Attorney Grievance Comm'n of Md. v. Sperling

• Decision Date: 27 September 2013
• Docket Number: Misc. Docket AG No. 47,Sept. Term, 2009.
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Leonard J. SPERLING.
• Court: Maryland Court of Appeals

434 Md. 658

76 A.3d 1172

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND

v.Leonard J. SPERLING.

Misc. Docket AG No. 47, Sept. Term, 2009.

Court of Appeals of Maryland.

Sept. 27, 2013.

Glenn M. Grossman, Bar Counsel, Attorney Grievance Commission of Maryland, for Petitioner.

Alvin I. Frederick, Esquire (Mark P. Johnson, Eccleston & Wolf, P.C., Hanover, MD), for Respondent.

Argued before BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY,^*ADKINS, and BELL,^** JJ.

BELL, C.J.(Retired).

The Attorney Grievance Commission of Maryland (“the petitioner”), acting through Bar Counsel and pursuant to Maryland Rule 16–751(a),¹ filed a Petition for Disciplinary or Remedial Action against Leonard J. Sperling, (“the respondent”). The petitioner alleged that the respondent violated Rules 1.1, Competence; ² 1.5, Fees, both before and after its amendment; ³ 1.15, Safekeeping Property; ⁴ 4.2, Communication with Person Represented by Counsel; ⁵ 4.4, Respect for Rights of Third Persons; ⁶ and 8.4, Misconduct,⁷ of the Maryland Lawyers' Rules of Professional Conduct (“MLRPC”), as adopted by Maryland Rule 16–812, and Maryland Code (1989, 2004 Repl. Vol.) § 10–306 of the Business Occupations and Professions Article (“BOP”).⁸

Pursuant to Maryland Rule 16–752(a), we referred the Petition to the Honorable Michael J. Finifter of the Circuit Court for Baltimore County for the evidentiary hearing required by Maryland Rule 16–757.⁹ Following that evidentiary hearing, Judge Finifter issued Findings of Fact and Conclusions of Law pursuant to Maryland Rule 16–757(c)¹⁰:

“FINDINGS OF FACT AND CONCLUSIONS OF LAW

* * *

“I. Findings of Fact

“The Court finds the following facts to have been proven by clear and convincing evidence.

“The Respondent was admitted to the Bar of Maryland on June 23, 1967 and maintains an office for the practice of law at 1777 Reisterstown Road, Pikesville, Maryland 21208. The Respondent, who has served the community for more than forty-three years, describes his practice as successful and rewarding, having represented and assisted thousands of injured plaintiffs seeking to recover money after suffering personal injuries.

“The Respondent represented Michonda Lucas and Wanda Lee Thompson in connection with injuries each of them sustained in separate automobile accidents. Ms. Lucas's accident occurred on or about March 2, 2002. Ms. Thompson's accident occurred on or about February 26, 2003.

“In both cases, the clients and the Respondent executed a Subrogation, Assignment of Rights and Reimbursement Agreement (hereinafter “Agreement”), that assigned to the Food Employees' Labor Relations Association and United Food and Commercial Workers' Health and Welfare Fund (hereinafter “the Fund”) any amount recovered in connection with each of the automobile accidents to the extent of the benefits paid by the Fund on behalf of each of the clients. The Agreement executed by the Respondent and Ms. Lucas was signed on or about March 18, 2003 and the Agreement entered into evidence. Petitioner's Exhibit 1, sub-exhibit 1. The Agreement executed by the Respondent and Ms. Thompson was signed on or about April 11, 2003 and it, too, was entered into evidence. Petitioner's Exhibit 1, sub-exhibit 22.The Respondent executed both assignments that contained express provisions requiring the Respondent to ‘withhold and pay’ the ‘full amount due and owing to the fund without reduction for attorney's fees and costs.’ Petitioner's Exhibit 1, sub-exhibit 22, page 3. Although Respondent signed the Agreement in both Ms. Lucas's and Ms. Thompson's cases that assigned to the Fund any amounts recovered in connection with the automobile accidents to the extent of the benefits paid by the Fund on behalf of Ms. Lucas and Ms. Thompson ( Petitioner's Exhibit 1, sub-exhibits 1, 22 ), Respondent did not read the Agreement carefully before signing, but relied upon his experience working with other subrogation carriers.

“Ms. Lucas's claims were settled by the Respondent [o]n or about August 2003 for $9,900.00. Ms. Thompson's case was settled [o]n or about December 2003 for $16,232.00. After the Respondent settled their personal injury claims, both Ms. Lucas and Ms. Thompson were promptly paid their portions of the settlement funds.

“The Fund's lien in the Lucas case was for the amount of $1,413.56. The Fund's lien in the Thomas case was for $4,948.63. In both cases, the Respondent recovered sufficient funds to pay the Fund the full amount of its liens. Although the Fund's lien in Ms. Lucas's case was for the amount of $1,413.56, the Respondent's office was initially informed by the Fund that the Fund's lien in Ms. Lucas's case was for the amount of $884.90. Based upon that information, the Respondent maintained that amount for the Fund's lien in his trust account. There is no clear and convincing evidence that the Respondent's maintaining less than the correct amount of this lien was intentional. The Respondent did not maintain the entire amount of the Fund's lien in trust in the Thomas case. He held $4,893.00 in trust. The Respondent's failure to maintain the difference, $55.63, in trust, was not an intentional misappropriation, but was caused by inadvertence or a mathematical error.

“The Respondent did not pay the Fund's liens in each of the two cases, despite his obligation to do so, until on or about June 18, 2008, after a representative of the Fund filed a complaint with Petitioner.

“The Respondent communicated with the Fund's representatives in connection with his obligation to pay the Fund's lien between August 2003 and June 2008 in connection with the Lucas case, and between June 2003 and June 2008 in connection with the lien in the Thompson case. The Respondent did not communicate with the Fund or its representatives concerning Ms. Lucas'[s] lien between September 15, 2003 and August 20, 2004. The Respondent did not communicate with the Fund or its representatives concerning Ms. Lucas's lien between December 17, 2004 and October 31, 2005. The Respondent did not communicate with the Fund or its representatives between October 31, 2005 and April 28, 2006 concerning Ms. Lucas'[s] lien. The Respondent did not communicate with the Fund or its representatives between his letter to Ms. Dennis of August 22, 2006 and November 15, 2007.

“In Ms. Thompson's case, between June 13, 2003 and March 4, 2004, the Respondent and the Fund discussed on several occasions the recovery in Ms. Thompson's case and settlement of the Fund's lien. Petitioner's Exhibit 1, sub-exhibits 23, 24, 27. Thereafter, however, the Respondent, confronted with the same issues from Ms. Lucas's case, did not have any communication with the Fund or its law firm for approximately three and a half years.

“The Respondent received the letters addressed to him, of which a copy of each is attached to Petitioner's Request for Admission of Facts and Genuineness of Documents and each of said letters was entered into evidence. He drafted the letters executed by him, of which a copy of each is attached to Petitioner's Request for Admission of Facts and Genuineness of Documents and each of those letters was entered into evidence. He forwarded each of said letters to each of the addressees on or about the dates set forth thereon.

“The Respondent was aware of the obligation to maintain the amounts of the Fund's liens in trust and to pay the Fund for its liens pursuant to the requirements of Rule 1.15. He was aware of those requirements when the two cases were settled and he received the funds sufficient to pay the liens. He recalled having been sanctioned for a violation of that Rule in 1999. The Respondent did not pay the Fund the monies to which it was entitled until almost five (5) years after he received the monies with which to pay the Fund in the Lucas case ( Petitioner's Exhibit 1, sub-exhibit 4 ) and approximately four and a half years after he received the monies in the Thompson case. Petitioner's Exhibit 1, sub-exhibit 25. In Ms. Lucas's case, on August 15, 2003, the Respondent sent a letter to the Fund's law firm, Slevin & Hart, P.C., advising them that Ms. Lucas's settled for $9,900.00, and asking the Fund to waive its $884.90 lien in view of the fact that the special damages were $6,957.45. Petitioner's Exhibit 1, sub-exhibit 5. The response he received from the Fund's law firm was ‘no.’ No reduction in the lien for Ms. Lucas was acceptable. Petitioner's Exhibit 1, sub-exhibit 6. He did not respond. On August 20, 2004, more than eleven months later, and despite Respondent's letter of August 15, 2003 to counsel for the Fund advising of the Lucas settlement, counsel for the Fund asked Respondent to advise them of the outcome of the Lucas case and ‘If you have received a recovery, please advise of the source amount.’ Petitioner's Exhibit 1, sub-exhibit 8. On December 8, 2004, Respondent communicated with the Fund's law firm and he continued to press the Fund to reduce the lien which he erroneously set forth as $884.90 (instead of the correct amount of $1,413.56 that was communicated to him in September of 2003). Petitioner's Exhibit 1, sub-exhibits 6, 9. He wanted the firm to agree to a ‘low ball park figure’ to close out the matter. The fund's law firm replied on December 13, 2004 in an attempt to set the record straight: the lien amount was not $884.90 but was $1,413. 56; the Fund (as stated in its letter of more than a year before) would not waive its lien and would not accept a reduction. Petitioner's Exhibit 1, sub-exhibit 10. On December 15, 2004, the Respondent sent a letter to the Fund's law firm, referring to the Respondent's alleged entitlement to an ‘attorney's fee, which is accepted at one-third.’ Petitioner's Exhibit 1, sub-exhibit 11. The Respondent did not lie to or mislead the Fund about the fee. The Respondent testified that the demands for a fee were, in reality, simply a ‘tool’ to achieve a larger payout for his client. His stated objective in dealing with the Fund was to obtain...