Attorney Grievance Comm'n of Md. v. Carithers

• Decision Date: 11 August 2011
• Docket Number: 2010.,Sept. Term,Misc. Docket No. AG 18
• Citation: 421 Md. 28,25 A.3d 181
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLANDv.Michael Robert CARITHERS, Jr.
• Court: Maryland Court of Appeals

421 Md. 28

25 A.3d 181

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND

v.Michael Robert CARITHERS, Jr.

Misc. Docket No. AG 18

Sept. Term

2010.

Court of Appeals of Maryland.

July 18, 2011.Reconsideration Denied Aug. 11, 2011.

Marianne J. Lee, Assistant Bar Counsel (Glenn M. Grossman, Bar Counsel, Attorney Grievance Commission of Maryland), for Petitioner.Edward Smith, Jr., Esquire, Baltimore, MD, for Respondent.

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

Michael R. Carithers, Jr., Respondent, was admitted to the Bar of this Court on September 26, 2006. On April 30, 2010, the Attorney Grievance Commission (“Petitioner” or “Bar Counsel”), acting pursuant to Maryland Rule 16–751(a),¹ filed a “Petition for Disciplinary or Remedial Action” against Respondent, charging several violations of the Maryland Rules of Professional Conduct (“MRPC”) including 1.15(a) (Safekeeping Property) ² and 8.4(a)-(d) (Misconduct),³ stemming from the deposit of unearned fees into his personal account. In accordance with Maryland Rule 16–752(a),⁴ we referred the matter to the Honorable Kendra Y. Ausby, of the Circuit Court for Baltimore City, to conduct an evidentiary hearing and to render findings of fact and recommend conclusions of law. In response to our request, Judge Ausby held an evidentiary hearing on January 5 and 6, 2010, and, pursuant to Rule 16–757(c),⁵ rendered the following findings of fact and conclusions of law.

Findings of Fact

[Respondent] earned his J.D. at the University of Michigan Law School and is admitted to practice law in the District of Columbia, Michigan and Maryland. In 1991, after law school, [Respondent] was an associate with the firm Ross, Dixon & Masbeck located in the District of Columbia. In 1993, [Respondent] found another position as an associate with the firm Galon, Carash, Morris & Garfinkel. In 1999, Respondent took a position with the Office of the General Counsel at Ford Motor Company in Dearborn, Michigan. In 2000, [Respondent] was an associate at the law firm of Collier, Shannon and Scott located in the District of Columbia. In March of 2003, Respondent was “of counsel” with the firm of Kevin Marino, P.C. located in Newark, New Jersey. From June of 2003 through September of 2003, [Respondent] was unemployed. From September of 2003 until October of 2003, Respondent took a position with the City Solicitor's Office in Baltimore, Maryland. From October of 2003 through May of 2005, [Respondent] was “of counsel” with the firm Greenberg Traurig, LLP located in the District of Columbia.

During March of 2003 through May of 2003, [Respondent] held an “of counsel” position while working at the firm of Kevin Marino, P.C. The position “of counsel” was not defined. [Respondent] was paid by Mr. Marino and handled both Mr. Marino's cases and cases of his own. [Respondent] handled his own clients independently and did not enter his own clients into the Kevin Marino, P.C. client database.

During October of 2003 through May of 2005, [Respondent] held an “of counsel” position while working at the firm of Greenberg Traurig, LLP. [Respondent] maintained his own clients and handled cases for Greenberg Traurig, LLP. [Respondent] did not enter his own clients into the Greenberg Traurig, LLP client database.

In August of 2005, the Respondent was hired at the [Baltimore-based] firm of Brown & Sheehan, LLP (hereinafter “B & S”). Michael Alan Brown, Esquire (hereinafter “Mr. Brown”) and David Sheehan, Esquire (hereinafter “Mr. Sheehan”) were the only two equity partners at the firm of B & S. Mr. Brown was the managing partner of the firm and was responsible for generating work throughout the firm, maintaining day-to-day activities, and managing the employees at B & S. Mr. Sheehan was the administrative managing partner of the firm and was responsible for bookkeeping and administration of the firm with respect to purchasing, billing, collecting and managing the accounts. In 2005, the firm of B & S had approximately fourteen (14) to sixteen (16) attorneys, consisting of equity and non-equity partners, of counsel attorneys, and associates. The attorneys at B & S were required to bill one-thousand eight-hundred (1,800) billable hours per year.

[Respondent] was hired by Mr. Brown as “of counsel” at the firm of B & S. There was no written contract regarding the Respondent's employment at B & S, including any written contracts or memoranda regarding the Respondent's “of counsel” position at the firm. The Respondent was hired as a full-time employee of B & S, with a full-time salary of approximately ninety thousand dollars per year ($90,000), including vacation and sick days, and various benefits including health, disability, life insurance, malpractice insurance, and a 401k plan. This was the same arrangement for associates at B & S. However, during the Respondent's interview with B & S, it was determined that considering the Respondent's experience, the Respondent would hold an “of counsel” designation at the firm in order to denote a more senior status than an associate. There was no agreement between the Respondent and Mr. Brown or Mr. Sheehan, that Respondent could maintain a side practice. On December 13, 2007, the Respondent signed an acknowledgment form, indicating that he had received the B & S personnel handbook.

The Respondent was an attorney with B & S from August of 2005 through June of 2008. During the Respondent's employment with B & S, he was a panel attorney under the Criminal Justice Act (CJA) for the United States District Court for the District of Maryland. After the Respondent completed a case for the CJA, the Respondent would submit a voucher with timesheets that would include the number of hours multiplied by the CJA established hourly rate. The voucher would be submitted to the coordinator of the CJA and after a period of 30 to 90 days, the Respondent would receive a check for both legal fees and out of pocket expenses. During Respondent's employment at B & S, the Respondent only received two checks from the CJA. The Respondent deposited the two checks into his personal checking account, then issued cashier's checks to B & S for the original amount, less his out of pocket expenses. The first CJA check was in the amount of two-thousand seven-hundred and five dollars and twenty cents ($2,705.20), of that amount, the Respondent took out sixteen dollars and eighty cents ($16.80) for his out of pocket expenses. The second CJA check was in the amount of six-thousand seven-hundred and six dollars ($6,706.00), of that amount, the Respondent took out two-hundred and thirty-two dollars ($232.00) for his out of pocket expenses. The Respondent deposited the checks in order to receive his out of pocket expenses because it was difficult to receive such reimbursements from B & S in a reasonably timely manner.

The Respondent admits that he had a side practice while employed at B & S. The Respondent deposited checks received from clients in his side practice into his personal account. The Respondent did not maintain a trust account for his side practice and all payments were deposited into his personal account. The Respondent did not maintain separate malpractice insurance and did not create a separate entity for his side practice. Further, the Respondent did not initially report any of the income received from his side practice from 2005 through 2008 to the Internal Revenue Service (IRS). However, the Respondent had to file amended returns regarding taxable income received from his side practice.

During the Respondent's employment at B & S, the Respondent opened a number of cases on his own without entering them into the B & S client database, while receiving payments using the B & S billing statements and using B & S resources. The Respondent acknowledged that he used B & S retainer agreements, B & S letterheads and stationary for clients for his side practice. The Respondent acknowledged that he represented clients of his side practice during the hours that he was at B & S. Further, the Respondent retained several clients that were previously B & S clients, but had been terminated by B & S for failing to pay their legal fees. The following are examples of the Respondent's side practice while at B & S:

Representation of Patsy Stewart: The Respondent represented Patsy Stewart, who was entered into the B & S client database and had executed a B & S retainer agreement dated September 27, 2007. The Respondent fabricated a billing statement in order for it to look similar to the B & S billing statement form and sent Ms. Stewart a letter and billing statements using B & S letterhead. On September 27, 2007, the Respondent directly received an initial retainer of one-thousand dollars ($1,000.00) from Ms. Stewart and deposited the check into his personal account. However, the Respondent did not begin work on Ms. Stewart's matter until September 28, 2007. Further, the Respondent requested that Ms. Stewart forward all payment to Respondent's personal address.

Representation of Leona Victors: The Respondent represented Leona Victors as a side practice client after B & S terminated Ms. Victors as a client for failing to pay B & S legal fees. Ms. Victors was entered into the B & S client database and had executed a B & S retainer agreement on B & S letterhead. The Respondent entered billable hours for work done on Ms. Victors' case into the B & S billing system. However, the Respondent directly received payments from Ms. Victors and deposited the checks into his personal account. The Respondent had regular meetings with Ms. Victors outside of the B & S office, specifically at McDonald's restaurant and at a hotel.

Representation of John Paul Lennon: The Respondent represented John Paul Lennon as part of his side practice. Mr. Lennon was entered into the B & S client database and had executed a B & S retainer agreement on B & S letterhead. The Respondent entered...