Attorney Grievance Comm'n of Md. v. Bonner
| Citation | 477 Md. 576,271 A.3d 249 |
| Decision Date | 03 March 2022 |
| Docket Number | Misc. Docket AG No. 51, Sept. Term, 2020 |
| Parties | ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Keith M. BONNER |
| Court | Court of Special Appeals of Maryland |
Argued by Lydia E. Lawless, Bar Counsel (Attorney Grievance Commission of Maryland), for Petitioner.
Argued by Courtney Miller, Harris, Wiltshire & Grannis, LLP, Washington, DC, for Respondent.
Booth, J. "How much more grievous are the consequences of anger than the causes of it."
Aurelius, Marcus. 2014. Meditations . Translated by Martin Hammond. Penguin Pocket Hardbacks. London, England: Penguin Classics.
In this attorney grievance proceeding, we must determine the sanction to impose for an attorney's misconduct involving misappropriation of funds from his law firm in which he was a founding partner and member for decades. Respondent Keith Bonner freely admits to the facts of the misconduct and resulting violations of the professional ethical rules applicable to his misconduct. The case he presents to this Court in his defense relates almost exclusively to the mitigating factors that this Court should consider when imposing a sanction (in addition to one aggravating factor to which he excepts). Specifically, he asserts that he has shown sufficient mitigating circumstances to justify a deviation from our case law, which generally imposes the sanction of disbarment where an attorney's misconduct involves theft or intentional misappropriation of funds. Prior to our consideration of the sanction, as we always do, we shall describe the procedural history, as well as the hearing judge's findings of fact and conclusions of law. We shall then discuss our case law concerning sanctions where intentional misconduct involves theft or misappropriation, as well as Mr. Bonner's argument that we should consider the emotional problems that he experienced during the period of his misconduct—anger, frustration, and feelings of entitlement and self-righteousness—as a mitigating factor in this case, along with the other mitigating factors that are present here, which he asserts warrant the imposition of a sanction less than disbarment.
On November 30, 2020, the Attorney Grievance Commission of Maryland ("Commission"), acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action ("Petition") against Respondent Keith M. Bonner, in connection with his misappropriation of funds from his former law firm. The Petition alleged that Mr. Bonner violated the Maryland Attorneys' Rules of Professional Conduct 19-308.4(a), (b), (c) and (d).1 Thereafter, Bar Counsel filed an Amended Petition, asserting that, in the event that the Court determined that under the choice of law provisions set forth in Maryland Rule 8.5(b), the District of Columbia Rules of Professional Conduct ("D.C. Rules") applied to the underlying conduct, then Mr. Bonner's conduct violated D.C. Rules 8.4(a), (b), (c), and (d).
Pursuant to Maryland Rule 19-722(a) and 19-727, this Court designated the Honorable Harry C. Storm of the Circuit Court for Montgomery County ("hearing judge") to conduct a hearing regarding the alleged violations and to make findings of fact and conclusions of law. The hearing judge held an evidentiary hearing over Zoom for Government on April 26 and 27, 2021. Following the hearing, Bar Counsel withdrew the charge relating to a violation of D.C. Rule 8.4(d).
Following the hearing, the hearing judge issued written Findings of Fact and Conclusions of Law. The hearing judge applied the choice of law provisions in Maryland Rule 8.5(b)2 and determined that the D.C. Rules applied to Mr. Bonner's conduct because the "predominant effect of the conduct" occurred in the District of Columbia. The hearing judge concluded that Mr. Bonner violated D.C. Rules 8.4(a), (b), and (c). The hearing judge also made findings related to the presence of aggravating factors and mitigating factors for this Court's consideration in devising the appropriate sanction.
This Court has original and complete jurisdiction in attorney discipline proceedings and conducts an independent review of the record. Attorney Grievance Comm'n v. Ambe, 425 Md. 98, 122–23, 38 A.3d 390 (2012) (internal citations omitted). We review the hearing judge's findings of fact under the clearly erroneous standard. Id . When no exceptions are filed to a hearing judge's findings of fact, we accept them as established. Md. Rule 19-740(b)(2)(A). Additionally, we "may confine [our] review to the findings of fact challenged by the exceptions." Md. Rule 19-740(b)(2)(B). In this case, neither party filed any exceptions to the hearing judge's findings of fact. Indeed, since the inception of Bar Counsel's investigation, Mr. Bonner has admitted to the misconduct that forms the basis of the charges. We summarize these undisputed facts below.
Mr. Bonner obtained a bachelor's degree from Marquette University in 1976 and his law degree from Georgetown University Law Center in 1979. Immediately thereafter, he clerked in the Superior Court of the District of Columbia. He was admitted to the District of Columbia Bar in 1980 and to the Maryland Bar in 1990.
Throughout his career, Mr. Bonner specialized in insurance defense, working at two law firms prior to forming Bonner Kiernan Trebach & Crociata LLP ("the Firm") with three of his colleagues in 2001. Because Mr. Bonner's surname generated name recognition (largely due to his father's prominence associated with representing two government actors in the Watergate hearings), the partners decided to list Mr. Bonner's name first in the Firm's name. The Firm started with 42 attorneys, and grew to approximately 86 attorneys, including 12 equity partners, with offices in nine states. The Firm's largest office and the administrative headquarters is in D.C. The Firm primarily represents corporations and insurance companies, focusing on defense litigation and risk management.
From the Firm's beginning and continuing to the present, Barry Trebach has functioned as the managing partner. Kevin McCarthy, CPA, is the Firm's Chief Financial and Administrative Officer. Mr. Trebach and Mr. McCarthy both testified in this matter on behalf of Bar Counsel.
Under the Firm's compensation system, the four founding partners were generally compensated equally within a compensation tier. However, after the implementation of a Compensation Committee in 2012, each equity partner had the opportunity to make a presentation on why an individual adjustment was appropriate. On an annual basis, each equity partner made a presentation to the Committee addressing the scope and status of his work, planned actions for client and business development, projections for the upcoming year, etc., and the Committee would decide whether to change that attorney's compensation.
Mr. Bonner was an important part of the Firm, and unquestionably a successful and respected attorney. He worked hard, generated substantial business, and had strong client relationships. Christopher Hassell, a former partner of Mr. Bonner's, testified that Mr. Bonner was an excellent trial lawyer who had the ability to spot strengths and weaknesses in cases.3 According to Mr. Hassell, Mr. Bonner was also a tremendous marketer, who kept his clients well informed.
Notwithstanding the apparent success of both Mr. Bonner and the Firm, the relationship between Mr. Bonner and some of his partners was less than harmonious. Mr. Bonner believed that certain equity partners were not making the same efforts to contribute to the success of the Firm. For example, Mr. Bonner testified that, from the inception of the Firm, he was frustrated by what he perceived to be unequal contributions by some equity partners and asserted that a couple of his partners repeatedly billed approximately one-half of the hours that were expected of them.
Mr. Bonner described feeling alienated and isolated at the Firm. He testified that he was routinely not invited to lunch or other events, or he was invited after the fact, "as a kind of joke." Mr. Bonner also recounted that, following a heart attack in June 2012, none of his partners came by to see how he was doing upon his return to the office. On another occasion, after he was injured on a client golf outing, no one came to check on him when he returned to the office. He testified that he felt like no one at the Firm cared about him. According to Dr. Sidney Binks, a clinical neuropsychologist who testified on Mr. Bonner's behalf, Mr. Bonner "felt edged out," "like there was a move afoot to take [him] out of leadership." In 2016, Mr. Bonner stepped down from the Firm's Executive Committee.
Mr. Bonner felt that he was not being appropriately compensated and deserved more money. In his mind, whether real or perceived, no one at the Firm was working the same number of hours or generating a comparable amount of business as him. Although he presented his case to the Compensation Committee for a number of years, he was kept in the same compensation tier as the other founding partners. Mr. Bonner testified that he was frustrated and angry over the manner in which some partners treated him, and in particular, what he perceived to be the inequity in the compensation structure. Rather than leaving the Firm, as he acknowledged he should have done, he determined that if he "wasn't going to get paid any more[, he] would treat himself to certain things." His misconduct followed.
Mr. Bonner's first acts of misconduct occurred in 2012, at a time when the Firm's equity partners had an unwritten policy that legitimate business expenses would be reimbursed by the Firm. The policy had been in effect since at least 2002. The Firm did not have a per diem for meals and travel; rather, it relied on the partners to be reasonable in their spending with the...
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