Attorney Grievance v. Shryock

• Decision Date: 18 March 2009
• Docket Number: No. AG 16, September Term, 2007.,No. AG 68, September Term, 2007.,AG 16, September Term, 2007.,AG 68, September Term, 2007.
• Citation: 968 A.2d 593,408 Md. 105
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Charles M. SHRYOCK, III.
• Court: Court of Special Appeals of Maryland

968 A.2d 593

408 Md. 105

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Charles M. SHRYOCK, III.

No. AG 16, September Term, 2007.

No. AG 68, September Term, 2007.

Court of Appeals of Maryland.

March 18, 2009.

Reconsideration Denied May 1, 2009.

Raymond A. Hein, Asst. bar Counsel (Melvin Hirshman, Bar Counsel, Atty. Grievance Com'n of Maryland), for Petitioner.

Melvin G. Bergman, Greenbelt, for Respondent.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.

GREENE, J.

We have before us two petitions for disciplinary or remedial action filed by Bar Counsel, on behalf of the Attorney Grievance Commission, against respondent, Charles M. Shryock, III. Although the petitions were filed separately, involve different matters, and were referred to different judges for hearing, upon our receipt of the findings and conclusions of the hearing judges, we consolidated the petitions and decided to address the matters in this one Opinion. We note, at the outset, that Shryock has been indefinitely suspended from the practice of law in Maryland since October 2, 2005. Attorney Grievance Comm'n v. Shryock, 388 Md. 622, 881 A.2d 1147 (2005).

Petition No. 16, which involves Bar Counsel's complaint that Shryock continued to use his attorney trust account while suspended from the practice of law and knowingly failed to respond to Bar Counsel's lawful demand for information, was filed on July 13, 2007. In accordance with Maryland Rule 16-752(a),¹ we referred the petition to Judge Sean D. Wallace, of the Circuit Court for Prince George's County, who conducted a hearing on December 17, 2007, and presented to us his findings of fact and conclusions of law. Specifically, Bar Counsel alleged that Shryock violated the Maryland Rules of Professional Conduct (MRPC) 5.5(b)(2) (Unauthorized practice of law)²; 8.1(b) (failure to respond to Bar Counsel's lawful demands)³; and 8.4(a), (c), and (d) (Misconduct)⁴.

As to the facts, Judge Wallace found:

In accordance with Rule 16-757(b), all factual findings are based on the clear and convincing standard, except as specifically stated otherwise. Furthermore, the facts are essentially undisputed.

The Respondent was admitted to the Maryland Bar on November 9, 1979. By Order of the Court of Appeals, Respondent was indefinitely suspended from further practice of law in this State, effective on October 2, 2005. At the time of his suspension, Respondent had an attorney trust account in the name of "CHARLES M. SHRYOCK III, ESQ., MD/IOLTA ATTY TRUST ACCT." The deposit slips and checks associated with this account also bore the same designation.

Respondent was familiar with the requirements of Rule 16-760.[⁵] Pursuant to Rule 16-760(c), Respondent closed his law office, concluded all matters which he could, notified clients with any unfinished matters of his suspension, withdrew from all pending matters, and notified all telephone directories to delete any reference to him as an attorney. Rule 16-760(d)(3) prohibited Respondent from

using any stationery, bank account, checks, or labels on which the respondent's name appears as an attorney or in connection with any office for the practice of law.

However, Respondent kept open his attorney trust account. He had been advised by his counsel that he could keep it open to deal with the resolution of past matters and collection of fees earned prior to his suspension.

Following his suspension Respondent acted as a real estate broker using a license he had obtained years before. Respondent deposited, into his attorney trust account, monies related to his real estate business and other personal matters, and made disbursements from the account using checks with the designation "CHARLES M. SHRYOCK III, ESQ., MD/IOLTA ATTY TRUST ACCT."

On October 12, 2006, Bank of America sent an overdraft report to the Attorney Grievance Commission related to Respondent's attorney trust account. That report was followed soon thereafter by two additional overdraft reports related to that account. As a result, Deputy Bar Counsel Glenn Grossman wrote to Mr. Shryock on October 17, 2006 asking for an explanation of the overdraft and seeking copies of "your client ledger cards, deposit slips, cancelled checks (front and back, if available), and monthly bank statements for the period July 2006 to present." Respondent immediately contacted Melvin G. Bergman, Esq., to represent him in connection with this matter. However, neither Respondent nor Bergman timely filed a written response.

On November 24, 2006, Sterling Fletcher, an investigator for Petitioner, telephoned Respondent to inquire about the matter. Respondent told Fletcher that "it was a mistake on his part ... he didn't get to deposit the money into the account in time ... that he was using the account for his real estate business and that he has since closed out the account." Respondent further stated that he would follow up with Bergman to find out what happened to the response.

Bergman had several telephone contacts with Bar Counsel regarding this matter after the initial Grossman letter of October 2006. This resulted in an extension of the time in which to file a written response until January 12, 2007. However, neither Respondent nor his counsel filed such a written response until April 2, 2007, nine days before the peer review panel hearing. Further, Respondent never provided the requested documentation to Bar Counsel either directly or through his counsel. Another request was made on May 18, 2007 for such materials. Respondent did not provide them, and thus Bar Counsel issued a Bank Records Subpoena to Bank of America to obtain the requested items.

The Respondent repeatedly expressed remorse for his actions in this case.

Based upon the findings of fact, Judge Wallace determined that Shryock violated MRPC 5.5(b)(2) by "maintaining and using his attorney trust account, and the deposit slips and checks related thereto, which bore the designation `CHARLES M. SHRYOCK, III, ESQ., MD/IOLTA ATTY TRUST ACCT.'" Judge Wallace further determined that Shryock violated MRPC 8.1(b) "in failing to file a written response to Bar Counsel[']s inquiry for more than six months and also by failing to provide the documentation requested by Bar Counsel in October 2006 and May 2007." Further, Judge Wallace determined that Shryock violated MRPC 8.4(a), reasoning that the result was "axiomatic[, the court] ... having found a violation of Rule 5.5 and 8.1."

The hearing judge determined that Shryock did not violate MRPC 8.4(c) and (d). Judge Wallace reasoned that "[a]s to subsection (c), the Court does not find that Respondent had any dishonest intent in continuing to use his attorney trust account after he was suspended." According to the hearing judge, "Respondent was using the account (albeit improperly) to avoid the inconvenience and expense of opening a new account without the attorney designations." As to MRPC 8.4(d), the hearing judge determined that there was no violation because "Bar Counsel was unable to specify how Respondent's conduct was prejudicial to the administration of justice."

Neither Bar Counsel nor Shryock filed exceptions to the findings of the hearing court. Pursuant to Rule 16-759(b)(2)⁶ we treat the findings of fact as established for the purpose of determining the appropriate sanction. Attorney Grievance Comm'n v. Stolarz, 379 Md. 387, 397 n. 5, 842 A.2d 42, 47 n. 5 (2004).

Petition No. 68 involves Bar Counsel's complaint that Shryock continued to practice law, while suspended, with regard to certain real estate matters and through the course of his activities violated MRPC 1.8 (Conflict of Interest)⁷; 4.3 (Dealing with Unrepresented Person)⁸; 5.5(a) (Unauthorized Practice of Law)⁹; and 8.4(a), (b), (c), and (d) (Misconduct).¹⁰ In accordance with Maryland Rule 16-752, we referred the petition to Judge Beverly J. Woodard, of the Circuit Court for Prince George's County, who conducted a hearing on June 16, 2008, and presented to us her findings of fact and conclusions of law.¹¹ As to the facts Judge Woodard concluded:

Mark H. Wittstadt, Esquire (Wittstadt) wrote to Bar Counsel on February 15, 2007 to report his concerns regarding Respondent's activities regarding real estate property located at 1002 Shelby Drive, Oxon Hill, Maryland 20745 (hereafter the "Shelby Drive property").

After an investigation Bar Counsel originally determined Respondent had engaged in professional misconduct as defined in Maryland Rule 16-701(i) and violated the following Maryland Rules of Professional Conduct, as adopted by Maryland Rule 16-812[:]

Rule 1.8 Conflict of Interest: Current Clients: Specific Rules

Rule 4.3 Dealing with Unrepresented Person

Rule 5.5 Unauthorized Practice of Law:

Multijurisdictional Practice of Law

Rule 8.4 Misconduct

At the June 16th hearing, Bar Counsel withdrew its allegation regarding violations of Rule 1.8 and Rule 4.3.

Since his suspension Respondent has been actively operating a real estate business known as "Shyrock Realty." One of the agents who has a brokerage license with the company is Andrew Jackson (Jackson). Respondent and Jackson have no written agreement defining their relationship in Shyrock Realty. At a foreclosure sale on January 4, 2007 Jackson, acting as an individual, was the successful bidder on the Shelby Drive property. Mark H. Wittstadt, Esquire (Wittstadt) acted as the Substitute Trustee in charge of selling this property.

According to Jackson, after [the] purchase he discovered there was a pending contract for sale on the property with the deceased owner's son. He decided it would be best to move the property quickly and allow the contract for sale to go to settlement. He felt, as well as did the Respondent, the property was not worth the approximate $232,000 he was obligated to pay under the foreclosure sale. The price in the pending contract was $170,000.

Two documents, an Assignment of Interest in Real Property (Assignment) and...