Attorney Grievance Comm'n of Md. v. Brooks

• Decision Date: 27 August 2021
• Docket Number: Misc. Docket AG No. 71, Sept. Term, 2019
• Citation: 258 A.3d 266,476 Md. 97
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Gary Morgan BROOKS
• Court: Court of Special Appeals of Maryland

476 Md. 97

258 A.3d 266

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND

v.Gary Morgan BROOKS

Misc. Docket AG No. 71, Sept. Term, 2019

Court of Appeals of Maryland.

August 27, 2021

Argued by Jessica M. Boltz, Asst. Bar Counsel (Lydia E. Lawless, Bar Counsel, Atty. Grievance Commission of Maryland), for Petitioner.

Argued by Irwin R. Kramer, Reisterstown, MD, for Respondent.

Argued before: Barbera, C.J., McDonald, Watts, Hotten, Getty, Booth, Biran, JJ.

Biran, J. Respondent Gary Morgan Brooks operates a solo law practice in Baltimore City. On February 25, 2020, the Attorney Grievance Commission of Maryland (the "Commission"), acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action against Mr. Brooks, in connection with his administration of a small estate. Bar Counsel alleged that Mr. Brooks violated Maryland Attorneys’ Rules of Professional Conduct (the "MARPC"¹ ) 1.1 (competence), 1.3 (diligence), 1.4 (communication), 1.5 (fees), 1.7 (conflict of interest), 1.15 (safekeeping property), 8.4 (misconduct), and Maryland Rule 19-407 (attorney trust account record-keeping).

Under Maryland Rule 19-722(a), we designated the Honorable Kendra Y. Ausby of the Circuit Court for Baltimore City to conduct an evidentiary hearing in accordance with Maryland Rule 19-727 concerning the alleged violations and to issue findings of fact and conclusions of law. The evidentiary hearing was conducted via remote electronic participation under Maryland Rule 2-803 on December 10 and 11, 2020.

On February 9, 2021, the hearing judge filed with this Court an opinion containing her findings of fact and conclusions of law, as well as findings concerning aggravating and mitigating circumstances. The hearing judge concluded that Mr. Brooks violated multiple provisions of the MARPC as well as Maryland Rule 19-407. Bar Counsel and Mr. Brooks subsequently filed exceptions to the hearing judge's findings of fact and conclusions of law. On May 10, 2021, we heard oral argument regarding those exceptions and the parties’ recommendations as to an appropriate sanction.

For the reasons stated below, we conclude that Mr. Brooks violated MARPC 1.1, 1.3, 1.4(a)(2) and (3), 1.15(a) and (c), 8.4(a) and (d), and Maryland Rule 19-407(a)(3), and determine that a reprimand is the appropriate sanction.

IBackground

A. The Hearing Judge's Findings of Fact

We summarize here the hearing judge's findings of fact.

Background

Mr. Brooks was admitted to the Maryland Bar on June 17, 1992. Since 2004, he has maintained a solo practice in Baltimore City with a focus on bankruptcy, personal injury, and estates and trusts.

Mr. Brooks's Legal Work for Errol Ellis

In February 2013, Errol Ellis retained Mr. Brooks to draft a Last Will and Testament as well as a deed transferring title in his home. The deed provided that Mr. Ellis's wife, Tangy Ellis, would have a life estate in the property with the remainder to go to Mr. Ellis's adult children, Torria Ellis-Dugar and Jermaine Ellis, as joint tenants with the right of survivorship. Because of the strained relationship between Mr. Ellis's children and Mrs. Ellis, their stepmother, Mr. Ellis did not want any of the three to be the Personal Representative of his Estate; instead, the 2013 will named Mr. Brooks as the Personal Representative.

In June 2016, Mr. Ellis retained Mr. Brooks to draft a new will that provided for specific bequests to Mrs. Ellis, Ms. Ellis-Dugar, and Jermaine Ellis, with the remainder of the Estate to be divided among them. Because the relationship between Mrs. Ellis and the children remained acrimonious, Mr. Ellis again designated Mr. Brooks to serve as the Personal Representative of his Estate.

The Estate of Errol Ellis

Mr. Ellis (hereinafter "decedent") died on September 5, 2017, survived by Mrs. Ellis, Ms. Ellis-Dugar, and Jermaine Ellis (collectively, the "beneficiaries"). The beneficiaries met with Mr. Brooks on September 11, 2017. Mr. Brooks provided them with copies of decedent's life insurance policies and advised them of decedent's wish for the proceeds of a Midland National life insurance policy to pay the balance on the home mortgage and for the proceeds of another insurance policy to pay his funeral expenses. The assets of decedent's estate (the "Estate") included a 2002 Ford Escape bequeathed to Mrs. Ellis; a 1977 Chevrolet Corvette bequeathed to Ms. Ellis-Dugar; a 2014 Chrysler 300 bequeathed to Jermaine Ellis; $95.04 in an M & T Bank account; and some jewelry. The insurance policies and the home, which had already been transferred under the 2013 deed, were not assets of the Estate.

On September 14, 2017, Mr. Brooks emailed the beneficiaries, attaching a copy of decedent's 2016 will (the "Will"). In that email, Mr. Brooks advised the beneficiaries of the retainer he would require to open and administer the Estate: $2,000 for legal fees and $500 for ministerial fees for a total of $2,500. On September 18, 2017, Mr. Brooks met with Ms. Ellis-Dugar and Jermaine Ellis; Mrs. Ellis participated by phone. At that time, Ms. Ellis-Dugar signed a retainer agreement on behalf of the beneficiaries to hire Mr. Brooks to "represent and administer" the Estate. The retainer agreement stated that Mr. Brooks would provide the following services:

Completing the preliminary forms, including, but not limited to, Petition for Probate, Schedule(s); List of Interested Persons; coordination of creditors and expense payments; and coordination of estate assets, etc. Administering the Estate including, but not limited to, advising the Personal Representative; coordinating proper notice to creditors and payment of claims; completing any necessary reports; and closing the Estate.

The beneficiaries agreed to divide the cost of the $2,500 retainer. On September 18, Ms. Ellis-Dugar provided Mr. Brooks with a $2,500 check with the understanding that she was voluntarily covering the cost of Jermaine Ellis's portion of the retainer and would be reimbursed by Mrs. Ellis for Mrs. Ellis's portion. Mr. Brooks deposited the $2,500 check into his operating account. On September 26, 2017, Mrs. Ellis paid Mr. Brooks her portion of the retainer fee, which he deposited into his operating account. On October 7, 2017, Mr. Brooks issued Ms. Ellis-Dugar an $833.33 check from his operating account as reimbursement for Mrs. Ellis's portion of the retainer. Mr. Brooks did not have the beneficiaries’ informed consent, confirmed in writing, to deposit these funds into an account other than an attorney trust account.

On or about October 5, 2017, Mr. Brooks filed a Small Estate Petition for Administration and Schedule B with the Register of Wills for Baltimore County. Mr. Brooks signed the documents as the Estate's attorney and as its Personal Representative. The hearing judge found that the Schedule B ("Small Estate – Assets and Debts of the Decedent"), as filed by Mr. Brooks, contained multiple errors:

(1) [Mr. Brooks] listed the 2014 Chrysler 300 valued at $13,747.00; however, the vehicle was encumbered by a loan and had a fair market value of only $311.95; (2) [Mr. Brooks] reported the allowable funeral expenses as $15,096.38; however, [Md. Code Ann., Est. & Trusts (ET)] § 8-106(c)(2) provides that "[i]n no event may the allowance exceed $15,000 unless the estate of the decedent is solvent and a special order of [the] court has been obtained[;]" (3) [Mr. Brooks] failed to provide an amount for statutory family allowances. ET § 3-201(a) provides: "[t]he surviving spouse is entitled to receive an allowance of $10,000 for personal use[;]" and (4) [Mr. Brooks] also claimed expenses of administration in the amount of $2,109.00, which included his attorneys fees; however, expenses of administration are limited to the probate bond, fees associated with notice of the estate, and expenses associated with upkeep of the estate assets or transfer of the estate assets, and do not include attorneys fees.

(footnotes omitted). The Register of Wills corrected the Schedule B by reducing allowable funeral expenses to $15,000, reducing expenses of administration to $150, and writing in $10,000 for statutory family allowances.

On October 6, 2017, the Register of Wills issued an Order admitting the Will for probate and appointing Mr. Brooks as the Personal Representative. The Estate's legal notice was published in The Daily Record on October 12, 2017. Under ET § 8-103(a)(1), any claim against the Estate was required to be filed within six months of decedent's death, i.e. , by March 5, 2018. Discover Bank ("Discover") made a timely claim against the Estate.² Under ET § 8-106(b), Mr. Brooks was required to pay the funeral expenses of decedent by April 6, 2018, but failed to do so.

Including the Discover claim, the Estate had a deficiency of $16,603.04. Under ET § 8-105(a), if an estate's assets are insufficient to pay all claims in full, the personal representative is required to make payments as enumerated in the statute. In accordance with ET § 8-105(a), Mr. Brooks was obligated to disburse the Estate's assets as follows: (1) $150 to the Register of Wills; (2) $181.35 for costs and expenses of administration; and (3) all remaining assets to be disbursed to Ms. Ellis-Dugar for reimbursement of funeral expenses. Mr. Brooks failed to comply with ET § 8-105(a).

On November 27, 2017, Mr. Brooks emailed the beneficiaries and informed them of an additional debt to the Municipal Employees Credit Union ("MECU").³ He incorrectly advised the beneficiaries that the MECU debt and the Discover claim against the Estate would have to be paid by the Estate, and that the Estate would need to sell the vehicles to do so. To the contrary, the Estate was not required to pay the MECU debt, because MECU had not made a claim against the Estate as required by ET § 8-103(a). Further, due to the Estate's deficiency, the unsecured Discover claim had the lowest priority for payment under ET § 8-105(a), and even with the sale of the vehicles, the Estate would not likely have sufficient funds to...