Attorney Grievance Commission v. DiCicco

• Decision Date: 18 July 2002
• Docket Number: Misc. AG No. 40
• Citation: 369 Md. 662,802 A.2d 1014
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND, v. Robert A. DiCICCO.
• Court: Maryland Court of Appeals

802 A.2d 1014

369 Md. 662

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND, v. Robert A. DiCICCO.

Misc. AG No. 40, Sept. Term, 2000.

Court of Appeals of Maryland.

July 18, 2002.

Melvin Hirshman, Bar Counsel for the Attorney Grievance Commission of Maryland.

David B. Irwin, Towson, for Respondent.

Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

HARRELL, J.

Pursuant to Maryland Rule 16-709(a),¹ Bar Counsel, on behalf of the Attorney Grievance Commission ("Petitioner"), and at the direction of the Review Board, filed a petition with this Court initiating disciplinary proceedings against Robert A. DiCicco, Esquire ("Respondent"), a member of the Maryland Bar since November 1964. In the petition, Bar Counsel alleged violations of Maryland Rules of Professional Conduct ("MRPC") 1.15 (safekeeping property) and 8.4 (misconduct); Maryland Rules 16-607 (commingling of funds) and 16-609 (prohibited transactions); and Maryland Code (1989, 2000 Repl.Vol., 2001 Supp.), Business Occupations and Professions Article, § 10-306 (misuse of trust money).²

Petitioner's initial investigation of Respondent stemmed from two unrelated complaints initiated by Chiroplus of Fullerton, a medical provider, and P. Dianne Hite, a former client of Respondent. After an analysis of Respondent's trust account records for the period of 1997-1999, however, Petitioner alleged additional violations, unrelated to the complaints, based on Respondent's general trust account activity. In accordance with Md. Rule 16-706(d),³ an inquiry panel hearing was scheduled. Respondent, following the advice of his counsel, waived his right to a panel review after Respondent's counsel was unable to obtain a postponement in order to review documents and prepare a defense.

We referred the matter to Judge Robert E. Cahill of the Circuit Court for Baltimore County to conduct an evidentiary hearing and make findings of fact and conclusions of law in accordance with Md. Rules 16-709(b)⁴ and 16-711(a).⁵ Following a two-day evidentiary hearing, at which Respondent was present and represented by counsel, the hearing judge concluded, by clear and convincing evidence, that Respondent violated MRPC 1.15(a) & (c), MRPC 8.4(a), and Md. Rules 16-607(a) and 16-609. The hearing judge further concluded that Respondent did not violate MRPC 1.15(b), MRPC 8.4(c), or § 10-306. Petitioner, pursuant to Md. Rule 16-711(b)(2),⁶ filed with this Court exceptions to the hearing judge's findings of fact and conclusion of law that Respondent did not violate MRPC 8.4(c), and recommended Respondent's disbarment as the appropriate sanction. Respondent filed a reply to Petitioner's exceptions and recommendation for sanction, urging a short period of suspension as the appropriate sanction, but took no written exceptions of his own.

I.

A. Background

After filing a petition for disciplinary action with this Court, Petitioner also referred the matter of Respondent's alleged misconduct to the State's Attorney for Baltimore County for criminal investigation. On 22 January 2001, Respondent, pursuant to Md. Rule 2-403,⁷ requested a protective order to stay temporarily the disciplinary proceedings until the conclusion of the criminal investigation. This motion was denied. On 28 March 2001, Petitioner deposed Respondent as part of its investigation. Respondent's counsel advised Respondent, in light of the pending criminal investigation, to decline to answer substantive questions, pursuant to the Fifth Amendment to the United States Constitution.⁸ Respondent followed the advice of his counsel at the deposition. At the start of the evidentiary hearing before the hearing judge on the petition for disciplinary action, counsel for Respondent again raised the Fifth Amendment issue. The parties came to an agreement, which the hearing judge summarized as follows:

[Petitioner] had intended to call the Respondent as part of his case. He was informed by [Respondent's counsel], however, that he expected his client to follow his recommendation to exercise his right under the Fifth Amendment to decline to answer substantive questions. The Respondent proposed that he be permitted to do that in a pre-hearing deposition and, in return, waive his right to testify in his own defense. The Commission then would offer the deposition as evidence, without objection, thereby avoiding the Respondent having to testify in open court and risk further health problems.⁹

Petitioner presented the testimony of William M. Ramsey, its investigator assigned to this matter. Petitioner also offered the testimony of John DeBone, a paralegal in Bar Counsel's office who, after subpoenaing and reviewing Respondent's bank records, conducted a computerized analysis of those records for the period 1 January 1997 through 23 February 2000. Consistent with the aforementioned "agreement," Petitioner also introduced, as its Exhibit No. 2, a transcript of Respondent's pre-hearing deposition. Respondent's sole witness was Henry A. Grandizio, C.P.A., who reviewed and commented on Mr. DeBone's analysis of the trust account records.¹⁰

B.

Evidence Produced at the Hearing

i. The Chiroplus Complaint

The Chiroplus complaint arose from Respondent's representation of Brian Gerhold in a negligence suit stemming from a traffic accident. Gerhold received medical treatment from Chiroplus for injuries sustained in the accident. Gerhold subsequently discontinued his treatment with Chiroplus due to a dispute over insurance coverage. In 1997, Gerhold's negligence claim settled for $7,000. The settlement proceeds were deposited into Respondent's escrow account. In accordance with Gerhold's instructions, Respondent paid the client's outstanding medical bills from the escrow account, with the exception of the Chiroplus bill for $4,326, which was disputed by the client. The dispute between Chiroplus and Gerhold eventually settled in 1999 for $3,500, at which time Respondent paid Chiroplus that amount from his escrow account. Chiroplus complained to Petitioner about the Respondent's alleged failure to make prompt payment to it following settlement of Gerhold's negligence claim.

The hearing judge summarized Mr. DeBone's analysis of Respondent's trust account regarding the Chiroplus complaint as follows:

[O]n April 2, 1997[,] a $7,000 settlement draft from State Farm Insurance Company was deposited in the escrow account on behalf of Brian Gerhold. Two years later, on May 4, 1999, check number 2794 for $3,500 was sent to Chiroplus.

On numerous occasions during that two-year period, the trust account balance fell below not only the $4,326 claimed by Chiroplus but also the $3,500 ultimately disbursed to Chiroplus. Petitioner's Exhibit 6 is a copy of the bank statement for June, 1997. It reflects a balance on June 30, 1997 of $239.01. Mr. DeBone testified that on every day between August 6 and August 25, 1997 the balance was below the $3,500 paid to Chiroplus as well as the $4,326 it had been claiming for the services to Mr. Gerhold.

Based on Investigator Ramsey's testimony regarding his interview with Mr. Gerhold, the hearing judge noted that Mr. Gerhold expressed "satisf[action] with the representation of the Respondent even though he didn't receive any proceeds from the settlement after the medical bills were paid and the Respondent settled the Chiroplus claim for $3,500."

ii. The Hite Complaint

Ms. Hite engaged Respondent to represent her in a personal injury claim arising from a traffic accident in 1997. Ms. Hite filed a complaint with Petitioner in November 1999 alleging difficulty in obtaining the proceeds of the October 1999 settlement of her claim. The hearing judge summarized Investigator Ramsey's testimony regarding the Hite complaint as follows:

[Ms. Hite] filed her complaint on November, 10, 1999, apparently alleging that after her personal injury claim was settled by the Respondent he had not responded to her numerous calls requesting disbursement of the net proceeds. The Respondent told Mr. Ramsey that he had disbursed the proceeds to Ms. Hite in November, 1999. On cross-examination, Mr. Ramsey acknowledged that it was "his understanding" that Ms. Hite was paid "within weeks of making the complaint".

Respondent's Exhibit 9 is a copy of his December 1, 1999 letter to [Petitioner] detailing the facts concerning his representation of Ms. Hite and enclosing copies of her Settlement Disbursement Record and his letter transmitting it to her on November 5, 1999-two weeks after she had endorsed the settlement draft. She approved the Disbursement Record by signing and returning it to the Respondent on November 13, 1999. She received the net proceeds on November 15, 1999-five days after she filed her alleged complaint.

iii. Miscellaneous Trust Account Discrepancies

Recounting Mr. DeBone's testimony regarding further discrepancies revealed during his review of Respondent's trust account records, Judge Cahill noted the following:

[F]or client William Schlmalzer there was a deposit on January 9, 1997 of $7,500. The client was paid the sum of $4,599 on March 17, 1997. Between January 9th and March 17th the balance in Respondent's trust account fell below [$4,599] on nine occasions.

[O]n June 9, 1998 (sic.1997) an insurance check for $9,500 was deposited on behalf of Delores Melchoir and on July 25, 1997 she negotiated a check for her share of $6,103.67. On ten days between those two dates the balance in the account was below $6,103.67.

[S]imilar deficiencies [were found] in Respondent's trust account with respect to client Rae Spaugh, Dianne Kinzer, Catherine Hall, Brenda Rimgus, Samantha Fuller, John and Dorris Requardt, Dawn Smith, Ruth Beitler and several others. [Mr. DeBone] also noted that the lowest positive balance in the account was $3.55 on July 24, 1998, followed by negative balances of $3,098.64 on September 15, 1998, $782.64 on September 21, 1998 and $482.64 on October 6, 1998.

With respect to client Patrick

...