Unnamed Attorney v. Attorney Grievance

• Decision Date: 21 July 2009
• Docket Number: No. 57 September Term, 2008.,57 September Term, 2008.
• Citation: 409 Md. 509,976 A.2d 267
• Parties: UNNAMED ATTORNEY v. ATTORNEY GRIEVANCE COMMISSION.
• Court: Court of Special Appeals of Maryland

976 A.2d 267

409 Md. 509

UNNAMED ATTORNEY v. ATTORNEY GRIEVANCE COMMISSION.

No. 57 September Term, 2008.

Court of Appeals of Maryland.

July 21, 2009.

Reconsideration Denied August 21, 2009.

Edward Smith, Jr., Baltimore, MD, for appellant.

Melvin Hirshman, Bar Counsel (Fletcher P. Thompson, Asst. Bar Counsel, Attorney Grievance Com'n of Maryland, Crownsville, MD), on brief, for Appellee.

ARGUED BEFORE BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.

BARBERA, Judge.

Appellant, a practicing attorney and member of the Maryland Bar, is currently under investigation by appellee, the Attorney Grievance Commission ("Commission"), concerning the handling of Appellant's attorney trust account.¹ Pursuant to the investigation, Bar Counsel, acting on behalf of the Commission, filed a subpoena seeking documents from the attorney and the bank at which the account is maintained.

Appellant filed with the Circuit Court for Baltimore City a "Motion of Objection to Enforcement of Subpoena" and requested a hearing on the motion. The Commission filed a response in opposition to the motion, and likewise requested a hearing. The court, without holding a hearing, issued an order denying the motion.

Appellant appealed the order to the Court of Special Appeals.² We granted a writ of certiorari before a decision by that court to answer the following question: "Did the trial court abuse its discretion in denying the Motion of Objection to Enforcement of Subpoena?" For the reasons that follow, we hold that the court did not abuse its discretion, and we affirm the court's order denying the motion.³

I.

On July 31, 2007, Provident Bank reported to the Commission, pursuant to the bank's obligations under Maryland Rule 16-610,⁴ that an overdraft of $25.25 had occurred in an attorney trust account held by Appellant.⁵ On August 7, 2007, Bar Counsel sent a letter of inquiry to Appellant regarding the overdraft, pursuant to Maryland Rule 16-612.⁶

Appellant responded to the inquiry by letter dated August 28, 2007. Appellant gave an explanation for the overdraft, as required by Maryland Rule 16-612. In support of that explanation, Appellant provided account records that included bank statements and canceled checks for the period between May 1, 2007 and July 31, 2007, and ledger cards for those clients whose money Appellant said was in the trust account during the period of April 30, 2007 through July 31, 2007. Appellant explained the overdraft by referring Bar Counsel to a $1,000.00 withdrawal he had made for work performed for a client. Appellant maintained that he made the withdrawal based on the mistaken belief that the client's check covering these services already had been deposited into the account.

John DeBone is a paralegal on the staff of the Commission and has the primary responsibility of reviewing and analyzing trust account records. Upon analyzing the documents provided by Appellant in response to Bar Counsel's August 7, 2008 inquiry, Mr. Debone found a discrepancy between the May 31, 2007 trust account bank statement and the ledger cards. Whereas the trust account statement showed a balance of $149,380.47, the ledger cards showed that the balance in that account should have been $153,774.00, a difference of $4,393.53.⁷ The discrepancy suggested to Mr. DeBone that Appellant was not holding in trust the amount of money that the internal ledger cards indicated he should have been holding. Mr. Debone concluded that the explanation Appellant gave in his August 28, 2007 letter for the overdraft did not explain the more than $4,000.00 discrepancy.

Mr. DeBone's discovery prompted Bar Counsel to issue a subpoena on October 11, 2007, in connection with his investigation of the matter. The subpoena was directed to Appellant and Provident Bank and sought the "original documents," of all deposit slips, all deposited items, monthly statements, and all disbursed items and debit and credit memos for the escrow account "for the period of July 1, 2006 through the present."

On December 17, 2007, Appellant filed the "Motion of Objection to Enforcement of Subpoena," seeking to quash the subpoena. He raised a number of contentions in support of the motion: the subpoena violates his right to privacy; it bears no relationship to the legitimate duties imposed upon the Commission; the request is "over broad and calculated to go on a fishing expedition contrary to the authority" of Bar Counsel; the subpoena is "abusive and repressive"; and "use of this [subpoena] power by Bar Counsel under these facts is arbitrary and capricious and perhaps discriminatory." Appellant requested that "a full hearing be held on the record to litigate the issues raised herein."

The Commission filed a response in opposition to the motion. The Commission explained the discovery of the $4,393.53 discrepancy between Appellant's ledger cards and bank statement. The Commission argued that Bar Counsel "is obligated to conduct a thorough investigation of any error in movant's management of his trust account," and the subpoena was necessary to assist Bar Counsel in that investigation. The Commission requested a hearing so that it could "introduce testimony to support a good faith basis for the issuance [of the subpoena]."

By order docketed January 4, 2008, the court denied the motion, without a hearing. This appeal followed.

II.

Appellant presents two grounds in support of his contention that the Circuit Court abused its discretion in denying the motion to quash the subpoena. He argues, first, that the subpoena was "over broad" and "not relevant to [Bar Counsel's] inquiry," and, second, that the court should not have ruled on the motion without affording him a hearing or an explanation for the ruling. In support of the first ground of attack upon the court's order, Appellant argues that his August 28, 2007 letter to Bar Counsel satisfactorily explained the $25.25 overdraft, negating any need for further investigation. He further argues that the time period for which Bar Counsel has requested records, described in the October 11, 2007 subpoena as "from July 2006 to the present," is unrelated to the $25.25 overdraft that occurred in July 2007. In support of the second ground, Appellant relies on Maryland Rule 16-732(f), which is entitled "Confidentiality" and states in part: "A hearing before the court on any motion shall be on the record and shall be conducted out of the presence of all persons other than Bar Counsel, the attorney, and those persons whose presence the court deems necessary." Appellant argues that this provision "contemplates" a hearing, and the court abused its discretion in not granting a hearing in this case.⁸

The Commission counters that it properly approved Bar Counsel's issuance of the subpoena because it was reasonably related to the Commission's investigation of Appellant's trust account, and it was not overbroad in its scope. The Commission points out that, even assuming Appellant satisfactorily explained the overdraft that precipitated Bar Counsel's initial inquiry, he has not yet explained the $4,393.53 discrepancy between his ledgers and the bank statement that Mr. DeBone discovered during his analysis of the records Appellant submitted in response to Bar Counsel's original inquiry. The Commission refutes Appellant's contention that the court should have held a hearing before ruling on the motion, by resorting to the language of Maryland Rule 2-311(f). The Commission argues that the Rule does not require a hearing on the sort of motion that was filed in this case because the court's "denial of Appellant's Motion was not a final disposition of any defense which Appellant could not raise in further proceedings in the disciplinary process."

III.

Maryland Rule 16-732(a), entitled "Investigative Subpoena," in part empowers the Chair of the Commission to authorize Bar Counsel to issue a subpoena to compel the production of designated documents or other tangible things, if the Chair finds that "the subpoena is necessary to and in furtherance of an investigation being conducted by Bar Counsel pursuant to Rule 16-731[.]"⁹ Subsection (b) of Rule 16-732 provides that the contents of the subpoena "shall comply with the requirements of" Rule 2-510(c) (governing subpoenas) "except that to the extent practicable, a subpoena shall not identify the attorney under investigation." In addition, the Rule provides that the subject of the subpoena may file a motion for judicial relief under Rule 2-510.¹⁰

The subpoena in this case was prompted by Bar Counsel's investigation into Appellant's possible mishandling of the attorney trust account he is required to maintain pursuant to Md.Code (2004 Repl. Vol., 2008 Supp.), §§ 10-301-10-307 of the Business Occupations & Professions Article, Maryland Rules Title 16 Chapter 600, and Maryland Rules of Professional Conduct 1.15. As we have noted, the subpoena was directed to both Provident Bank and Appellant, and sought, with respect to the trust account, the following "original documents": "All deposit slips"; "All deposited items (front and back)"; "Monthly statements"; "All disbursed items (front and back)"; and "All debit and credit memos (including wire transfer memos)," covering the period of "July 1, 2006 through the present."

Appellant argues that the court abused its discretion in denying the motion to quash the subpoena because it is overbroad and irrelevant, given the narrow scope of the Commission's initial inquiry into the $25.25 overdraft. Appellant correctly recognizes that we ordinarily review a court's order denying a motion under an abuse of discretion standard. See WBAL-TV Division, the Hearst Corp. v. State, 300 Md. 233, 247, 477 A.2d 776, 783 (1984). We have held that a trial court abuses its discretion "`where no reasonable person would take the view adopted by the trial court.'" Metheny v. State, 359 Md. 576, 604, 755 A.2d 1088, 1104 (2000) (quoting In re Adoption/Guardianship ...