Attorney Grievance v. Thompson, No. 9

• Court: Court of Appeals of Maryland
• Writing for the Court: RAKER.
• Citation: 830 A.2d 474,376 Md. 500
• Parties: ATTORNEY GRIEVANCE COMMISSION of Maryland v. Robert P. THOMPSON.
• Decision Date: 13 August 2003
• Docket Number: No. 9

830 A.2d 474
376 Md. 500

ATTORNEY GRIEVANCE COMMISSION of Maryland
v.
Robert P. THOMPSON

No. 9, September Term, 2002.

Court of Appeals of Maryland.

August 13, 2003.

830 A.2d 475

Melvin Hirshman, Bar and Counsel and Dolores O. Ridgell, Assistant Bar Counsel for the Attorney Grievance Commission of Maryland, for petitioner

Eric Gordon, Esquire, Baltimore, for respondent.

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

RAKER, Judge.

The Attorney Grievance Commission, acting through Bar Counsel, filed in this Court a Petition for Disciplinary Action, pursuant to Maryland Rule 16-709, alleging that Robert P. Thompson violated Maryland Rules of Professional Conduct 1.8

830 A.2d 476

(Conflict of Interest)¹, 1.1 (Competence)², 1.15 (Safekeeping property)³, and 8.4(d) (Misconduct)⁴. Pursuant to Maryland Rule 16-752(a), we referred the matter to Judge M. Brooke Murdock of the Circuit Court for Baltimore City to make findings of fact and conclusions of law. Following an evidentiary hearing, Judge Murdock found by clear and convincing evidence that respondent had violated Rules 1.15 and 8.4(d).⁵ Judge Murdock made the following Findings of Fact and Conclusions of Law. (footnotes omitted)

"FINDINGS OF FACT AND CONCLUSIONS OF LAW INTRODUCTION

"The Attorney Grievance Commission of Maryland (`Petitioner'), filed a Petition for Disciplinary Action pursuant to Md. Rule 16-709, alleging that Robert P. Thompson violated 1.8, 1.15, and 8.4(d) of the Maryland Rules of Professional Conduct (`MRPC'). Pursuant to an Order from the Court of Appeals dated March 22, 2002, the Petition for disciplinary action was transmitted to this Court for a hearing, which was conducted on October 10, 2002. The Petitioner was represented by Dolores O. Ridgell, Robert Thompson represented himself.

"The parties stipulated to the admission of the bank records for the Estate of Ida Maye Redd (`the Estate'), a spreadsheet summarizing the activity in the bank accounts, a certified copy of the Orphans' Court file for the Estate, copies of various filings and the Orders in the Estate. Petitioner offered testimony of an expert, Allan Gibber, Esq., the transcript of the deposition of Gail Davis and other documentary evidence. Mr. Thompson testified in his own defense.

STANDARD OF PROOF

"Maryland Rule 16-710(d) provides that `the hearing of charges is governed

830 A.2d 477

by the same rules of law, evidence and procedure as are applicable to the trial of civil proceedings in equity. Factual findings shall be supported by clear and convincing evidence.'

"However, in establishing a defense, a Respondent need only prove factual matters, including the existence of mitigating circumstances, by a preponderance of the evidence. Attorney Grievance Comm'n v. Bakas, 322 Md. 603, 589 A.2d 52, modified, 323 Md. 395, 593 A.2d 1087 (1991); Attorney Grievance Comm'n v. Powell, 328 Md. 276, 614 A.2d 102 (1992).

FINDINGS OF FACT

"The Court finds that the following facts have been established by clear and convincing evidence.

"On November 16, 1978, Mr. Robert Thompson (`Respondent') was admitted to the Bar of the Court of Appeals of Maryland. From 1989 to 1993, he operated as a sole practitioner in Baltimore City. In August, 1993, Respondent began doing business as Thompson & Sugar, P.A.

TAXES

"During the tax years 1989 through 1993, Respondent employed one or more employees and withheld Federal and Maryland State taxes from the salaries of those employees. However, for the tax years 1989 through 1993, Respondent failed to maintain a separate account for the funds, hold the funds owed to the Federal and State governments in trust, or pay the State and Federal withholding taxes to the government, as due. Further, during the tax years 1989 through 1993, Respondent failed to file quarterly withholding tax reports as required in a timely manner for each quarter. The amount of the employee withholding taxes owed to the State of Maryland by Respondent for 1989-1993 was in excess of $11,000.

"Maryland Comptroller of the Treasury (`Comptroller') repeatedly notified Respondent of this obligation and requested that he remit the income taxes withheld from his employees. The Comptroller instituted a lien against Respondent and made other collection efforts. On October 27, 1998, the Comptroller informed the Petitioner of Respondent's conduct. Prior to the institution of the disciplinary action, Respondent satisfied his Federal withholding tax liability. On July 26, 2002, he satisfied the State withholding tax obligation. Respondent's present law firm has handled payroll taxes properly.

ESTATE OF IDA MAYE REDD

"Respondent drafted Ida May Redd's will dated May 31, 1995 and a codicil to the will dated January 5, 1996. The codicil to Ms. Redd's will named Robert Thompson, Respondent, and Geneva Davis, Ms. Redd's sister, as personal representatives. On January 21, 1996, Ms. Redd, a resident of Baltimore City, died. Having no children, Ms. Redd left bequests to her sister, nieces, nephews, stepsons and friends. Ms. Redd's estate was valued at approximately $488,000, of which approximately $470,000 was held in bank and investment accounts. On February 7, 1996, Respondent filed a Petition for Probate of the Redd Estate. Respondent and Ms. Davis were appointed co-personal representatives of the Redd Estate. Ms. Davis was 70 or 71 at the time she was named co-personal representative. She had a degree in education and was a retired school teacher. She had no legal training. After her sister's death, Ms. Davis sent all

830 A.2d 478

of Ms. Redd's personal property to Georgia to be placed in storage

"On February 8, 1996, Respondent and Ms. Davis traveled to various financial institutions to collect the estate assets. They opened an Estate account at First Fidelity/First Union Bank on February 8, from which both Respondent or Ms. Davis could make withdrawals. Respondent and Ms. Davis withdrew funds from Ms. Redd's accounts at First Fidelity Bank and Signet Bank. Also, on February 8, 1996, a Provident Bank account, which was titled jointly in the names of the decedent and Ms. Davis, was closed. The balance in the Provident Bank account was $27,387.28. The Provident Bank records indicate Ms. Davis signed the debit slip and withdrew the entire balance. This account was not listed on the Information Report filed in the Orphans' Court by Respondent and Ms. Davis on February 28, 1996.

"In February, 1996, Ms. Davis became ill and was diagnosed with pancreatic cancer. She was hospitalized until April, 1996, when she went to her daughter's home. Ms. Davis was extremely weak and fed through a feeding tube. Ms. Gail Davis, her daughter, assisted her in making entries in the Estate check register. Ms. Gail Davis played no role in administrating the estate.

"On May 8, 1996, Respondent filed an inventory for the Estate. On May 31, 1996, at Respondent's request, a check in the amount of $1,000 was sent to Respondent from the Estate account, to compensate him for travel expenses for a trip to Georgia. On June 1, 1996, Respondent traveled to Albany, Georgia, where he met with some of the heirs, including Geneva Davis, Gail Davis, Alma Noble, Melvin George, Kay McGee and Regina Johnson. Respondent gave out a copy of the Administration Account and had Ms. Davis begin to prepare the distribution checks. During the meeting, one of the heirs questioned Respondent about why she had not received a bracelet, one of the specific bequests in Ms. Redd's will; and Respondent offered her $500 out of his commission in lieu of the bracelet. While preparing the distribution checks at the meeting, Ms. Davis became ill and returned home with her daughter and Respondent, where she finished writing the checks. On June 3, 1996, Ms. Davis lapsed into a coma and died the following week.

"As a result, before taxes totaling $36,834.96 had been paid, Respondent distributed the assets of the Estate. After the distributions and expenses were paid, the assets in the Estate totaled $35,537.65. In order to recover enough of the Estate to pay the taxes, Respondent subsequently obtained judgments against the heirs, including Ms. Davis and her daughter, Gail Davis. As a result of the judgments, some of the heirs returned a portion of their shares; and some did not. The taxes could only be paid after Respondent returned $800 of the travel expenses he received for going to Georgia and collected some of the judgment against the heirs. As a result, some of her heirs received more than their share and some of her heirs received less than their share.

"After Respondent had returned to Maryland on June 2, 1996, he notified Ms. Davis' daughter that he had overlooked one of the heirs. Respondent requested that Ms. Davis' daughter prepare a check and send it to him in Maryland for his signature. This was done. Respondent held the Estate assets from 1996 until the taxes were paid in an account that did not pay interest.

830 A.2d 479

"At the June 1, 1996 meeting, Respondent received a check from the Estate in the amount of $16,000 in payment of a Personal Representative's commission fee, for which no authorization from the Orphans' Court, as of that date, had been requested. On June 17, 1997, Respondent filed a Petition for Allowance of Personal Representative's Commission, requesting approval of commissions in the amount of $18,669.74. Pursuant to the agreement of the co-personal representatives, Ms. Davis had received $2,000 and Respondent had received $16,669.74. On September 21, 1998, the Orphans' Court denied the Petition, with leave to refile when administration of the Estate was completed. Respondent did not return the $16,000 commission he received on June 1, 1996 to the Estate. Subsequently, five years later, on October 3, 2002, the Orphans' Court approved payment of the commission.

"Ms. Davis' daughter called Respondent several times in December, 1996. Respondent did not return her calls. On

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