Attorney Grievance Commission of Maryland v. Goldberg, 11

• Decision Date: 23 February 1982
• Docket Number: No. 11,11
• Citation: 441 A.2d 338,292 Md. 650
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Ronald S. GOLDBERG. Misc. (Subtitle BV)
• Court: Maryland Court of Appeals

Page 650

292 Md. 650

441 A.2d 338

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Ronald S. GOLDBERG.

Misc. (Subtitle BV) No. 11.

Court of Appeals of Maryland.

Feb. 23, 1982.

Melvin Hirshman, Bar Counsel, Annapolis (Glenn M. Grossman, Asst. Bar Counsel, Baltimore, on the petition), for petitioner.

Melvin G. Bergman, Lanham (Neil Edward Axel, Rockville, on the answer), for respondent.

Argued before SMITH, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ., and J. DUDLEY DIGGES, Retired, Specially Assigned Judge.

SMITH, Judge.

Bar Counsel, acting pursuant to the provisions of Maryland Rule BV9, filed a petition with us on behalf of the Attorney Grievance Commission seeking disciplinary action against Ronald S. Goldberg, a member of the Maryland bar. The petition alleged sixteen instances of professional misconduct which essentially involved neglect. Pursuant to Rule BV9 b, we referred the matter for hearing to a judge of the Circuit Court for Montgomery County. He made the following findings of fact after hearings that consumed three days:

"There is little, if any, dispute by the Respondent, Ronald S. Goldberg, that in each of the sixteen incidences he was retained as an attorney to perform legal services on behalf of a client. This Court will not go through each complaint separately because the real issue is not what occurred but what caused the failure of representation with respect to each of the complaints.

"The Respondent, Ronald S. Goldberg, has been in the practice of law since his admission to the Bar of this Court on October 20, 1961. At the time that he entered into an attorney-client relationship with the subjects of these complaints, Mr. Goldberg was operating a legal clinic. Sometime in 1978, upon the recommendation of one of his clients, he hired Sandra H. Ofterdinger ... as a secretary. Subsequent to her hiring, Mrs. Ofterdinger was given increasing responsibilities, resulting in her position in the nature of an office manager. She had the responsibility to see that the pleadings were prepared from Mr. Goldberg's dictation, the cases properly filed, dates appropriately calendared, the keeping of the financial books and records, and authority to sign checks for disbursements from the office account and clients' trust account.

"There came a time while in the employment of Mr. Goldberg that Mrs. Ofterdinger failed to prepare the necessary pleadings, documents or papers required to be done. As she got increasingly behind, she would remove the files and not calendar them, preventing the lack of progress on those files from coming to the attention of Mr. Goldberg. In order to cover her inactivity on these files, Mrs. Ofterdinger then started going through all of the office mail, removing any letters that had reference to the work that had not been done. She also removed any phone messages and intercepted calls to Mr. Goldberg. She made excuses or misrepresentations as to why the work had not been done in some instances and falsely represented that the work had been done in others. Checks received from clients were not deposited in the appropriate account, and from the exhibits it would appear that unauthorized checks were drawn by Mrs. Ofterdinger for improper purposes. She further intercepted the letters from the Attorney Grievance Commission.

"From the testimony presented, there is no evidence that Respondent, Ronald S. Goldberg, was aware of any of the activity of Mrs. Ofterdinger until the time of her termination. None of the misrepresentations to clients were authorized by Mr. Goldberg. As soon as he became actually aware of what had occurred, Mr. Goldberg attempted to locate all of the removed or hidden files, contact the clients, and rectify the situation where possible. One might question whether an attorney can give effective representation to all of his clients with the volume that Mr. Goldberg has undertaken. There is, however, no indication that volume or improper delegation was a contributing factor in any of the incidents the subject of this complaint.

"For the aforegoing reasons, this Court finds that there was no knowing violation of the Code of Professional Responsibility by Respondent, Ronald S. Goldberg."

Testimony adduced before Judge Cave included the fact that there were instances in which deeds were not recorded and pleadings were not timely filed; that disbursement was not promptly made on sums collected for the account of clients; that the gross income of Goldberg was in excess of $12,000 per month from legal fees; that his escrow account showed negative balances from time to time; that Goldberg never examined monthly bank statements; that at the time Mrs. Ofterdinger came to work for Goldberg she was on probation in the District of Columbia as a result of embezzling funds from a title company there; that in an earlier incident she had misappropriated funds from yet another title company, which did not bring criminal charges because of its desire to avoid publicity; that when Goldberg ultimately terminated the services of Mrs. Ofterdinger as a result of his investigations following a fellow employee's complaints to him, undeposited checks totaling more than $11,000 were located; and that among the items found in that investigation were unopened communications from the Attorney Grievance Commission of Maryland.

Given this testimony, we make one further observation before proceeding with our review of the Commission's petition which is now before us. When we note the prior background of Mrs. Ofterdinger, we do not mean to imply that she should not necessarily have been hired by Goldberg. We do suggest, however, that had Goldberg been aware of her background he might have supervised her duties in a different manner.

Bar Counsel filed exceptions to the findings of fact and conclusions of law of the trial judge. He contended relative to certain of the complaints that there was clear and convincing evidence to support a conclusion that Goldberg had violated Disciplinary Rules 6-101(A)(3), 7-101(A)(1), (2), and (3), and 9-102(B)(3), and (4). ¹

During most of the time in question, Goldberg appears to have had not more than two clerical employees. During a part of the time he had another attorney in the office. Of course, it may be that the clerical staff had too much volume to handle. Goldberg testified that the messages he received "would average a hundred calls a day." The manager of the bank whose office was on the first floor of the building in which Goldberg's office was located testified relative to the telephones when she visited Goldberg's office, saying "A. Well, I noticed on many occasions that they have the phones like we do where there are four lines coming through. You would see them all lit up on hold. I just noticed it because you notice it from being at work and it was extremely busy but normally nobody was on the phones."

Goldberg said on this subject:

"A. Kansada (, an employee,) brought to my attention and I noticed this myself that the lines were busy all the time. Sometimes I would call from court or out of the office. I could never get through. At first I didn't give it a second thought. I figured, well, we are just busy. We had five or six lines at that time and they were tied up.

"Then when I came in one day unexpectedly and I found the shades were drawn in the office and the TV set was on Ms. Heckner's desk and the phones were all lit up and no one was on the phones. I asked, 'What the hell was going on?' It was a work day. She said, 'Well, I was trying to get caught up. I was too busy. I put all the phones on hold so no one could call in.' I said, 'Let me tell you something. Don't ever do that again.' "

Mrs. Ofterdinger (formerly Heckner) testified:

"A. I would not say it was all my fault. I would say some of it probably was, yes, sir. I was one person. I had an awful lot put on me and it just got to the point where it overwhelmed me. I guess I made a bad judgment. I am very sorry about that."

At the very least there was clear and convincing evidence to support a conclusion that Goldberg violated DR 6-101(A)(3) relative to neglect of a legal matter entrusted to him. The trial judge was clearly in error in not finding a violation of that disciplinary rule. An attorney may not escape responsibility to his clients by blithely saying that any shortcomings are solely the fault of his employee. He has a duty to supervise the conduct of his office. A very telling aspect here is that although at one time the escrow account showed an overdraft of nearly $40,000 (possibly brought about by Mrs. Ofterdinger's apparent tardiness in depositing a check), Goldberg was unaware of this because he never at any time took the simple precaution of running his eye over bank statements at the end of the month.

Testimony was adduced from the branch manager of the bank where Goldberg's...