Attorney Grievance Comm'n Of Md. v. Brown

• Decision Date: 27 July 2010
• Docket Number: Misc. AG No. 3,2009.
• Citation: 415 Md. 269,999 A.2d 1040
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLANDv.Martin Bernard BROWN.
• Court: Maryland Court of Appeals

415 Md. 269

999 A.2d 1040

ATTORNEY GRIEVANCE COMMISSION OF MARYLANDv.Martin Bernard BROWN.

Misc. AG No. 3, Sept. Term, 2009.

Court of Appeals of Maryland.

July 27, 2010.

COPYRIGHT MATERIAL OMITTED

Fletcher P. Thompson, Asst. Bar Counsel (Melvin Hirshman, Bar Counsel, Atty. Grievance Commission of Maryland), for petitioner.

Charles G. Byrd, Jr. of Alston & Byrd of Baltimore, MD, for respondent.

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

ADKINS, J.

The Attorney Grievance Commission of Maryland (“AGC”), acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action (“Petition”) against Respondent Martin Bernard Brown. Bar Counsel charged Brown with violating the Maryland Rules of Professional Conduct (“MRPC”) in his capacity as representative of Roberto Garcia. Specifically, Bar Counsel alleged that Brown violated the following rules: (1) Rule 4.1 (Truthfulness in Statements to Others); ¹ (2) Rule 8.1 (Bar Admission and Disciplinary Matters); ² and (3) Rule 8.4 (Misconduct).³ Bar Counsel also charged Brown with violating Maryland Rule 16-609(a) and (b), which prohibits certain transactions with regard to attorney trust accounts:

Rule 16-609. Prohibited transactions.

a. Generally. An attorney or law firm may not borrow or pledge any funds required by the Rules in this Chapter to be deposited in an attorney trust account, obtain any remuneration from the financial institution for depositing any funds in the account, or use any funds for any unauthorized purpose.

b. No cash disbursements. An instrument drawn on an attorney trust account may not be drawn payable to cash or to bearer, and no cash withdrawal may be made from an automated teller machine or by any other method. All disbursements from an attorney trust account shall be made by check or electronic transfer.

Following a hearing before a judge of the Circuit Court for Baltimore City, the hearing judge issued Findings of Fact and Conclusions of Law, in which she found by clear and convincing evidence that Brown violated Maryland Rule 16-609 and MRPC Rules 4.1(a)(1), 8.1(a), 8.4(c) and 8.4(d).

The AGC's investigation of Brown was triggered by the complaint of Dianne L. Coston, the grantor of a mortgage to Hilda Nelson that had been assigned to Roberto Garcia. The hearing judge made the following findings of fact by clear and convincing evidence:

(1) Respondent, Martin Bernard Brown, Esq., was admitted as a member of the bar of the Court of Appeals of May 25, 1982 and maintains an office for the practice of law at 1714 St. Paul Street, Baltimore, Maryland 21202.

(2) Respondent has no disciplinary record.

(3) Complainant, Dianne L. Coston, is the owner of a residence at 407 Commonwealth Avenue.

(4) On April 27, 1994, she purchased the residence from the estate of her grand aunt, Alena Bacon. Her aunt, Hilda Nelson, daughter of Alena Bacon, was the personal representative and sole heir of the estate.

(5) In connection with this transaction, Ms. Coston executed a mortgage in favor of Ms. Nelson in the amount of $11,000.00.

(6) In December 2001, she refinanced the property through a commercial lender.

(7) As part of the refinancing, she was required to pay off the mortgage. At the time of the refinancing Hilda Nelson had died. The beneficiary of her estate and owner of the mortgage was her son, Roberto Garcia. Mr. Garcia and Ms. Coston are cousins.

(8) The initial check connected to this transaction was issued to the Estate of Hilda Nelson and was never cashed.

(9) On June 20, 2002, the lender issued a second check in the amount of $6,690.00 to respondent and Mr. Garcia. At the time of the issuance of the check, respondent was

representing Garcia in connection with another matter. He agreed to accept the check on behalf of Garcia.

(10) This check was endorsed by respondent and by Mr. Garcia and deposited in respondent's trust account on October 7, 2002.

(11) On October 7, 2002, respondent drew on his trust account a check to cash in the amount of $6,690.00, which he gave to Garcia. Respondent only endorsed the check.

(12) The lender did not send a release in conjunction with the check. Mr. Garcia never signed a release in connection with his receipt of the check. Respondent was not Ms. Coston's attorney and had no obligation to prepare a release for her.

(13) In 2004, Ms. Coston wanted to refinance her home again in order to make needed repairs.

(14) When she attempted to obtain a new loan, she learned that she could not do so because the mortgage had not been released.

(15) On October 18, 2004, Ms. Coston complained to Petitioner about the fact that respondent had not obtained a release of the mortgage from Mr. Garcia.

(16) On October 20 and November 15, 2004, Bar Counsel wrote to Respondent requesting an answer to Ms. Coston's complaint that she had not received a release from Respondent.

(17) On November 23, 2004, Respondent stated in a letter to Bar Counsel that before he received the complaint he had spoken to Complainant and subsequently “prepared the Release of Mortgage and mailed it to Mr. Garcia's address.”

(18) He further stated “Thereafter, I received a copy of your letter from Mrs. Coston indicating that Mr. Garcia was incarcerated.” Respondent said that he had spoken to Mrs. Coston twice since receiving the complaint and had advised her that he had sent a release to Mr. Garcia. He concluded his letter by stating “Once I learn where Mr. Garcia is incarcerated, I will forward a release of mortgage to him for his execution and subsequent filing in the Land Records of Baltimore County.”

(19) On December 3, 2004, Bar Counsel declined to take any further action on Ms. Coston's complaint.

(20) A copy of Respondent's letter was forwarded to Ms. Coston in connection with the dismissal of the complaint.

(21) On September 26, 2007, Bar Counsel wrote to respondent concerning the status of the release after receiving a telephone call from Mrs. Coston stating that she had never received one.

(22) On October 16, 2007, Respondent advised Bar Counsel in a letter that he had spoken to Mrs. Coston. He further represented: “Mr. Garcia never signed the release.” He proposed that Mrs. Coston file a petition to quiet title and that he would help her with this petition.

(23) Contrary to his representations to Bar Counsel and to Mrs. Coston, Respondent did not prepare or send to Mr. Garcia a release at any time. At the time Respondent made the statements to Bar Counsel and Ms. Coston, he knew that he had not sent a release to Mr. Garcia.

(24) Respondent admitted that he had not prepared or sent a release to Mr. Garcia in a statement under oath taken given to Assistant Bar Counsel Fletcher Thompson on March 24, 2008. This was the first time Respondent had advised either Bar Counsel's office or Ms. Coston that he had never sent any release to Mr. Garcia.

(25) By representing to Ms. Coston that he was attempting to obtain a release from Mr. Garcia when he was not doing so, Respondent contributed to Ms. Coston's delay in taking action on her own behalf. Through the efforts of Respondent's former counsel, Edward Smith, Esq., Ms. Coston has now obtained a release of the mortgage.

(26) Respondent's explanation for his initial representation to Bar Counsel in his letter of November 23, 2004 that he had sent a release to Mr. Garcia was that at the time he wrote the letter he intended to send a release but never followed through on this intention.

From these facts the hearing judge concluded that Brown violated all of the charged Rules. Specifically, she opined:

Respondent violated Maryland Rule 16-609, providing that “An instrument drawn on attorney trust account may not be drawn payable to cash or to bearer,” by drawing a check to the trust account to cash. Attorney Grievance Comm'n v. Harper, 356 Md. 53 (Md.1999).

Moreover, his representation to Ms. Coston and to Bar Counsel that he had sent a release to Mr. Garcia constitutes a violation of the Maryland Lawyer's Rules of Professional Conduct 4.1(a)(1), 8.1(a), 8.4(c) and 8.4(d). Rule 4.1(a)(1) provides that attorneys shall not make false statements of fact to third parties in the course of their representation of a client; Respondent's representations to Ms. Coston amounted to such false statements. Rule 8.1(a) provides that attorneys in connection with disciplinary matters shall not make false statements of material fact; Respondent's statements to Bar Counsel constitute a violation of this rule. Finally, Rule 8.4(c) and (d) provide that it is professional misconduct for attorneys to engage in conduct involving dishonesty, fraud, deceit or misrepresentation, or that is prejudicial to the administration of justice; the sum of Respondent's actions constitute such prohibited conduct.

DISCUSSION

Standard of Review

“In attorney discipline proceedings, this Court has original and complete jurisdiction and conducts an independent review of the record.” Attorney Grievance Comm'n v. McClain, 406 Md. 1, 17, 956 A.2d 135, 144 (2008).

Even though conducting an independent review of the record, we accept the hearing judge's findings of fact unless they are found to be clearly erroneous. This Court gives deference to the hearing judge's assessment of the credibility of witnesses. Factual findings by the hearing judge will not be interfered with if they are founded on clear and convincing evidence. All proposed conclusions of law made by the hearing judge, however, are subject to de novo review by this Court.

Attorney Grievance Comm'n v. Ugwuonye, 405 Md. 351, 368, 952 A.2d 226, 235-36 (2008) (citations omitted). Both parties are permitted to file “(1) exceptions to the findings and conclusions of the hearing judge and (2) recommendations concerning the appropriate disposition....” Md. Rule 16-758(b). If neither party files any exceptions, “ the Court may treat the findings of fact as established for the purpose of determining appropriate sanctions, if any.” Md. Rule 16-759(b)(2)(A).

Exceptions

Neither Bar...