IN THE MATTER OF THE PETITION FOR REINSTATEMENT TO THE BAR OF MARYLAND OF
WENDELL H. GRIER
Misc. Docket (Subtitle BV) No. 51, September Term, 1993
COURT OF APPEALS OF MARYLAND
356 Md. 142;
737 A.2d 1076;
1999 Md. LEXIS 578
September 22, 1999, Filed
SUBSEQUENT HISTORY:
[***1]
As Corrected September 23, 1999.
COUNSEL: Submitted by Edward Smith Jr., of Baltimore, Md., FOR Petitioner.
Submitted by Melvin Hirshman, Bar Counsel for the Attorney Grievance Commission
of Maryland, FOR Respondent.
JUDGES: Submitted to Bell, C.J., Eldridge, Rodowsky, * Chasanow, Raker, Wilner, and
Cathell, JJ. Opinion by Rodowsky, J. Dissenting by Raker, J., in which Wilner
and Cathell, JJ., join.
* Chasanow, J., now retired, participated in the conference consideration of
this petition while an active member of this Court; after being recalled
pursuant to the Constitution, Article IV, Section 3A, he also participated in
the decision and adoption of this opinion.
OPINIONBY: RODOWSKY
OPINION:
[**1076]
[*143]
Opinion by Rodowsky, J.
This petition for
reinstatement to the bar of this Court, which we shall grant, has generated differences of
opinion on its way to, and in, this Court.
The petitioner, Wendell H. Grier (Grier), is a forty-eight year old
alcoholic. This Court placed him on
indefinite
suspension by order dated June 18, 1990, based upon a joint petition filed by Grier,
through counsel, and by Bar Counsel. At the end of December 1993 he petitioned
for
reinstatement, and we referred the matter to Bar Counsel for appropriate investigation. The
investigation was completed in September 1998. It confirmed the allegations of
the petition for
reinstatement and developed no information adverse to Grier since his
suspension. Next, a five member panel of the
[***2] Inquiry Committee unanimously
recommended Grier's
reinstatement, subject to conditions which we shall discuss,
infra. The Review Board, however,
recommended
against
reinstatement, by a vote of thirteen to one. This Court has divided on the issue.
At the time of Grier's
indefinite
suspension by consent, a petition for
disciplinary charges was pending against him. It alleged that his
misconduct involved
"a lack of
competence and an
escrow account which fell below the required balance to be held for a client." Other client complaints had been, or shortly thereafter were, made to Bar
Counsel. One of these involved the failure to pay, out of a client's recovery,
the client's $ 161 bill due to a pharmacy. The other client complaints
principally involved
[**1077] the failure diligently to follow through on matters undertaken for clients and
the failure to communicate with clients. All of the charges and client
[*144] complaints involved Grier's conduct during the period when he was an active
alcoholic.
The petition for
indefinite
suspension reveals that Grier had conferred with Richard Vincent, the Director of Lawyer
Counseling for the
Maryland State Bar Association, as early as 1988 and that
"in the
[***3] past few years" preceding the consent petition Grier had
"been treated for seizures and been in a detoxification program at Greater
Baltimore Medical Center." The record also reflects that between April 26 and May 8, 1990, Grier was a
patient at Baltimore County General Hospital. There, his first five discharge
diagnoses were:
"1. Acute pancreatitis[;] 2. Seizure disorder, possibly secondary to alcohol
abuse[;] 3. Acute and chronic
alcoholism[;] 4. Dehydration[; and] 5. Delirium tremens with
alcoholic withdrawal syndrome." When the consent petition was filed Grier was an inpatient in a thirty day
detoxification program at a treatment facility. It further appears that Grier
relapsed into drinking alcohol in January 1991.
Significantly, Grier has abstained from alcohol since April 1991. He attends
Alcoholics Anonymous meetings on
a regular basis, and his continued compliance with his program of sobriety was
verified to the inquiry panel by the Director of Lawyer
Counseling.
Following his
suspension Grier worked for approximately one year in telemarketing prior to obtaining a
position as a legal assistant at the Injured Workers' Insurance Fund, first in
the claims department
[***4] and, for the past three or four years, in the legal department. Grier's
supervisor in the legal department testified before the inquiry panel that
Grier's work product is
"satisfactory" and that he
"has always responded timely." Grier's previous supervisor in the claims division told Bar Counsel's
investigator that Grier
"has excellent work habits, [and] performs detailed and thorough legal research
in performing his daily functions." Since 1992 Grier has held a license from the State of Maryland as a real
estate appraiser, and he earns part-time income from work referred to him by attorneys.
[*145] The conditions under which the inquiry panel
recommended Grier's
reinstatement are summarized in the report of the Review Board as follows:
"(1) In accordance with Mr. Vincent's suggestions, the Panel required as a
condition for termination of
suspension that the Petitioner continue to attend regular meetings of
Alcoholics Anonymous and that he report regularly and directly to Richard Vincent ....
"(2) The Panel
recommended that Mr. Vincent render a written report for five (5) years from the date of
an Order terminating
suspension to Bar Counsel indicating Petitioner is complying with this
[***5] condition for termination of
suspension.[ n1 ]
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n1 We interpret
recommendations one and two to mean that the schedule of meetings between Grier and Mr.
Vincent would be determined by Mr. Vincent in his discretion and that Mr.
Vincent report to Bar Counsel after each of those meetings as to whether Grier
is complying.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
"(3) The Panel
recommended as another condition that
in the event Petitioner does not affiliate himself with a law firm that
maintains a separate bookkeeping department, that any
escrow or
trust account that the Petitioner maintains, shall be co-signed by a member of the Bar
acceptable to Bar Counsel.
"(4) The Panel
recommended also that a member of the Bar
monitor the Petitioner's law practice with said
monitoring to include a random review of a minimum of five (5) files, selected by that
monitor and not by the Petitioner, on a monthly basis for eighteen (18) months and
then on a
quarterly basis for
[**1078] forty-two (42) months from the date of an Order terminating
suspension. The Panel suggested
[***6] that whoever undertakes the
monitoring of the Petitioner's practice render
quarterly reports to Bar Counsel for five (5) years from the date of this Order."
(Emphasis
added).
The inquiry panel reached its
recommendation for
reinstatement, subject to the above conditions, after seeing and hearing from Grier, his
employment supervisor, a District Court of
[*146] Maryland judge, who appeared as a character witness, and Mr. Vincent. The
Review Board reached its decision based on the record. Its
recommendation against
reinstatement rests on three grounds. First, the Board did
"not feel that the Petitioner would either accept or cooperate" with the
recommended conditions. Second, the Board found
"difficulties with the Petitioner's
arrogance and perceived
evasiveness." Third, the Board was
"not
convinced that the Petitioner's problems would not have occurred absent his
alcoholism."
Bar Counsel
recommends
"that the Court take such action on the Petition as to the Court shall seem just
and proper." Should the Court determine to reinstate Grier, Bar Counsel
recommends, as conditions, continued attendance at
Alcoholics Anonymous, continued cooperation with Mr. Vincent and,
"should the Petitioner
[***7] engage in the private
practice of
law immediately or within two (2) years of
reinstatement, that his practice be monitored by a member of the bar
satisfactory to Bar Counsel with monthly reports for the first six (6) months and
quarterly reports thereafter and under such reasonable terms of
monitoring as [are] worked out between Bar Counsel and the
monitor."
In this Court, three judges have dissented from
reinstatement on conditions. Based on the inquiry panel's
recommendation for a
co-signor on
escrow account checks, the dissent concludes that the reason for the condition is that Grier
is not
"sufficiently trustworthy to maintain an
escrow or
trust account without an overseer." From the premise that Grier
"cannot be trusted to write checks on a
trust account without a
co-signor," the dissent concludes that he
"is not fit to
practice law in this State."
The diversity in the
recommendations that we have received represents differences of opinion with respect to
monitoring. The concept of
monitoring is traceable in this State at least to the late 1970s when the Standing
Committee on Rules of Practice and Procedure of this Court was considering
rules on attorney
competency and the
[***8] possible creation of a complaint-oriented peer review entity.
Rules Committee drafts of possible
[*147] rules placed this subject in a proposed new subtitle BX of the former Special
Proceedings Rules.
See Court of Appeals Standing Committee on Rules of Practice and Procedure (Rules Committee), Minutes of June 14-15, 1977, at 1 ("Consideration of the Report of the Attorney
Competency Subcommittee"). Michael J. Kelly, then Dean of the University of Maryland School of Law and
a member of the subcommittee, advocated that the contemplated entity not be
viewed
"as a censuring,
disciplinary body, but rather as one which should counsel and assist lawyers to improve
their performance."
Id. at 5. At that meeting the BX subcommittee was directed to draft rules that
would
"establish an
informal body to provide voluntary assistance and
counseling to lawyers" against whom complaints of incompetence had been filed.
Id. at 11. About one year later a redraft of proposed BX rules was discussed by
the
Rules Committee. Illustrations of the type of causes for complaints concerning
competence that the proponents of the BX rules envisioned were unpreparedness,
inexperience, understaffing,
alcoholism,
[***9] family stress, poor health, and poor case-control.
Rules Committee, Minutes of May 12-13, 1978, at 5.
The Board of Governors of the Maryland State Bar Association
"endorsed the concept that attorney
counseling is necessary and desirable to enhance the
competency
[**1079] of practicing attorneys," Maryland State Bar Association, Inc.,
Programs and Reports, Transactions, Jan. 1979, at 15, but the M.S.B.A. Board was evenly divided
over whether responsibility for the
counseling function should be assigned to the Attorney Grievance Commission or placed in
a
new entity.
Rules Committee, Minutes of Jan. 5, 1979, at 2. The proposed BX rules were never adopted.
Discussion of the
counseling concept, however, lead to the creation of the lawyers'
counseling position in the M.S.B.A. That discussion also led to this Court's
incorporation of the
monitoring concept into the case law of attorney discipline in
Attorney Grievance Commission v. Bailey, 286 Md. 630, 408 A.2d 1330 (1979).
Bailey was a criminal law practitioner who undertook to handle a real estate
closing. He withheld $ 1,000 to cover his
[*148] fee, recordation costs, and transfer taxes, but he did not record in the Land
Records
[***10] instruments required to consummate the closing until almost ten months
thereafter.
Id. at 636, 408 A.2d at 1333. In the interim, he had not placed in his
escrow account the money withheld to cover costs and taxes. We said that
Bailey's case was one of the types of situations contemplated by the lawyer
counseling proposal.
Id. at 637, 408 A.2d at 1334. The Court
suspended Bailey for three years, but with the right to apply, after thirty days of
suspension, for
reinstatement on conditions, one of which was that
"for the remainder of the original period of
suspension [Bailey] may participate in no field of the law other than the trial of
criminal cases unless he is associated in each and every endeavor outside the
criminal field with some other attorney or attorneys whom the Attorney
Grievance Commission or its designee has previously approved."
Id. at 638, 408 A.2d at 1335. We said that this was
"as close as we are able to come at this time to the type of
counseling which the Maryland State Bar Association earlier
recommended."
Id.
An
alcoholic attorney who had neglected his practice was before this Court in
Attorney Grievance Commission v. Finlayson, 293 Md. 156, 442 A.2d 565 (1982).
[***11] Finlayson had
"hit bottom" but had been abstaining from alcohol for approximately ten months.
Id. at 159, 442 A.2d at 567. We
suspended Finlayson indefinitely, but with the right to reapply under numerous
conditions, including that he
"shall be associated with another member of the bar of this Court who shall
monitor his activities as a practicing lawyer ...."
Id. at 160, 442 A.2d at 567.
Since the
Bailey and
Finlayson cases, it has become relatively common to require
monitoring appropriate to the circumstances as a condition of
reinstatement after a
suspension for
disciplinary violations that concern
competency. Typically the requirement has stated generally that the
monitor
"oversee" the practice of the sanctioned lawyer.
See,
e.g.,
Attorney Grievance Comm'n v. Brugh, 353 Md. 475, 727 A.2d 913 (1999);
Attorney Grievance Comm'n v. Kuhn, 353 Md. 423,
[*149] 726 A.2d 1269 (1999);
Attorney Grievance Comm'n v. Perweiler, 353 Md. 312, 726 A.2d 238 (1999);
Attorney Grievance Comm'n v. Kreamer, 353 Md. 85, 724 A.2d 666 (1999);
Attorney Grievance Comm'n v. Domingues, 352 Md. 395, 722 A.2d 883 (1999);
[***12]
Attorney Grievance Comm'n v. Massagli, 352 Md. 277, 721 A.2d 698 (1998).
Monitoring does not infringe on client confidentiality because the client consents to
disclosure to the
monitor.
In
Attorney Grievance Commission v. Aler, 301 Md. 389, 483 A.2d 56 (1984), this Court addressed a case analogous to Grier's. Aler was an attorney
admitted to the bar in 1963, who was
"'generally respected as a competent trial
attorney'" until he became severely
alcoholic in the late 1970s.
Id. at 396, 483 A.2d at 60 (quoting the findings of the hearing judge). After settling a personal injury
suit, Aler's client asked him to hold the funds in
escrow and disburse them on a monthly basis in order to cover the client's living
expenses; instead
[**1080] of doing so, Aler commingled the funds with his operating account, failed to
keep an accounting, and used the funds for his personal and office use. Aler
later attempted, unsuccessfully, to account for all of the funds, but did
represent the same client in subsequent matters without charging the client
fees to which Aler was entitled.
Id. at 391-94, 483 A.2d at 57-59. Aler later sought the help
[***13] of Richard Vincent, the same counselor in Grier's case, who verified that Aler
had been sober for
almost two years and had an
"excellent" prognosis for continued compliance.
Id. at 397, 483 A.2d at 60. The Court imposed an
indefinite
suspension, with right to reapply after thirty days, subject to a number of conditions,
including having a
monitoring attorney co-sign all trust and
escrow checks.
Id. at 400, 483 A.2d at 61-62.
See also
Attorney Grievance Comm'n v. Armanas, 336 Md. 562, 649 A.2d 1118 (1994) (indefinitely suspending attorney, and conditioning her
reinstatement on
"having an attorney,
satisfactory to Bar Counsel, to serve as a
monitor of her legal practice, including ... co-signing any attorney
escrow account maintained by [her]" for a period of three years);
Attorney Grievance Comm'n v. Noonan, 336 Md. 473, 648 A.2d 1025
[*150] (1994) (same, for a
period of at least two years);
Attorney Grievance Comm'n v. Brown, 332 Md. 451, 632 A.2d 149 (1993) (same, for a period of two years).
In
Attorney Grievance Commission v. Larsen, 324 Md. 114, 596 A.2d 623 (1991), our order terminating
[***14] the
indefinite
suspension of Larsen had included a condition that his
monitor co-sign all
escrow checks.
Id. at 115, 596 A.2d at 623. Larsen, however, opened a second office, of which his
monitor had no knowledge. In the reported decision we reimposed an
indefinite
suspension.
Against the foregoing background, we now address the particular concerns
expressed by the Review Board. We do not conclude, from the record as a whole,
that Grier will refuse to accept the conditions proposed by the inquiry panel
or fail to cooperate with a
monitor. He cooperated with the
five year investigation by Bar Counsel's office which began after Grier was no
longer actively
alcoholic. Bar Counsel's investigator verified all of the information furnished by Grier.
Although Bar Counsel did not expressly
recommend
reinstatement to the inquiry panel, he advised that group that there
"were no specific factors which would cause him to
recommend" that
reinstatement be denied.
The issue of Grier's perceived
arrogance and
evasiveness, mentioned by the panel chair and by the Board, is not generated by any common
ground. The panel chair stated that he
"had some problems with the Petitioner's
arrogance
[***15] and perceived
evasiveness and elusiveness," but that
"the general consensus [of the entire five member panel] is that the Petitioner
was as forthcoming as possible with his testimony." The panel said that Grier
"was questioned directly as to his plans if he is
reinstated to the
practice of law and he was equivocal at best and evasive at worst." This is understandable. He has no definite plans. Indeed, it might be
considered presumptuous for a
suspended lawyer to
assume that
reinstatement is going to be granted and to plan accordingly.
The Review Board quotes from the panel hearing transcript where Bar Counsel
questioned Grier about a possible condition
[*151] for a
co-signor on
escrow account checks. Grier, in substance, replied that the proposal carried a connotation
that it was necessary as
"a watch for my greed, avarice or black heartedness." He said that he did not need
"a watch for that because I'm not infected with that." He said that his past problems were due to his
alcoholism and that they
"did not arise out of some failing in my morals or my character." If such a condition was based on the belief that he could not
"be trusted," then Grier would
"have difficulty with that. I'd
[***16] be insulted." Nevertheless, Grier stated:
[**1081]
"I'll submit to any order that the Court of Appeals determines is necessary in
my case." In our view this portion of Grier's testimony is favorable to
reinstatement. Any honorable lawyer would be insulted if told that the purpose
for requiring two signatures on the
escrow account of the lawyer's solo practice was the belief that, otherwise, the lawyer would
steal from clients.
Nor do we find
arrogance in Grier's attributing his earlier
misconduct to
alcoholism. The joint petition for
indefinite
suspension by consent averred that
"the [Attorney Grievance] Commission believes that the
misconduct of Respondent is substantially related to his dependence on alcohol and an
indefinite
suspension [as contrasted with disbarment] is warranted." As this Court pointed out in
In re Barton, 273 Md. 377, 382, 329 A.2d 102, 105 (1974),
"to be
reinstated, one need not express 'contrition' which is inconsistent with a position to
which he honestly and sincerely adheres."
The panel's
recommendation for a
co-signor actually was prompted by two concerns, neither of which impugns Grier's
honesty. The first is possible relapse into
alcoholism,
[***17] and the second is Grier's lack of office management skills. Mr.
Vincent, Grier's expert witness on alcohol
counseling, told the panel that there was a ninety-five percent chance that Grier would
never relapse into active
alcoholism. It is that five percent risk which the
co-signor condition addresses. Indeed, if the panel's
recommendation were motivated by a concern over Grier's honesty, the panel should not have
recommended
reinstatement at all, as the dissenters in this Court point out. The panel, however,
obviously had no concern about Grier's
[*152] honesty inasmuch as it found no need for a
co-signor were Grier to be practicing in a law firm that maintains a separate
bookkeeping department. n2
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 The mere requirement for
co-signors on checks does not demonstrate that any authorized signatory is untrustworthy.
Were that the case then all large law firms that, as a matter of general
prudence, have a two signature requirement on checks would be composed of
lawyers who should not be
practicing.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The second concern
[***18] of the panel was that Grier
"has not established to the satisfaction of the Panel clear and convincing
evidence that he is competent to handle a private practice without any guidance
or assistance relating to the handling of
escrow and trust accounts." Although the panel accepted that Grier's
"problems were caused at least in major part by his active
alcoholism," the panel also expressed
"concern that [Grier] did not have the support and ... wherewithal[] to maintain
a practice" during the period of his
misconduct. He had
"worked alone and had no consistent staff to speak of." The panel also noted that he neither engaged an accountant's services nor took
any meaningful courses in maintaining a
trust account. These concerns go to
competence, not to trustworthiness; they are the type of concerns that ordinarily can be
successfully addressed by
monitoring.
The Review Board also was
"not
convinced that ... [Grier's] problems ... would not have occurred absent [his]
alcoholism." This conclusion seems to relate to the panel's
concern with
competence described in the immediately preceding paragraph. Under the circumstances
here, it is a basis for a
monitoring condition, but not for
[***19] denial of
reinstatement. If we were to reject Grier's application for this reason we would be rejecting
counseling, as contrasted with the exclusive use of
disciplinary sanctions, as a method of dealing with problems of
competency, particularly in office management.
Counseling is a policy that we adopted at the urging of the bar and that we have sought
to implement, when appropriate, for the past twenty years.
[*153] Here, Grier has been
suspended for over nine years, and the issue is whether the sanction should be continued
or whether Grier should be given the opportunity, under safeguards designed to
protect the public, to demonstrate that he can
[**1082] competently manage his law practice. Based on our independent review of the
record we conclude that Grier should be given that opportunity and be
conditionally
reinstated. Having carefully considered the analyses presented by the inquiry panel and by
the Review Board, we find the former to be more
persuasive. We also are mindful that Bar Counsel does not oppose
reinstatement but has presented proposed conditions acceptable to that office.
Accordingly, Grier is
reinstated to the bar of this Court, subject to the conditions set forth below.
1.
[***20] Continued and regular participation in
Alcoholics Anonymous for the
indefinite future.
2. Continued
counseling with Richard Vincent, or his designee or successor, as counselor at the
Maryland State Bar Association, at intervals and for a period to be determined
by Mr. Vincent, with reports to Bar Counsel at intervals and for a period to be
determined by Bar Counsel.
3. In the event Grier engages in the private
practice of law,
monitoring of his practice by a member of the bar who is
satisfactory to Bar Counsel and who may be a member of a firm with which Grier is
associated. If Grier's private practice is as a solo practitioner, checks on
Grier's
escrow account shall be
co-signed by the
monitor. The
monitor shall submit reports monthly to Bar Counsel for the first six months of
monitoring, and
quarterly thereafter.
Monitoring shall be conducted under such other reasonable terms as are agreed upon
between the
monitor and Bar Counsel. The conditions of this paragraph three remain in effect until
altered or terminated by further order of this Court.
4. Grier shall pay all costs of the
reinstatement investigation.
[*154] 5. Grier shall attend the professionalism course required of new admittees.
[***21]
IT IS SO ORDERED.
DISSENTBY: Raker
DISSENT:
Raker, J., dissenting:
This matter is before the Court on a petition for
reinstatement to the
practice of law by Petitioner Wendell H. Grier. After a hearing pursuant to Maryland Rule
16-714, Courts, Judges and Attorneys, Termination--Modification--Reinstatement, the Review Board of the Attorney Grievance Commission, in a 13-1 vote, voted
to
recommend denial of Grier's Petition for
Reinstatement, concluding that Grier had not shown the necessary present
qualifications to
practice law at this time. Nonetheless, this Court has
reinstated Grier as a member of the Bar of this State, with the condition that should
Petitioner engage in the private
practice of law within two years of his
reinstatement, his practice be monitored by a member of the Bar, with monthly reports for the
first six months and
quarterly reports thereafter and under such reasonable terms of
monitoring as worked out between Bar
Counsel and the
monitor. I agree with the near unanimous
recommendation of the Review Board, and respectfully dissent. In my view, Petitioner has
failed to satisfy his heavy burden that he presently possesses the good moral
character to
practice law.
[***22] Based on the record before this Court, and the
recommendation and findings of the Review Board and Inquiry Panel, I am unable to assure the
public that this Petitioner, if he were restored to the
practice of law, can be trusted to do so in a responsible and competent manner.
See
In re Barton, 273 Md. 377, 381, 329 A.2d 102, 105 (1974).
A person who has been
suspended from the
practice of law may file a petition in the Court of Appeals to terminate a
suspension.
See Maryland Rule 16-714 a. The Court may reserve judgment on the petition until
after a hearing. If the Court reserves judgment, the rule directs
Bar Counsel to conduct an appropriate investigation and to refer the petition
[*155] to an Inquiry Panel and subsequent review by the
[**1083] Review Board.
See Maryland Rule 16-714 d 2. Bar Counsel shall transmit to the Court the
recommendations of the Review Board, and any evidence.
See id. The burden is on the petitioner to establish the averments of the petition by
clear and convincing proof.
See
Maryland Rule 16-714 d 4.
The principal criteria this Court has traditionally considered in assessing
whether a person should be readmitted or
reinstated to the Bar
[***23] are as follows:
1. The nature and circumstances of petitioner's original
misconduct;
2. Petitioner's subsequent conduct and reformation;
3. Petitioner's present character; and
4. Petitioner's present
qualifications and
competence to
practice law.
See
Reinstatement of Keehan, 342 Md. 121, 125, 674 A.2d 510, 512 (1996);
In re Braverman, 271 Md. 196, 199-200, 316 A.2d 246, 247 (1974).
On January 22, 1990, Bar Counsel filed a Petition for
Disciplinary Action against Wendell Harry Grier, charging that Grier misused client funds
and commingled funds in his
escrow account. The Petition alleged violations of Maryland Rules of Professional Conduct 1.1 (Competence), 1.4 (Communication), 1.5 (Fees), 1.15 (Safekeeping Property), 1.16 (Declining
or Terminating Representation), 8.1 (Bar Admission and
Disciplinary Matters), and 8.4 (Misconduct), as well as of the statute governing attorney trust accounts, Maryland Code
(1989, 1995 Repl. Vol., 1998 Cum. Supp.)
§ 10-301 to 10-307 of the Business Professions and Occupations Article. In the
Petition, Bar Counsel alleged that Grier's
escrow account balance fell below the amount he should have been holding
[***24] for
client Larry Levenson, and that checks issued on the
escrow account were returned for insufficient funds. Bar Counsel further alleged that during
the period of September 1, 1987 through February 29, 1988, Grier commingled
funds from several estates in his general
escrow account, and on various occasions drew checks from the
escrow account payable to
[*156] himself, without notation regarding his entitlement to those funds. Grier
failed to respond to oral and written requests of Bar Counsel for information
regarding the returned checks.
Petitioner was indefinitely
suspended, by consent, on June 18, 1990. n1 He was an active
alcoholic at that time. Shortly after he was
suspended, several additional client complaints were received by the Attorney Grievance
Commission. n2 The complainants were informed that their complaints would be
placed in Grier's file, to be considered when and if he applied for
reinstatement. n3
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 A
suspension
by consent in light of allegations of
escrow violations will not render the
misconduct less serious than a judicial determination of the same conduct, and will not
affect the test that must be satisfied to justify
reinstatement.
[***25]
n2 In total, eight
disciplinary complaints were either pending at the time of Petitioner's
suspension or were subsequently received in the office of Bar Counsel.
n3 These complaints were reviewed with Petitioner as part of the
reinstatement Petition.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
On December 29, 1993, Wendell H. Grier filed a Petition for
Reinstatement in the Court of Appeals. This Court ordered an investigation and that costs in
the sum of $ 800.00 be deposited with the Commission. The money was not
received by the Commission until November 29, 1996. A hearing was held, and the
Inquiry Panel
recommended
reinstatement, with special conditions as follows: (1) that in the event Petitioner did not
affiliate
himself with a law firm that maintains a separate bookkeeping department, any
escrow or
trust account Grier maintains be co-signed by a member of the Bar, (2) that five files a
month be reviewed on a random basis for eighteen months and
quarterly for forty-two months thereafter, and that whoever undertakes
monitoring of his practice render
quarterly reports to Bar Counsel for five years, (3) that Petitioner continue
[***26] to
[**1084] attend
Alcoholics Anonymous and that he report regularly and directly to Richard Vincent, the
Director of Lawyer
Counseling for the Maryland State Bar Association, and (4) that a written report for a
period of five
[*157] years after
reinstatement be sent to Bar Counsel from Richard Vincent. As previously indicated, the
Review Board voted to deny
reinstatement.
Petitioner's present fitness to
practice law must be considered in
light of the nature and circumstances of his original
misconduct. Petitioner's transgressions were of the utmost gravity--misuse of client funds
and commingling of funds in his
escrow account.
See
In re Barton, 273 Md. 377, 380, 329 A.2d 102, 104 (1974);
In re Lombard, 242 Md. 202, 206, 218 A.2d 208, 211 (1966). The Board was not
convinced that Petitioner's problems would not have occurred absent his
alcoholism, noting that Petitioner employed no consistent staff, did not engage the
services of an accountant, and had taken no courses in regard to maintaining an
escrow or
trust account. In addition, to aggravate matters, he failed to cooperate with Bar Counsel's
investigation. Ordinarily, a member of the Bar would be disbarred for
[***27] the
trust account violations.
See
Attorney Griev. Comm. v. Milliken, 348 Md. 486, 519, 704 A.2d 1225, 1241 (1998);
Attorney Griev. Comm. v. Kenney, 339 Md. 578, 587, 664 A.2d 854, 858 (1995). This Court has said that
"the more serious the original
misconduct was, the heavier is the burden to prove present fitness for readmission to the
bar."
In re Barton, 273 Md. at 380, 329 A.2d at 104. I agree with the conclusion of the Review Board that Petitioner has not
satisfied his burden in establishing that he is presently fit to
practice law.
As to Petitioner's subsequent conduct and reformation, the evidence was largely
favorable. As to his present character, the Inquiry Panel noted the favorable
testimony of the Honorable Askew Gatewood, but the Review Board had concerns
with what they perceived as
arrogance and
evasiveness on the part of Petitioner. The Board noted:
A review of the complete transcript indicates that Petitioner seldom answered a
direct question in a
direct manner. Rather, Petitioner used a great deal of verbiage to impart very
little substantive knowledge to the questions posed by the Inquiry Panel.
Petitioner's response
[***28] to Mr. Hirshman's question regarding the setting of conditions for
reinstatement
[*158] appears symptomatic of a lack of insight into the underlying problems that
brought him to the attention of the Attorney Grievance Commission in the first
place.
Finally, both the Review Board and Inquiry Panel had concerns regarding
Petitioner's present
qualifications to
practice law.
The Review Board believed that Petitioner had not shown the necessary
qualifications to
practice law at this time. The Board did not believe that Petitioner would either accept or
cooperate with a
monitor or the conditions suggested by the Inquiry Panel. In the Board's report,
several significant observations were noted:
1. The Panel noted that this Bar has been very consistent in the harsh handling
of attorneys who violate the trust of the public
in misusing trust accounts.
2. Petitioner had not taken courses or classes of note regarding the
maintenance of an
escrow or
trust account.
3. While Petitioner's
misconduct may have been caused in major part by his
alcoholism, both the Panel and the Review Board were not
convinced that these are problems that would not have occurred absent the
alcoholism.
4.
[***29] Petitioner did not establish that he is presently competent to handle a
private practice without guidance and assistance in relation to the maintenance
of
escrow and trust accounts.
5. There existed a marked paucity of evidence regarding Petitioner's present
qualifications and
competence. Petitioner presented no evidence that he took
[**1085] continuing legal education courses during the past 8 years regarding any
substantive areas of law that he may go into if
reinstated.
The Panel and the Board had the opportunity to view the witnesses and judge
their veracity and credibility. While the final determination as to
reinstatement
rests with this Court, and we review the
recommendation of the Board
de novo,
the findings of the Panel and the Board are entitled to some consideration, if
not some measure of deference.
[*159] In the discharge of our duty and our original jurisdiction in
disciplinary proceedings, this Court is charged with the responsibility to protect the
public, to maintain the integrity of the legal profession and to deter other
lawyers from engaging in violations of the Rules of Professional Conduct.
See
Milliken, 348 Md. at 516, 704 A.2d at 1239. There
[***30] is perhaps no greater act of professional
misconduct than the misuse of client funds. The Supreme Court of New Jersey noted, in
In the
Matter of Wilson, 81 N.J. 451, 409 A.2d 1153, 1154 (1979), that the rule against misappropriating client funds has its roots in the
confidence and trust which clients place in their attorneys.
Having sought his advice and relying on his expertise, the client entrusts the
lawyer with the transaction--including the handling of the
client's funds. Whether it be a real estate closing, the establishment of a
trust, the purchase of a business, the investment of funds, the receipt of
proceeds of litigation, or any one of a multitude of other situations, it is
commonplace that the work of lawyers involves possession of their clients'
funds. That possession is sometimes expedient, occasionally simply customary,
but usually essential. Whatever the need may be for the lawyer's handling of
clients' money, the client permits it because he trusts the lawyer.
It is a trust built on centuries of honesty and faithfulness. Sometimes it is
reinforced by personal knowledge of a particular lawyer's integrity or a firm's
reputation. The underlying faith,
[***31] however, is in the legal profession, the bar as an institution. No other
explanation can account for clients' customary willingness to entrust their
funds to relative strangers simply because they are lawyers.
How does a
monitor and
co-signor fit with this philosophy? Is the client told of the requirement
for an overseer and a
co-signor on the
escrow account? And the reasons therefor?
The practice of appointing a
monitor to serve as a watch person over an
escrow account is, in my view, highly inappropriate. First and foremost, every member of the
Bar should be sufficiently trustworthy to
practice law without a
monitor.
[*160] Second, there is evidence that the
monitor system does not work.
See,
e.g.,
Attorney Griev. Comm. v. Larsen, 324 Md. 114, 596 A.2d 623 (1991) (attorney's
indefinite
suspension reimposed after he violated condition that a
monitor co-sign all
escrow checks).
I cannot conclude, based on the record before us, that we uphold our grave
responsibility when we reinstate Petitioner at this time. A member of the Bar
of this State should be sufficiently trustworthy to maintain an
escrow or
trust account without an overseer. If an attorney cannot
[***32] be trusted to write checks on a
trust account without a co-signer, that person is not fit to
practice law in this State. I would deny the Petition for
Reinstatement at this time.
Judge Wilner and Judge Cathell have authorized me to state that they join in
the views expressed herein.
