Attorney Grievance Com'n of Maryland v. Bakas, No. 44

• Court: Court of Appeals of Maryland
• Writing for the Court: Argued before MURPHY; MURPHY; Jacobson; While noting that Bakas testified concerning his alcoholism during the period in question in an effort to mitigate his misconduct; In his supplemental findings; ROBERT M. BELL
• Citation: 323 Md. 395,593 A.2d 1087
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Gus BAKAS. Misc. (Subtitle BV),
• Docket Number: No. 44
• Decision Date: 01 September 1989

Page 395

323 Md. 395 593 A.2d 1087 ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
Gus BAKAS. Misc. (Subtitle BV) No. 44, Sept. Term, 1989. Court of Appeals of Maryland. Aug. 19, 1991.

[593 A.2d 1088]

Page 396

John C. Broderick, Asst. Bar Counsel, for the Atty. Grievance Com'n of Maryland.

David P. King, Baltimore, for respondent.

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

MURPHY, Chief Judge.

The Attorney Grievance Commission filed a petition for disciplinary action against Gus Bakas alleging violations of the Code of Professional Responsibility. Judge Leonard

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Jacobson of the Circuit Court for Baltimore County, to whom the matter was referred pursuant to Maryland Rule BV9 b, determined that Bakas had violated DR 1-102(A)(1), (4), (5), and (6); DR 6-101(A)(3); DR 9-102(B)(3) and (4); and also Maryland Code (1987 Repl.Vol.), Article 10, § 44, prohibiting lawyers from commingling personal and client escrow funds. ¹

In his memorandum opinion, Judge Jacobson concluded from the evidence adduced at the hearing that Douglas Sandhofer was injured in an automobile accident on September 30, 1983 and retained Bakas to represent him; that on June 1, 1984, Bakas settled Sandhofer's claim against the other driver for $7,750; that he also processed and collected Personal Injury Protection (PIP) benefits from two insurers on Sandhofer's behalf, totalling $3,315.75; and that the total recovery of $11,065.75 was [593 A.2d 1089] deposited into Bakas's escrow account on June 1, 1984. Judge Jacobson further

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found that on June 23, 1984, Bakas paid $6,742.25 to Sandhofer by check drawn upon his escrow account and that on November 6, 1984, Bakas paid $849.84 to Sandhofer by check drawn on his escrow account, for a total of $7,592.09.

Judge Jacobson determined from the evidence that between June 23, 1984 and November 6, 1984, Bakas drew checks against his escrow account for his own personal and professional benefit, and that during this period the balance of his escrow account fell below the balance which represented funds due to Sandhofer. The evidence further disclosed that Sandhofer was subsequently sued for unpaid medical bills related to the 1983 automobile accident, which should have been paid by Bakas.

Sandhofer filed a complaint against Bakas with the Attorney Grievance Commission. In the course of the ensuing investigation, Bakas advised the Commission, by letter dated June 23, 1986, that he had recovered $13,245.75 for Sandhofer; later, however, at the disciplinary hearing, Bakas claimed that he could not recall precisely how much he had recovered and that he had no supporting documentation concerning the matter.

Judge Jacobson found that the representation made to the Commission on June 23, 1986 was incorrect and that Bakas only recovered $11,065.75 on Sandhofer's behalf. He determined that Bakas had never provided an accounting of the funds received by him for Sandhofer and that he unlawfully commingled his personal funds with client funds in his escrow account between March 1984 and June 1986.

While noting that Bakas testified concerning his alcoholism during the period in question in an effort to mitigate his misconduct, Judge Jacobson made no finding of fact as to the existence of any causal relationship between the misconduct and the alleged alcoholism.

In an unreported opinion dated November 7, 1990, we remanded the matter to Judge Jacobson to determine whether there was a causal relationship between Bakas's misconduct and his alcoholism, as Bakas had maintained.

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In his supplemental findings, Judge Jacobson said that he had reviewed the entire record in the case and found no such causal relationship. He explained:

"While the Petitioner's case before this Court consisted entirely of five exhibits, the last of which was a transcript of the Respondent's client, the Complainant, before the Inquiry Panel, the Respondent's case consisted primarily of a recitation of the Respondent's personal and professional history, a report of a psychiatric evaluation and the testimony of Richard Vincent, an expert on alcoholism, who counseled the Respondent and got him into therapy while these proceedings were pending.

"Although the Petitioner's testimony and that of Mr. Vincent, as well as the report of Dr. McDaniel, present a picture of a life style of nearly 40 years dominated by the use and apparent abuse of alcohol, there is little or no direct evidence that such a life style and its predictable consequences caused the Respondent to act in the manner described in this case. The Respondent apparently handled the Complainant's case in a manner which the Complainant found to be satisfactory. The Complainant received the funds to which he was entitled and complained only of the Respondent's failure to pay his doctor's bill out of the proceeds of the settlement. Subsequent investigation conducted by the Commission revealed that in the course of processing the proceeds of the three settlements which the Respondent made on behalf of the Complainant, Respondent's escrow account fell below the balance which represented funds owed to his client. It also disclosed that the Respondent commingled his personal funds with his client's funds in his escrow account. Respondent's own testimony revealed that a $10,000.00 deposit to his escrow account, which he borrowed from relatives for the purposes of funding a settlement with his wife in his divorce case, was deposited in that account to avoid [593 A.2d 1090] attachment by the Internal Revenue Service. Respondent attempts to explain the lack of any documentary support for his version of the handling of his client's

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case by stating that his file was misplaced or lost when he was having some paint work done around his house."

Upon these factual findings, Judge Jacobson applied the "clear and convincing" evidence standard in determining whether Bakas's misconduct was causally related to alcoholism. He said:

"[T]his Court is unable to find that the misconduct ... was causally related to the Respondent's alcoholism. Although the Court concludes that the Respondent is, indeed, an alcoholic, he was described by his own witness, Mr. Vincent, as a maintenance alcoholic, one who is able to function. Mr. Vincent testified that '... the only way you find out (that the person is an alcoholic) is that something physical happens to them, such as cirrhosis, heart problem, heart attack.' The Respondent was able to handle a routine personal injury case and achieve an acceptable settlement. He was able to process two personal injury protection insurance claims and receive the correct payments from both insurers. He was able to make a nearly appropriate distribution to the client of 68% of the total proceeds (a usual one-third contingent fee would have yielded $215.66 less to the client, recognizing, however, that the application of the contingency to the PIP recovery was improper). The Respondent recalls having a file in this matter, even though he claims to have lost it. The Respondent recalls protecting his own funds from Internal Revenue levy by concealing them in his escrow account. This Court can only conclude that these acts were done knowingly and that the alcoholism from which the Respondent suffers, under the facts of this case, does not constitute a mitigating circumstance bearing on the sanction to be imposed."

After concluding that Judge Jacobson improperly applied the clear and convincing evidence standard of Maryland Rule BV10 d in determining whether Bakas had proved the causal relationship between his misconduct and his alcoholism, we again remanded the case for further consideration. We said that the clear and convincing standard did not

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apply to factual matters sought to be established in mitigation of his misconduct. We said that the preponderance of the evidence standard was the applicable measure of proof. See Attorney Griev. Comm'n v. Bakas, 322 Md. 603, 589 A.2d 52 (1991).

In his second supplemental findings of fact, Judge Jacobson determined that Bakas had not proved, by a preponderance of the evidence, that his misconduct was causally related to his alcoholism. Bakas took exception to this finding, claiming that it was entirely unsupported by the record and was, therefore, clearly erroneous. He contended that all of the evidence supported the conclusion of the requisite causal relationship, and he relied upon the report of Dr. Ellen McDaniel, an expert psychiatrist employed by the Commission, that Bakas's alcoholism "was the cause of the misconduct in the Sandhofer case." Additionally, Bakas points to his own testimony confirming the existence of his alcoholism and its causal relationship to his misconduct. He also refers to...