harmon gave to the investigator a letter for Bar Counsel dated September 22, 2009. Bar Counsel had not previously received the letter. On January 25, Harmon spoke to an Assistant Bar Counsel by telephone. During that conversation, he confirmed that his mailing address was a post office box in Largo (to which Bar Counsel had previously mailed its correspondence), and stated that he generally retrieved his mail from the post office box two or three times a week.

On or about February 1, 2010, Harmon wrote to Bar Counsel and explained that, in addition to the $200 deposited into his attorney trust account on June 8, he had also received and deposited $300, purportedly for legal services already rendered, from another client named Goldsmith. According to the Bank of America records received by Bar Counsel, however, the $300 was received by Harmon from an individual named William Phillips.

Moreover, the Bank of America records showed that Harmon made occasional transfers from personal Bank of America accounts into his attorney trust account. For example, on September 2, 2009, Harmon made two separate transfers into his attorney trust account, in the amount of $900 and $1,700, from a personal account. He also deposited, on at least two occasions into his attorney trust account, funds received by him as rental payments on property that he owned personally. On at least one occasion, a counter debit on March 25, 2009, Harmon withdrew funds in cash from his attorney trust account. Additionally, the hearing judge noted that Harmon failed to maintain records, made contemporaneously with the disbursements and deposits from and into his attorney trust account, showing “the date of the transaction, the amount, the payee, the identity of the client or third person for whom the disbursement/deposit was made and the purpose of the disbursement/deposit.”

The hearing judge found, by clear and convincing evidence, that Harmon's handling of his attorney trust account and subsequent failure to cooperate with Bar Counsel violated MLRPC 1.15 and 8.1(b), as well as Maryland Rules 16–606.1, 16–607, and 16–609. Specifically, Judge Clarke noted that, with respect to MLRPC 1.15 and Rules 16–601.1, 16–607, and 16–609, Harmon failed to maintain accurate and complete records for his attorney trust account, as demonstrated by his incorrect identification of the source of the June 8 deposit of $300, improperly commingled his personal funds with his client funds by transferring funds from personal accounts into his attorney trust account, and improperly made cash withdrawals from his attorney trust account. Moreover, Judge Clar...