Attorney Grievance Com'n of Maryland v. Kenney

• Decision Date: 01 September 1994
• Docket Number: No. 25,25
• Citation: 339 Md. 578,664 A.2d 854
• Parties: , 64 USLW 2206 ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Samuel F. KENNEY. Misc. Docket (Subtitle BV) ,
• Court: Maryland Court of Appeals

Page 578

339 Md. 578

664 A.2d 854, 64 USLW 2206

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Samuel F. KENNEY.

Misc. Docket (Subtitle BV)

No. 25, Sept. Term, 1994.

Court of Appeals of Maryland.

Sept. 11, 1995.

Melvin Hirshman, Bar Counsel, and Raymond A. Hein, Assistant Bar Counsel, for Attorney Grievance Com'n of Maryland, for petitioner.

Samuel F. Kenney, Towson, pro se.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.

CHASANOW, Judge.

On October 19, 1994, the Attorney Grievance Commission charged Samuel F. Kenney (Kenney) with violations of Maryland Rules of Professional Conduct 1.1 (Competence), 1.3 (Diligence), 1.4 (Communication), 1.15 (Safekeeping Property), 8.1 (Misconduct), 8.4 (Misconduct), Maryland Rules BU7 and BU9, as well as Maryland Code (1989), Business Occupations and Professions Article, § 10-306. Pursuant to Maryland Rule BV9b, this Court referred the matter to the Honorable Dana M. Levitz of the Circuit Court for Baltimore County to make findings of fact and conclusions of law.

On March 3, 1995, after an evidentiary hearing, Judge Levitz made the following findings which he summarized.

I.

FINDINGS OF FACT

"The Court finds the following facts have been proven by clear and convincing evidence, pursuant to Maryland Rule BV10(d):

The Respondent was born on December 15, 1928. He is presently 66 years of age. He was admitted to the Bar of Maryland on October 25, 1957. The Respondent had maintained an office for the practice of law for in excess of 25 years. The Respondent has a history of alcoholism, going back at least 25 years. Since at least 1981, the Respondent's alcoholism has been of concern to members of the Bar; however, the Respondent was able to function in a

reasonably competent fashion until he began consuming excessive quantities of alcohol, beginning in the late 1980's. From 1989 until 1993 the Respondent was consuming [664 A.2d 855] approximately one quart of alcohol per day. The Respondent severely neglected his legal practice and obligations as an attorney in the late 1980's, continuing until August of 1993. This Court is clearly convinced that the Respondent's excessive consumption of alcohol impaired his judgment. This Court is convinced that the Respondent has been sober and alcohol free since August of 1993. Further, this Court is convinced that Respondent is sincerely embarrassed and remorseful for his actions."

THE ESTATE OF DONALD J. PETERS

"The Court finds the following facts by clear and convincing evidence.

1. In February, 1992, the Respondent was appointed Personal Representative of the Estate of Donald J. Peters, Sr., who died on December 5, 1991. Donald Peters had been a close personal friend of the Respondent for many years. In fact, the Respondent was Godfather to one of the deceased's three children. The Respondent was nominated to serve as Personal Representative of Donald J. Peters, Sr. estate in a will executed on April 19, 1968.

2. From February, 1992 until the Respondent was replaced as Personal Representative in July of 1993, the Respondent neglected his duties as Personal Representative in various respects. Specifically, the Respondent failed to file an Information Report, failed to file a timely Inventory, failed to file the First Administration Account in a timely manner, failed to respond to several notices from the Register of Wills, requiring him to show cause why he had not filed the appropriate documents.

3. In February of 1992, the Respondent opened an estate bank account into which he deposited funds that were assets of the Peters estate.

4. Beginning almost immediately after the estate account was opened, the Respondent made a series of unauthorized disbursements to himself by issuing checks payable to himself or to 'cash' from the estate account. The Respondent made 32 such disbursements, totaling $38,800.00. These disbursements were made from February 27, 1992, until September 9, 1992.

5. These disbursements were used to pay personal and office expenses of the Respondent.

6. The Respondent made these disbursements to himself without the knowledge or consent of the estate beneficiaries, and without seeking approval of the Orphans' Court for Baltimore County, or any other court.

7. The estate beneficiaries became dissatisfied with the Respondent's handling of their father's estate and sought other counsel in February of 1993.

8. The Respondent was requested to resign as Personal Representative and to allow Michael Peters, the deceased's son, to serve as Personal Representative. Michael Peters was a Certified Public Accountant practicing in Maryland.

9. The Respondent did not resign until June 17, 1993, the day of a hearing scheduled before the Orphans' Court on the beneficiaries' Motion to Remove Respondent as Personal Representative.

10. The Respondent admitted to the beneficiaries' new attorney, Michael May, Esquire, that he had made unauthorized withdraws from the estate account in the amount of $38,800.00 and used the funds for his personal purposes.

11. In April, 1993, the Respondent sent checks to Michael Peters, one of the beneficiaries, and the proposed new Personal Representative, in the amount of $40,974.01. This money was intended to reimburse the estate for the unauthorized withdraws of the Respondent, plus interest."

CONCLUSIONS OF LAW

"This Court concludes that Respondent has violated various provisions of the Maryland Lawyers Rules of Professional Also, the Respondent has violated Rule 8.4 MISCONDUCT. The actions of Respondent amount to the crime of theft. It should be noted that Respondent was convicted in a court trial before the Honorable Barbara K. Howe on February 14, 1995, of the crime of theft in criminal case No. 84 CR 2444. The charge against the Respondent involved the theft of $38,800.00 from the Estate of Donald J. Peters. A sentencing date of March 20, 1995, has been scheduled.

Conduct as adopted by Maryland Rule 1230. Specifically, the Respondent has violated Rule 1.1 COMPETENCE. The Respondent's failure to file the necessary estate papers in a timely fashion is a violation of both Rule 1.1 COMPETENCE and Rule [664 A.2d 856] 1.3 DILIGENCE. In addition, the Respondent has violated Rule 1.4 COMMUNICATION. Specifically, the Respondent did not keep his clients reasonably informed regarding the status of the estate. The Respondent failed to promptly comply with reasonable requests for information about the estate. The Respondent did not communicate with the beneficiaries of the estate regarding his withdrawal of estate property for his own purposes. In addition, the Respondent has violated Rule 1.15 of the Rule of Professional Conduct. This rule relates to safekeeping property. It goes without saying, that the Respondent's unauthorized withdrawal of $38,800.00 of estate property from the estate account and using said funds for his personal use is a violation of this rule.

Finally, this Court concludes that the Respondent violated Maryland Code, Section 10-306 of the Business Occupations and Professions Article. That section provides: 'A lawyer may not use trust money for any purpose other than the purpose for which the trust money is entrusted to the lawyer.[']"

COMPLAINT OF ROBERT F. LONG

"This Court finds the following facts by clear and convincing evidence.

1. The Respondent represented Robert and Christina Long in connection with their claims arising from a 1987 motor vehicle accident. The Respondent was a long time friend of the Longs. Following their automobile accident, the Longs moved from Maryland to Florida.

2. On February 12, 1993, West American Insurance Company issued a settlement draft in the amount of $16,000.00 made payable to Mr. and Mrs. Long and to the Respondent as their attorney. The draft was sent to the Respondent.

3. By letter dated February 16, 1993, the Respondent sent the settlement draft, along with the release, to be signed by the Longs and returned to the Respondent. The Respondent stated in his letter that he would deposit the draft in an escrow account and disburse the appropriate amount to the Longs after seven banking days.

4. The Longs signed the settlement draft and returned it to the Respondent as directed.

5. The Respondent deposited the settlement draft into his escrow account on February 22, 1993. He did not disburse the Long's portion of the settlement as promised in his letter.

6. The Respondent misappropriated the Long's settlement proceeds. He, in fact, did not maintain the funds in [a] trust account for his clients, but used the funds for his personal needs.

7. The Longs filed a complaint with the Attorney Grievance Commission.

8. Subsequent to that Complaint being filed, the Respondent paid to the Longs $17,000.00. The Respondent paid to the Longs the entire amount of the settlement, plus interest, in June of 1993."

CONCLUSIONS OF LAW

"It is the conclusion[ ] of this Court that the Respondent violated various provisions of the Maryland Lawyers Rules of Professional Conduct while representing Robert and It goes without saying, that the Respondent's conduct also violated Maryland Code Section 10-306 of the Business Occupations and Professions Article (1989). The use of this $16,000.00 which was entrusted to the Respondent's possession for the benefit of the Longs, without their consent, was a violation of this section."

Christina Long. Specifically, the Respondent violated Rule 1.3 DILIGENCE. The Respondent did not diligently and promptly forward the settlement funds and make disbursements as he was required to. Further, he violated Rule 1.4 COMMUNICATION. Specifically, the Respondent failed to keep the Longs reasonably informed as [to] the status of their settlement funds. He did not inform the Longs that he would use their settlement proceeds for his own purposes. In addition, the Respondent violated Rule 1.15 SAFEKEEPING[664 A.2d 857] PROPERTY and Rule 8.4 MISCONDUCT. The Respondent...