Attorney Grievance Comm'n of Md. v. Harmon
| Decision Date | 19 August 2013 |
| Docket Number | Misc. Docket AG No. 44 |
| Parties | ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. ANTHONY MAURICE HARMON |
| Court | Court of Special Appeals of Maryland |
Attorney Grievance Commission of Maryland v. Harmon, Misc. AG No. 44, September Term 2010.
An indefinite suspension with the right to apply for reinstatement after no less than six months is the appropriate sanction where an attorney violated MLRPC 1.15 and 8.1(b), in addition to Maryland Rules 16-606.1, 16-607, and 16-609. The attorney did not maintain adequate records regarding his attorney trust account, commingled personal and client funds, received cash disbursements from his attorney trust account, and failed to respond to communications from Bar Counsel. Additionally, because the attorney failed to adequately establish on the record below, and the hearing judge made no findings regarding, the "evidence" presented in mitigation at oral argument before the Court, the Court did not consider it when raised for the first time before the Court of Appeals.
Case # CAE10-35231
* Bell, C.J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion.
Petitioner, the Attorney Grievance Commission ("AGC"), acting through Bar Counsel, filed, in accordance with Maryland Rule 16-751,1 a Petition for Disciplinary or Remedial Action ("the Petition") against Anthony Maurice Harmon ("Respondent") for violations of the Maryland Lawyers' Rules of Professional Conduct ("MLRPC"). Petitioner contends that Respondent commingled funds and failed to properly maintain an attorney trust account and related financial records, in violation of MLRPC 1.15 (Safekeeping Property)2 and 8.1(b)(Bar Admission and Disciplinary Matters),3 as well as Maryland Rules 16-606.1 (Attorney Trust Account Record-Keeping),4 16-607 (Commingling Funds),5 and 16-609 (Prohibited Transactions).6 ,7 In accordance with Maryland Rule 16-752(a),8 we referred the Petition to the Honorable Toni E. Clarke of the Circuit Court for Prince George's County for an evidentiary hearing and to make findings of fact and conclusions of law in accordance with Maryland Rule 16-757.9
Respondent was personally served with the Petition on November 22, 2010. He did not file an answer within fifteen days of service, as required by Maryland Rule 16-754.10 The same day Respondent was served with the Petition, he was served with Petitioner's Requests for Admission of Facts and Genuineness of Documents. Harmon did not respond either to those requests.
Because Harmon did not file an answer, Petitioner filed, on March 1, 2011, a Motion to Extend Time for Judicial Hearing with this Court, see generally Md. Rule 16-757(a) (), so that the Circuit Court could enter an order of default. See Md. Rule 16-754(c) (); Md. Rule 2-613 (). We granted Petitioner's motion, thus extending the time for completion of the hearing until April 12, 2011. Petitioner filed a Motion for Order of Default with the Circuit Court on March 4, 2011, which was granted by Judge Clarke on March 9, 2011. The Order of Default and notice that a hearing was scheduled for April 12, 2011 were mailed to the three known addresses of Harmon.
Maryland Rule 2-613 (d) provided Respondent with thirty days to move to vacate the Order of Default or otherwise respond to the Notice of Order of Default. Respondent did nottake any action during this time. Respondent appeared at the April 12 hearing, however, with an Opposition to the Motion to Default11 and an Answer to the Petition. Respondent argued that his failure to timely file an Answer was due to family and personal problems, including divorce, foreclosure, and the death of a family member. Finding that Respondent did not satisfactorily substantiate any averment meeting the standard for vacating the Order of Default under Maryland Rule 2-613(d),12 the Circuit Court denied Respondent's motion. The factual averments made in the Petition were, therefore, deemed admitted, see Md. Rule 2-323(e) (); Attorney Grievance Comm'n v. Lee, 390 Md. 517, 524, 890 A.2d 272, 277 (2006), as were the matters contained in the Requests for Admission of Facts and Genuineness of Documents previously served on, but never responded to by, the Respondent. See Md. Rule 2-424(b) ().
Following the evidentiary hearing, at which Respondent was permitted to participate, Judge Clarke issued her Findings of Fact and Conclusions of Law, in which she concluded, by clear and convincing evidence, that Respondent violated MLRPC 1.15 and 8.1(b), and Maryland Rules 16-606.1, 16-607, and 16-609. Harmon filed with this Court, one day before oral argument, an Opposition to the Petitioner's Recommendation for Sanction. Petitioner did not receive a copy of Harmon's Opposition until the day of oral argument, and accordingly asked this Court to strike Harmon's Opposition as untimely.
Harmon maintained an attorney trust account at Bank of America. On or about June 10, 2009, Harmon authorized the transfer of $500 from his attorney trust account to a personal account of his. At the time the transfer was authorized, however, the attorney trust account did not have sufficient funds. As a result, the attorney trust account was overdrawn in the amount of $101.50.
On or about July 22, 2009, Bar Counsel13 mailed a letter to Respondent to inform him of the overdraft and request that Respondent provide an explanation for the overdraft and copies of his financial records. Harmon did not respond to Bar Counsel's request.
Bar Counsel mailed a second letter to Harmon on or about August 19, 2009, regardingthe overdraft. On or about August 22, 2009, Harmon responded to Bar Counsel's inquiry, stating that the overdraft occurred after he deposited a retainer check from a client and subsequently transferred $500 to his business checking account to pay rent for his office space. He also provided records indicating that, on June 8, he deposited $200 in his attorney trust account. On June 10, however, a $200 charge-back was made to the account.
On or about September 14, 2009, Bar Counsel mailed a third letter to Harmon, asking for further information regarding the transactions leading to the June 10 overdraft. Specifically, Bar Counsel requested a copy of the $300 payment to the attorney trust account constituting the difference between the $200 deposited on June 8 and the $500 transferred on June 10. Harmon did not respond. On October 7, Bar Counsel mailed a fourth letter, asking Harmon to respond within seven days. Harmon, again, failed to respond. On or about November 13, 2009, Bar Counsel mailed a fifth letter to Harmon, informing him that the matter was upgraded to a docketed case and requesting a response within fifteen days. Harmon did not respond. Bar Counsel mailed another letter on or about December 17, by both certified and first-class mail. Although the letter sent by certified mail was returned as "unclaimed" to Bar Counsel by the postal service, the letter sent first-class was not.
On January 25, 2010, an investigator for Bar Counsel delivered to Harmon a copy of an investigative subpoena, issued to Bank of America, for production of Harmon's trust account records. At that time, Harmon gave to the investigator a letter for Bar Counsel dated September 22, 2009. Bar Counsel had not previously received the letter. On January 25,Harmon spoke to an Assistant Bar Counsel by telephone. During that conversation, he confirmed that his mailing address was a post office box in Largo (to which Bar Counsel had previously mailed its correspondence), and stated that he generally retrieved his mail from the post office box two or three times a week.
On or about February 1, 2010, Harmon wrote to Bar Counsel and explained that, in addition to the $200 deposited into his attorney trust account on June 8, he had also received and deposited $300, purportedly for legal services already rendered, from another client named Goldsmith. According to the Bank of America records received by Bar Counsel, however, the $300 was received by Harmon from an individual named William Phillips.
Moreover, the Bank of America records showed that Harmon made occasional transfers from personal Bank of America accounts into his attorney trust account. For example, on September 2, 2009, Harmon made two separate transfers into his attorney trust account, in the amount of $900 and $1,700, from a personal account. He also deposited, on at least two occasions into his attorney trust account, funds received by him as rental payments on property that he owned personally. On at least one occasion, a counter debit on March 25, 2009, Harmon withdrew funds in cash from his attorney trust account. Additionally, the hearing judge noted that Harmon failed to maintain records, made contemporaneously with the disbursements and deposits from and into his...
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