Attorney Grievance v. Mininsohn

• Decision Date: 17 March 2004
• Docket Number: No. 70,70
• Citation: 380 Md. 536,846 A.2d 353
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Gary S. MININSOHN.
• Court: Maryland Court of Appeals

846 A.2d 353

380 Md. 536

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Gary S. MININSOHN.

No. 70, Sept. Term, 2002.

Court of Appeals of Maryland.

March 17, 2004.

Reconsideration Denied May 6, 2004.

Melvin Hirshman, Bar Counsel, Raymond A. Hein, Asst. Bar Counsel for Atty. Grievance Com'n, for petitioner.

Deane A. Shure, Rockville, for respondent.

Argued before BELL, C.J., WILNER, CATHELL, HARRELL, BATTAGLIA, JOHN C. ELDRIDGE, (retired, specially assigned) and LAWRENCE F. RODOWSKY, (retired, specially assigned), JJ.

BATTAGLIA, J.

The Attorney Grievance Commission of Maryland ("Petitioner" or "Bar Counsel"), acting through Bar Counsel and pursuant to Maryland Rule 16-751(a),¹ filed a petition for disciplinary or remedial action against respondent, Gary S. Mininsohn, Esquire, on October 23, 2002. The Petition alleged that Mininsohn, who was admitted to the Bar of this Court on June 25, 1975, violated several Maryland Rules of Professional Conduct, specifically 1.3 (Diligence),² 1.4 (Communication),³ 1.15 (Safekeeping property),⁴ 1.5 (Fees),⁵ 3.4 (Fairness to opposing party and counsel),⁶ and 8.4 (Misconduct).⁷ Violations of Maryland Rule 16-609 (Prohibited transactions),⁸ Maryland Code, Section 10-306 of the Business Occupations and Professions Article (1989, 2000 Repl.Vol.)("A lawyer may not use trust money for any purpose other than the purpose for which the trust money is entrusted to the lawyer") and Maryland Code (1988, 1997 Repl Vol., 2003 Cum.Supp.), Sections 10-906 and 13-1007 of the Tax-General Article, requiring employers to withhold, report, and remit to the Comptroller employee income taxes, also are alleged.⁹ In accordance with Maryland Rules 16-752(a) and 16-757(c),¹⁰ we referred the petition to Judge John H. Tisdale of the Circuit Court for Frederick County for an evidentiary hearing and to make findings of fact and conclusions of law.

On March 8 and 9, 2003 and May 28, 2003, Judge Tisdale held hearings and on July 11, 2003, issued a Report and Recommendations in which he found, by clear and convincing evidence, that Mininsohn violated Rules 1.3, 1.5(c), 1.15(a) and (b), 3.4(c), 8.4(a) and (d), Maryland Rule 16-109, Business Occupations and Professions Article, Section 10-306, Tax-General Article, Section 10-906(a), (b), and (c), and Tax-General Article, Section 13-1007(b) and (c). Bar Counsel filed exceptions to the hearing judge's failure to find violations of Rules 8.4(b) and (c). Mininsohn filed several exceptions, stating that he did not violate Rule 3.4(c) when he failed to appear in court because of an ice storm and notified the court clerk to that effect, that he did not violate Rule 1.3 because he mistakenly believed that opposing counsel intended to prepare an Order at the direction of the court instead of him, that he did not violate Rule 1.15(b) because he had resolved all outstanding payments he had been required to make on a client's behalf, and that he did not willfully fail to withhold and pay income tax because the attorney he had hired handled his tax obligations incorrectly. We sustain Bar Counsel's exceptions and additionally find violations of Rules 8.4(b) and 8.4(c). We overrule Mininsohn's exceptions. The appropriate sanction is disbarment.

Judge Tisdale's Findings of Fact and Conclusions of Law follow:

Findings of Fact

"This action arises out of four separate complaints made to the Commission regarding the conduct of the Respondent. The underlying facts were not highly contested. Based on the testimony, documentary and other evidence, in accordance with the burdens of proof set forth in Rule 16-757(b), this court makes the following findings of fact:

"Gary S. Mininsohn was admitted to the Bar of the Court of Appeals of Maryland on June 25, 1975. Since approximately 1978, Respondent has continuously maintained a law office in Rockville, Maryland, primarily practicing as a sole practitioner.

B.C. Docket No. 2001-145-16-8

Reuschling Complaint

"In November 1998, Respondent engaged the services of Glen F. Reuschling (`Reuschling'), an accident reconstruction expert. Respondent hired Reuschling to assist and to testify in connection with Respondent's representation of a client, Norma Chicas (`Chicas'), in a vehicular negligence case in Montgomery County. After the trial at which he testified, Reuschling presented Respondent with a bill for his services for $2,557.80. Respondent's client made an initial payment to Reuschling.

"Reuschling testified that he made several demands for payment from Respondent, who informed him that he would have to file suit to collect because he did not intend to pay. Respondent testified that Reuschling's services were unsatisfactory and contributed to a ruling against his client. Respondent instructed Reuschling to proceed against his client to collect and assumed that Reuschling reached an agreement with the client.

"On April 6, 1999, Reuschling, represented by Mervyn A. Schwedt, Esquire (`Schwedt'), filed suit against Respondent in the District Court of Maryland for Montgomery County, seeking damages in the outstanding amount billed by Reuschling for his services in the Chicas case. After service of the civil complaint filed by Reuschling, Respondent did not file a Notice of Intention to Defend or otherwise respond to the complaint. Respondent also did not appear for trial on July 7, 1999.

"The District Court entered a default judgment against Respondent for $2,557.80, plus attorney's fees and costs. Respondent did not file any motion for post-judgment relief, nor did he note an appeal from the judgment entered.

"Schwedt testified that in August 1999, he sent Respondent Interrogatories in Aid of Enforcement of Judgment by first class mail and fax. Schwedt's testimony is confirmed by his filing of a Notice of Service of Discovery Materials on August 27, 1999. Respondent failed to respond to the interrogatories.

"On June 5, 2000, Schwedt initiated further Post-judgment proceedings by filing separate requests for a Writ of Garnishment of Property Other Than Wages and for a Writ of Garnishment on Wages, both directed to `Mininsohn & Associates,' the trade name used by Respondent in his law practice and to Respondent himself. On the same date, Schwedt again requested an Order Directing Defendant to Appear for Examination in Aid of Enforcement of Judgment (Oral).

"The District Court issued the two writs for service on Respondent's law practice and a subpoena requiring Respondent to appear in person on August 23, 2000 `to be examined under oath concerning any assets, property or credits' and ordering Respondent to bring with him records set forth in the request filed by plaintiff's counsel.

"On June 29, 2000, a private process server engaged by Schwedt personally served Respondent with the writs and the order directing Respondent to appear for oral examination. While Respondent stipulated that the service of the writs and the order was proper, he claims not to have distinct recollection of service. Respondent does acknowledge that he was in court on another matter around this time and may have been handed a piece of paper that constituted the writ and order. Respondent believes that he misplaced the writ and the order in a file.

"Respondent failed to answer either writ or to file a motion asserting a defense or an objection. Respondent failed to appear in court on August 23, 2000. Respondent did not ask for a continuance from the court nor did he inform the court that he would not be available on that date. On or after August 23, 2000, Respondent received a phone call from Schwedt asking him why he was not in court.

"Upon his failure to appear, the District Court issued a Show Cause Order for Contempt directing Respondent to appear personally in court on November 15, 2000. Respondent was personally served with the Show Cause Order on October 6, 2000. Respondent appeared in court on November 15, 2000, but did not bring with him any records responsive to the requests made in conjunction with the previously issued order that he appear for oral examination. The matter was continued until December 20, 2000. Respondent acknowledged the continuance by signing a document provided by the court.

"On December 20, 2000, Respondent again failed to appear in court, although Reuschling and Schwedt were present. Respondent alleges he was unable to appear in court due to inclement weather and that he did call the court to advise that he would not be present. As a result of his failure to appear a body attachment was requested. Although Respondent testified in this proceeding that he called and left a message with the clerk's office, there is no mention of a call to the court in the written motion to rescind body attachment that Respondent filed on January 5, 2001.

"On January 11, 2001, a directive was issued to set the case as a Show Cause for Contempt hearing before Judge Cornelius J. Vaughey, Administrative Judge for District 6 of the District Court of Maryland. On January 24, 2001, the District Court held a hearing on the pending contempt and body attachment. On that date, Respondent appeared in court, as did Reuschling and Schwedt, now making their fourth court appearance. Judge Vaughey ordered Respondent to produce the requested records on or before March 12, 2001, and identified the documents to be produced on a list numbered one through 22 in his own handwriting. Judge Vaughey also wrote `failure to produce said documents may cause the defendant [Mininsohn] to be held in contempt of this court.' Judge Vaughey re-set the case for a status hearing on March 21, 2001, `if the documents are not satisfactorily produced.' A copy of Judge Vaughey's handwritten list and comments was provided to Respondent on January 24, 2001.

"Respondent did not provide Schwedt with any documents from the list prepared by Judge Vaughey, nor did he communicate any explanation for his failure to respond. On March 21, 2001, at the status hearing before Judge Vaughey, Respond

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