Attorney Grievance Com'n of Maryland v. Glenn

• Decision Date: 01 September 1994
• Docket Number: No. 1,1
• Citation: 671 A.2d 463,341 Md. 448
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. John Wheeler GLENN. Misc. (Subtitle BV),,
• Court: Maryland Court of Appeals

Page 448

341 Md. 448

671 A.2d 463

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. John Wheeler GLENN.

Misc. (Subtitle BV), No. 1, Sept. Term, 1994.

Court of Appeals of Maryland.

Feb. 8, 1996.

[671 A.2d 464]

Melvin Hirshman, Bar Counsel, and John C. Broderick, Assistant Bar Counsel, for the Attorney Grievance Commission of Maryland, for Petitioner

John Wheeler Glenn, Baltimore, pro se.

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

RAKER, Judge.

The Attorney Grievance Commission, acting through Bar Counsel, filed a petition with this Court for disciplinary action against John Wheeler Glenn, Respondent, alleging violations of the Rules of Professional Conduct. The Attorney Grievance Commission charged Respondent with violating Rule 1.15(a), Rule 5.3(a), (b), and (c), Rule 8.4(c); Rules BU4, BU7, and BU9; and Maryland Code (1989, 1995 Repl.Vol., 1995 Supp.) § 10-306 of the Business Occupations and Professions Article. ¹ We referred the matter, pursuant to Maryland Rule BV9(b), to Judge Clifton J. Gordy of the Circuit Court for Baltimore City, to make findings of fact and conclusions of law in accordance with Maryland Rule BV11(a). After an evidentiary

hearing, Judge Gordy concluded that Respondent violated Rule 1.15(a), Rule 5.3(b) and (c), Rule 8.4(c), Rule BU9, and § 10-306. Judge Gordy found that Bar Counsel had not proved by clear and convincing evidence that Respondent had violated Rule 5.3(a), Rule BU4, and Rule BU7. Respondent filed exceptions to certain findings and conclusions in this matter

I.

Judge Gordy held an evidentiary hearing and filed an extensive report. We set forth below his findings of facts and conclusions of law.

BACKGROUND FACTS

Respondent is an attorney, licensed to practice law in the State of Maryland since 1963. Respondent is fifty-seven (57) years old. He currently practices law with the firm of Preston & Glenn located in Baltimore. Respondent has had no prior complaints filed against him by the Attorney Grievance Commission. From 9/01/87 through 9/92, Respondent was the sole principal in the law firm of Preston and Glenn.

Prior to 1987, Respondent was never exposed to bookkeeping or accounting. Before he formed the firm of Preston & Glenn, he and his former partners employed a full-time bookkeeper, Mrs. Waldred Borman until 1985. After she retired, Mrs. Roger Smith, the wife of the firm's partner, was hired as the firm's full-time bookkeeper. Mrs. Smith had experience bookkeeping previously for a car dealership in Anne Arundel County.

Roger Smith decided to open an office in Glen Burnie, and Mrs. Smith worked there as the sole bookkeeper for the firm. Thereafter in August, 1987, Roger Smith decided to leave the firm entirely, so he and Respondent divided the firm account equally. The firm savings account was equally divided, and Respondent retained the shortage list that Mrs. Smith comprised. Mr. Smith kept his client's; Respondent kept his clients. The total funds retained on behalf of the clients in escrow for Preston and Glenn was two thousand, seven hundred and thirty-one dollars and fifty-eight cents ($2,731.58). The remaining firm monies that resulted from the division of the original firm account were deposited into the escrow account retained by Preston and Glenn to compensate for the existing shortage.

The bookkeeper employed by Preston and Glenn, was Donna Grace. Donna Grace had previously been employed by Respondent in the capacity of administrative secretary when she became the firm's part-time bookkeeper.

Terri Jarman became bookkeeper for Respondent on March 4, 1989 and her bookkeeping responsibilities continued up until November 9, 1990.

She advised the Respondent that she was concerned that the escrow account was in the "same jumble" as the firm ledger book. She testified that she could not "figure out" the escrow account. Ms. Jarman asked Respondent twice if she could get assistance with the escrow account. The Respondent advised her that accountants could be called in to assist her with the firm account, but he felt that there was no need to "straighten out" the escrow account at that time.

Toni Durham, Sandra Trueth and Patricia Bailey were hired as bookkeepers in succession on November 10, 1990; April 26, 1991; and October 19, 1991, respectively.

Beginning August 31, 1987, Preston and Glenn established its own bookkeeping department. An office manual was prepared to set forth the expectations and responsibilities of the bookkeeper.

Toni Durham became the bookkeeper in November 10, 1990, and continued in that capacity until April 25, 1991. Toni Durham testified that she never reviewed the escrow account bank statements when she began working at Preston and Glenn. Rather, she just referred to the balance of the checkbook and the ledgers.

Respondent was the only individual with signature authority on the escrow account. Whenever a check was written against the escrow account, it was sent to the Respondent with a note indicating the balance.

FACTS RELEVANT TO THE HILNBRAND MATTER

On July 12, 1990, the Respondent received settlement funds on behalf of his clients, the Hilnbrand file. Those funds were deposited on the same day, in the amount of twenty thousand, five hundred dollars ($20,500.00). Then, Respondent extracted monies from the escrow, in the amount of five thousand, one hundred and twenty-five dollars ($5,125.00), which was due to him in exchange for his legal services.

On February 22, 1991, there was supposed to be fifteen thousand, eight hundred and eighty-four dollars and seventy-one cents ($15,884.71) in the escrow account on behalf of the Hilnbrands. Before the Hilnbrands received their first check the balance of the escrow account was only thirty-three hundred and fifteen dollars and thirty-nine cents ($3315.39). On February 22, 1991, the Respondent disbursed, to the Hilnbrands, a check for two thousand, four hundred and four dollars and thirteen cents ($2,404.13). This was the first check written to Judith Hilnbrand in connection with the settlement. After that check was written, the balance in the escrow account was nine hundred and eleven dollars and twenty-six cents ($911.26). Thereafter, the Hilnbrands were furnished twenty-five hundred dollars on 8/14/91. Before that check was issued to them, Respondent was responsible for thirteen thousand, four hundred and forty-eight dollars ($13,448.00) in trust for the Hilnbrands. At least twice, after settlement, the escrow account revealed balances that indicated there were monies out of trust.

Although the funds from the Hilnbrand settlement were received by Respondent on July 12, 1990, the first disbursement thereof to the client was not until February 1991. The delay was attributed to resolving a subrogation matter involving H.M.O. and the Hilnbrands were aware of the reason for the delay.

When Respondent informed the Hilnbrands, in August of 1990, that there were complications in regard to satisfying the outstanding medical balances, the Hilnbrands responded that they understood and, furthermore, "do not want that kind of money in their bank account." The Hilnbrands requested that Respondent withhold distribution of the settlement funds until their son received his college grant.

Then, in February 1991, Mr. Harry Hilnbrand requested, via telephone, that Respondent keep fourteen thousand, eight hundred and eighty-three dollars and twenty-seven cents ($14,883.27) in trust, and send the rest to them. Hence, in February, 1991, Respondent was still responsible for the safekeeping of at least fourteen thousand, eight hundred and eighty-three dollars and twenty-seven cents ($14,883.27) on behalf of the Hilnbrands. The escrow account for the month of February showed a balance as low as three thousand, three hundred and fifteen dollars and thirty-nine cents ($3,315.39).

On or about November 21, 1991, Respondent issued a check to the Hilnbrands in the amount of two thousand dollars ($2,000.00). At the time of that disbursement, the Hilnbrands still had seventy-four hundred and forty-eight dollars and eight cents ($7,448.08) entrusted with Respondent. The escrow balance was sufficient to pay that outstanding obligation to the Hilnbrands. But, the Wolfs, also Respondent's clients, would not have been able to receive all their funds in the escrow due to them had they requested their money at that time.

On May 27, 1992, the balance in the escrow account totalled three hundred and forty-five dollars and forty-one cents ($345.41). The Hilnbrands, however, were still due monies from their settlement which was an excess of twelve thousand dollars ($12,000.00). Therefore, Respondent was over $12,000 out of trust in regard to the Hilnbrands. The Respondent explains in that instance that the money "obviously had been previously transferred from the escrow to the firm account."

According to the testimony of Sterling Fletcher, who was assigned as an investigator by the Attorney Grievance Commission of Maryland in connection with this case, at least six clients have suffered a negative balance in regard to their individual funds due them in the escrow account. He further testifies that one of the bookkeepers, Toni Durham or Terri Jarman, mentioned to him, during an interview associated with his investigation, that there were shortages in the escrow account, and moreover, Respondent instructed them to transfer funds from the escrow account to the firm account for the purpose of satisfying payroll. ²

FACTS RELEVANT TO THE WOLF MATTER

The settlement memorandum for Frank and Agnes Wolf was prepared on October 2, 1991. The settlement resulted in a total of thirty-one thousand dollars ($31,000.00), and a deposit was made on their behalf on September 23, 1991. The attorneys' fees and expenses totalled nine thousand, three hundred and thirty-three dollars and thirty-three ($9,333.33). According to the settlement memorandum, the Wolfs were entitled...