Robbins v. State

Circuit Court for Montgomery County Case No. 136236C

Wells, C.J., Graeff, Meredith, Timothy E. (Senior Judge, Specially Assigned), JJ.

OPINION ^[*]

Graeff, J.

On June 11, 2021, a jury in the Circuit Court for Montgomery County convicted appellant, Jonathan David Robbins, of multiple counts of theft and related offenses committed in the course of legal representation for his now-deceased elderly client, Helen Nutt. The court sentenced him as follows: 15 years, all but five suspended, for a theft scheme with a value over $100,000; 15 years, all but five suspended, consecutive, for financial exploitation of an adult over 68; 10 years, all suspended, for financial exploitation scheme of a vulnerable adult; 10 years, all but two suspended, consecutive, for theft scheme with a value over $100,000; and five years of supervised probation upon release. The court merged the conviction of misappropriation by a fiduciary for sentencing purposes.

On appeal, appellant presents one question for this Court's review, which we have rephrased, as follows:

Did the circuit court err in admitting into evidence information regarding appellant's case before the Maryland Attorney Grievance Commission ("AGC") and Maryland Consumer Provision Division ("CPD")

For the reasons set forth below, we shall affirm the judgments of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

In the fall of 2013, Mrs. Nutt hired appellant to represent her as her lawyer, trustee of her accounts, and power of attorney. Mrs. Nutt, an elderly woman with dementia, was living in Kensington Park Senior Living ("Kensington Park") because she could no longer live by herself.

Between September 10, 2013, and November 11, 2015, appellant failed to provide Ms. Nutt with any billing invoices for his services. On August 8, 2015, Anita Baker Nutt,

Mrs. Nutt's daughter-in-law, filed a complaint with the AGC. On November 11, 2015, after multiple requests for information regarding fees, appellant sent a 109-page invoice, with charges of $322,050 in fees and $2,920 in expenses. Although he was supposed to create a financial plan for Mrs. Nutt and file taxes, there was no financial plan and he had failed to file tax returns for Mrs. Nutt or her trusts.

On May 24, 2017, after reviewing the complaint, the AGC filed a Petition for Disciplinary Action against appellant. The AGC determined, after investigation, that appellant had charged Mrs. Nutt excessive and inappropriate fees for functions that required no charge, such as "administrative" functions like receiving and reviewing emails, and he had engaged in self-dealing by using Mrs. Nutt's funds to defend himself in his matters against the AGC and the CPD.

The Supreme Court^[1] designated Judge Harry Storm to conduct a hearing, and after a five-day hearing in 2018, Judge Storm found that appellant violated the Maryland Attorneys' Rules of Professional Conduct ("MARPC") in multiple ways. Att'y Grievance Comm'n v. Robbins, 463 Md. 411, 424 (2019). In April 2019, the Supreme Court issued its decision, concluding that appellant's multiple violations of the MARPC warranted the

sanction of disbarment. Id. at 468.^[2] It found that appellant's "inclination to prey on the elderly [in this case and others was] particularly heinous." Id.

In August 2019, the Montgomery County State's Attorneys' Office brought criminal charges against appellant. Carolyn Sweeney, former director of assisted living at Kensington Park, testified at trial that Mrs. Nutt was one of the residents under her care. Mrs. Nutt arrived at Kensington Park in November 2013, and Ms. Sweeney created a service plan for Mrs. Nutt's care, which she discussed with Mrs. Nutt and Anita Rothwell, Mrs. Nutt's independent geriatric care manager. In the service plan, Ms. Sweeney diagnosed Mrs. Nutt with aphasia, meaning that "she [knew] what she want[ed] to say, but she [didn't] always have the right words coming out."

Stephanie Shepard, a physician's assistant in geriatrics, testified that she saw Mrs. Nutt at the request of Kensington Park staff. She noted that Mrs. Nutt had physical and mental deficiencies, including memory loss, aphasia, and depression. In February 2017, Ms. Shepard assessed Mrs. Nutt and noted that Mrs. Nutt had dementia. Mrs. Nutt seemed nervous, anxious, and worried. Mrs. Nutt "believe[d] her geriatric care manager and power of attorney were scheming against her and she told her sister this over the last days."

Dr. Amanda Goldfarb, a geriatric physician, testified that she started seeing Mrs. Nutt in approximately July 2014. Upon meeting Mrs. Nutt, Dr. Goldfarb noted that Mrs. Nutt had anxiety and dementia or memory problems. Mrs. Nutt's overall medical problems persisted and worsened until her passing on June 26, 2017.

John Patrick Berger, a financial advisor, testified that he began working with the Nutt family in approximately 2008. Mr. Berger established a joint account and an IRA account for Mrs. Nutt and her husband, including the Helen E. Nutt Trust ("Helen trust") and James R. Nutt Trust (the "family trust"). Mr. Berger worked primarily with Mr. Nutt. Following Mr. Nutt's passing and Mrs. Nutt's move to Kensington Park, Mr. Berger visited her on a couple occasions. He noted, however, that "there wasn't much point other than making a social call" because her cognition had declined, and "she didn't really understand or remember" why Mr. Berger visited or what they discussed. The financial plan at that time was to continue the Nutts' conservative investments, "with the primary goal of generating reliable income." Given the passing of her husband and son, Mrs. Nutt discussed delegating her investment decisions and finalizing her estate plan with Mr. Berger. Mr. Berger had met appellant through a business networking group, and knowing appellant's credentials, he connected appellant with Mrs. Nutt for the purpose of managing Mrs. Nutt's affairs.

Appellant eventually took over Mrs. Nutt's affairs as her attorney and trustee of the trust accounts. On November 1, 2013, appellant created a new trust account on Mrs. Nutt's

behalf: the Helen Echard Nutt Revocable Trust (the "revocable trust").^[3] The trust document stated that Mrs. Nutt transferred to appellant, as trustee, all of her property. Mr. Berger testified that he communicated with Mrs. Nutt and appellant, and that he had concerns about a conflict of interest because appellant drafted the trust document while simultaneously serving as trustee to the account.

On December 17, 2013, Mrs. Nutt and appellant signed a "Trust Certification Form," allowing appellant to receive correspondence about the trust directly. Mr. Berger interacted with appellant on many occasions regarding Mrs. Nutt's accounts. Appellant "made a number of requests from the accounts to address a variety of [Mrs. Nutt's] needs," but it "was often difficult to get signed correspondence. [Appellant] would make requests . . . for specific things before the authorizations were in place for him to do those things, and he was generally not getting the items that [they] needed in order to do the things he was asking." Appellant did not always provide reasons for withdrawing money from Mrs. Nutt's accounts.

Mary McCarty, appellant's former employee, testified that she began working for appellant in approximately December 2017. She worked out of appellant's home office, which she described as a large house. Ms. McCarty was paid bi-weekly at a rate of $22 per hour. She assisted appellant with his AGC case, and appellant explained to her that the complaint against him concerned his management of various clients, including Mrs. Nutt.

Appellant also told Ms. McCarty that he had lost his law license and that he planned to sue various members of the AGC. Ms. McCarthy helped proofread approximately 20 demand letters appellant drafted, where he stated that he was innocent of the accusations and that he was entitled to damages. Ms. McCarthy stopped working for appellant in approximately October 2019.

Reverend Dr. Todd Adams, the President and Chief Executive Officer for the Pension Fund of the Christian Church (the "Fund"), an entity that provides retirement benefits services, testified that Mrs. Nutt joined the Fund in approximately 1982, and she enrolled in a Tax Deferred Retirement Account ("TDRA" or "pension fund") and a Benefit Accumulation Account ("savings account") with the Fund. By December 2014, due to his role as Mrs. Nutt's Power of Attorney, appellant was added to Mrs. Nutt's account at the Fund and his address appeared as the mailing address on Mrs. Nutt's statements. Following a Fund member's death, pension payments were meant to cease because a person is "only entitled to the pension the month in which they lived." Therefore, after Mrs. Nutt's death, the Fund would go through the "death process," which included identifying the beneficiaries on the accounts and paying the balance out to them. Appellant would not have been allowed to stay on the accounts because his access extended from Mrs. Nutt's power of attorney, which expired when Mrs. Nutt died.

Reverend Dr. Adams testified that, as of June 2017, the Fund did not have any record that Mrs. Nutt had died. Accordingly, the Fund continued to issue pension payments to Mrs. Nutt's Trust until the Fund learned of Mrs. Nutt's passing in February 2019. The

Fund was apprised of Mrs. Nutt's passing when her daughter, Nancy Nutt, called to inquire about any funds her mother may have left for her. Nancy Nutt was the sole beneficiary of Mrs. Nutt's Fund accounts. In February 2019, appellant attempted to withdraw funds from Mrs. Nutt's savings account, at which point Reverend Dr. Adams spoke with appellant, and appellant stated "that he was surprised that he hadn't...