Attorney Grievance Comm'n of Md. v. Silbiger

478 Md. 607

276 A.3d 53

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND

v.Clifford Baer SILBIGER

Misc. Docket AG No. 57, Sept. Term, 2020

Court of Appeals of Maryland.

May 26, 2022

Argued by Erin A. Risch, Deputy Bar Counsel (Lydia E. Lawless, Bar Counsel, Attorney Grievance Commission of Maryland), for Petitioner.

Argued by Kathleen Howard Meredith, Esq. (Iliff, Meredith, Wildberger & Brennan, P.C., Pasadena, MD), for Respondent.

Argued before: Watts, Hotten, Booth, Biran, Gould, Glenn T. Harrell, Jr. (Senior Judge, Specially Assigned), Robert N. McDonald (Senior Judge, Specially Assigned), JJ.

Booth, J.

In this case, we must determine the appropriate sanction to impose for an attorney's intentional misconduct in connection with activities in which he engaged related to his attorney trust account, including taking cash disbursements, commingling personal funds with client funds, paying personal expenses directly from his attorney trust account, and maintaining negative client-matter balances. The attorney, Respondent, Clifford Baer Silbiger, admits to borrowing funds from his attorney trust account to cover expenses related to his law firm—in essence, taking an interest-free loan from his client without her knowledge or consent. The only issue in dispute is the appropriate sanction to be imposed for the misconduct. Mr. Silbiger has proven considerable mitigating factors, including an unblemished professional record that spans 50 years and an excellent reputation in the legal community. And he asserts that no client or third party was harmed in connection with the misconduct. In fact, the client was likely not even aware that Mr. Silbiger borrowed from the funds held in trust, which Mr. Silbiger claims that he always intended to repay, and did indeed repay. For the reasons set forth herein, although we have considered the facts and circumstances presented in this case, we do not determine that the circumstances surrounding the misconduct justify a deviation from the sanction of disbarment that is ordinarily warranted when considering misconduct of this nature.

IBackground

A. Procedural Context

On December 9, 2020, the Attorney Grievance Commission of Maryland ("Commission"), acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action ("Petition") against Respondent, Clifford Baer Silbiger. The Petition alleged that Mr. Silbiger violated the Maryland Attorneys’ Rules of Professional Conduct ("MARPC")¹ in connection with his representation of Shannon Johnson. Specifically, Bar Counsel charged Mr. Silbiger with violating MARPC 19-301.1 (Competence); 19-301.3 (Diligence); 19-301.4(a) and (b) (Communication); 19-301.15(a), (b), and (d) (Safekeeping Property); 19-308.1(b) (Bar Admission and Disciplinary Matters); 19-308.4 (a)–(d) (Misconduct); Maryland Rule 19-404 (Trust Account – Required Deposits)² ; Maryland Rule 19-407(a)(2)–(d) (Attorney Trust Account Record-Keeping); Maryland Rule 19-408(a) (Commingling of Funds); Maryland Rule 19-410(a)–(c) (Prohibited Transactions); and Maryland Code, Business Occupations & Professions Article ("BOP"), § 10-306.

Pursuant to Maryland Rule 19-722(a), this Court transmitted the case to the Circuit Court for Carroll County and designated Senior Judge Louis A. Becker, III ("hearing judge") to conduct an evidentiary hearing and make findings of fact and conclusions of law. The hearing took place on July 7, 2021. Mr. Silbiger was represented by counsel throughout the hearing. Many of the facts of the case were stipulated to in a Joint Statement of Stipulated Facts that was submitted at the hearing. An Amended Joint Statement of Stipulated Facts ("Stipulation") was submitted on August 3, 2021.

The hearing judge issued a Memorandum of Findings of Fact and Conclusions of Law, on August 24, 2021, in which he found clear and convincing evidence that Mr. Silbiger violated MARPC 1.1, 1.4, 1.15, 8.1, 8.4(a)–(d), Rule 19-407, Rule 19-408, Rule 19-410, as well as BOP § 10-306.³ The hearing judge also made findings of fact related to aggravating and mitigating circumstances for this Court's consideration in formulating an appropriate sanction.

Neither the Commission nor Mr. Silbiger filed exceptions to any of the hearing judge's findings of fact or conclusions of law. This Court accepts a hearing judge's findings as established when no exceptions are filed. Md. Rule 19-740(b)(2)(a). We review the hearing judge's conclusions of law de novo . Md. Rule 19-740(b)(1). Furthermore, this Court determines whether clear and convincing evidence establishes that an attorney violated the MARPC. For the reasons set forth below, based on our independent review of the record, we affirm the hearing judge's legal conclusions on all matters.

B. Facts

Mr. Silbiger's Law Practice

Mr. Silbiger was admitted to the Bar of Maryland on September 21, 1970. At all times relevant to this proceeding, Mr. Silbiger was a solo practitioner who maintained an office for the practice of law in Westminster, Maryland.

Representation of Shannon Johnson

On September 19, 2016, Shannon Johnson and her two minor children were injured in an automobile collision. The other driver was found to be at fault. Ms. Johnson retained Mr. Silbiger to represent her and her children in connection with their claims against the at-fault driver.

In November 2018, Mr. Silbiger settled Ms. Johnson's claims and those of her minor children for a total of $101,000. At the time of settlement, Ms. Johnson had obligations to pay $7,000 to Dan Tannen for "pre-settlement" funding,⁴ as well as an outstanding Medicaid lien.

On November 21, 2018, Mr. Silbiger deposited the settlement check into his attorney trust account. That same day, he disbursed $1,200 from the settlement funds as a portion of his earned fee. On November 26, Mr. Silbiger made a second disbursement to himself for fees in the amount of $27,466.66. Several days later, on December 3, Mr. Silbiger issued a check in the amount of $7,000 payable to Mr. Tannen. On December 14, Mr. Silbiger made a partial disbursement of the settlement proceeds to Ms. Johnson in the amount of $16,385.97 but continued to hold back funds pending the resolution of her Medicaid lien.

Between December 19, 2018 and January 29, 2019, without Ms. Johnson's knowledge or permission, Mr. Silbiger knowingly and intentionally used $27,566.38 of her settlement proceeds to pay expenses associated with his law practice, including payroll for his employees, health insurance benefits, and monthly mortgage payments.

On January 21, 2019, after receiving confirmation that no additional funds were owed to Medicaid, Mr. Silbiger prepared a settlement sheet and wrote Ms. Johnson a check in the amount of $42,951.50 for the remainder of her settlement funds. However, because Mr. Silbiger did not have sufficient funds in his attorney trust account to cover the check, he did not deliver the check to Ms. Johnson until January 29, after he had deposited $35,000 of his personal funds into his attorney trust account. At that time, because Mr. Tannen had not cashed the $7,000 check, Mr. Silbiger's trust obligation remained $49,951.50.

On February 4, Ms. Johnson cashed the check for $42,951.50, leaving a balance of $6,714.88 in Mr. Silbiger's trust account—insufficient funds to cover the trust obligation to Mr. Tannen for his uncashed check in the amount of $7,000.

Between February 6 and February 12, Mr. Silbiger made two additional withdrawals from his trust account in checks made payable to himself. As a result, on February 15, 2019, when Mr. Tannen cashed the $7,000 check, it caused an overdraft in the amount of - $3,985.24 in Mr. Silbiger's trust account.

Mr. Silbiger's Attorney Trust Account

Mr. Silbiger maintained an attorney trust account at PNC Bank during the time relevant to this case. He admits that he made cash disbursements from his attorney trust account, commingled personal funds with client funds, paid personal expenses directly from his attorney trust account, and maintained negative client matter balances. Between September 2018 and December 2020, Mr. Silbiger wrote 11 checks made payable to cash from his trust account, totaling $34,000. He made another cash withdrawal on November 15, 2019 in the amount of $36,666 for fees earned in another client matter. During the period between December 2018 through March 2019, Mr. Silbiger wrote four checks from his attorney trust account to three different banks for personal expenses totaling $7,391.06. As a result of Mr. Silbiger's actions, on several occasions between November 18, 2018 and July 29, 2019, the balance in his attorney trust account fell below the amount he was required to maintain in trust for his clients.

Based upon these transactions, the hearing judge found that Mr. Silbiger failed to safekeep his clients’ funds in his attorney trust account. The hearing judge further determined that, although Mr. Silbiger's attorney trust account was out of balance on several occasions, all funds that were owed to all clients and third parties were received without delay.

Bar Counsel's Investigation

On February 22, 2019, Bar Counsel received notice from PNC Bank of the February 15, 2019 overdraft that occurred when Mr. Tannen presented the $7,000 check written to him on Mr. Silbiger's attorney trust account. That same day, Bar Counsel wrote to Mr. Silbiger, requesting that he explain the reason for the overdraft and provide copies of his client ledgers, deposit slips, cancelled checks, and monthly bank statements from December 2018 through February 2019. Mr. Silbiger responded on March 6, 2019 and explained that the overdraft occurred when funds that should have been deposited into his escrow account were deposited into his regular account in error.⁵ However, he failed to provide Bar Counsel copies of the documents that had been requested.⁶

On April 24, 2019, Bar Counsel's investigator, Charles E. Miller, IV, wrote Mr. Silbiger and again asked that Mr. Silbiger provide the documents...