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Attorney Grievance Commission of Maryland v. Cotie W. Jones

IN THE COURT OF APPEALS OF MARYLAND


August 27, 2012

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
COTIE W. JONES

Per curiam.

Attorney Grievance Commission v. Cotie W. Jones, Miscellaneous Docket AG No. 9, September Term, 2009

ATTORNEY DISCIPLINE-SANCTIONS-DISBARRMENT: Court of Appeals disbarred the respondent, Cotie W. Jones, for intentional misappropriation of trust money, the use of this money for personal expenses, failure to properly designate his attorney trust account checks, and failure to respond to the petitioner's lawful demands for information which, it concluded, violated Maryland Lawyers' Rules of Professional Conduct 1.15, 8.1 and 8.4, as adopted by Maryland Rule 16-812; Md. Rules 16-606, 16-607, and 16-609; and Maryland Code, Business Occupations and Professions Article, §§ 10-306.

Bell, C.J. Harrell Battaglia Greene *fn1 Murphy Adkins Barbera, JJ

I.

The Attorney Grievance Commission of Maryland ("AGC"), the petitioner, acting pursuant to Md. Rule 16-751,*fn2 filed, through Bar Counsel, a Petition for Disciplinary or Remedial Action against Cotie W. Jones, the respondent. In the Petition, the petitioner alleged that the respondent violated Rules 1.15 Safekeeping Property,*fn3 8.1 Bar Admission and Disciplinary Matters,*fn4 and 8.4 Misconduct*fn5 of the Maryland Lawyers' Rules of Professional Conduct ("MRPC"), as adopted by Md. Rule 16-812; Maryland Rules 16-606 Name and Designation of Account,*fn6 16-607 Commingling of Funds,*fn7 16-609 Prohibited property in which two or more persons (one of whom may be the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall distribute promptly all portions of the property as to which the interests are not in dispute."

Transactions;*fn8 and § 10-306*fn9 of the Maryland Code (1989, 2010 Repl. Vol., 2011 Supp.) Business Occupations and Professions Article ("BP"), thus subjecting him to BP § 10-606 (b) Penalties.*fn10 He is thus, it submits, subject to this Court's disciplinary authority pursuant to MRPC 8.5 (a).*fn11

Pursuant to Md. Rule 16-752 (a),*fn12 we transmitted this matter to the Hon. Toni E. Clarke of the Circuit Court for Prince George's County, for hearing, pursuant to Rule 16- 757.*fn13 Although served with the Petition by the petitioner, the respondent neither filed an answer to the petition nor moved to vacate the Order of Default that the petitioner obtained pursuant to Md. Rules 2-613 (b)*fn14 and 16-754*fn15 (c). Following a hearing, at which the respondent failed to appear and testimony and documentary evidence were received, the hearing court, pursuant to Maryland Rule 16-757 made findings of fact, by the clear and convincing standard, and drew conclusions of law, as follows:

"Respondent was originally admitted to the Bar of the Court of Appeals of Maryland on June 21, 1995. He has maintained a law practice at 1009 Folcroft Lane, Largo, Maryland. On April 6, 2009, by Order of the Court of Appeals of Maryland, Respondent was temporarily suspended and prohibited from the further practice of law in the State of Maryland for nonpayment of his annual assessments to the Client Protection Fund.

"On or about March 28, 2008, Respondent received a check in the amount of $1,000 from his client, World of Hardwoods, Inc. for payment of legal fees. Respondent deposited the $1,000 funds to his attorney trust account on the same day. After the deposit was made, Respondent's attorney trust account had a balance of $1,149.76. Also on March 28, 2008, Respondent deposited a check in the amount of $230.00 from 'Nichelle Owens-Jones' for payment of Respondent's 'bar' dues, totaling Respondent's attorney trust account balance to $1,379.76.

"Subsequently, from March 28, 2008 through April 15, 2008, Respondent issued several checks totaling $1,385.00 to himself 'Cotie W. Jones', his wife, and to other third parties on behalf of himself for payment of his personal and/or business expenses as follows:

Date Check Amount of Payable to of check Nos. check

3/28/08 1455 $40.00 Cotie W. Jones

3/28/08 1457 $50.00 Cotie W. Jones

3/29/08 1458 $150.00 Cotie W. Jones

3/28/08 1456 $210.00 Client Protection Fund for "Bar Dues"

4/03/08 1459 $60.00 Cotie W. Jones

4/04/08 1460 $250.00 Nichelle D. Owens-Jones

4/07/08 1461 $125.00 Comcast for "internet/cable"

4/08/08 1462 $200.00 Cotie W. Jones

4/13/08 1463 $125.00 Nichelle D. Owens-Jones for "bill"

4/14/08 1464 $175.00 Cotie W. Jones

"On the checks issued to 'Comcast' and 'Client Protection Fund', the words 'Client Escrow' on Respondent's Client Escrow Account checks were scratched off, presumably by Respondent. After the presentment of Check No. 1463 in the amount of $125 to 'Nichelle D. Owens-Jones' on April 15, 2008, to the bank, there were insufficient funds to cover the amount of the check. Bank of America, nevertheless, honored the check, resulting in an overdraft on Respondent's attorney trust account and a negative balance of $-5.24. No other monies were deposited to Respondent's attorney trust account until April 21, 2008.

"According to the bank records of Respondent's attorney trust account and the analysis provided by Paralegal of the Attorney Grievance Commission, John Debone, Respondent withdrew $5.24 more than he was permitted for his own benefit as fees earned after depositing the $1,000 funds from his client World of Hardwoods, Inc. as payment for his legal fees, thereby causing the overdraft on his attorney trust account.

"On or about April 21, 2008, Bar Counsel received an Overdraft Report dated April 16, 2008, from Bank of America of Respondent's attorney trust account. The report advised that an overdraft was created on April 15, 2008, in the amount of (negative) -$5.24. On April 29, 2008, Deputy Bar Counsel, Glenn Grossman, sent a letter to Respondent via certified mail requesting his written response to the April 16, 2008, overdraft notice of his attorney trust account from Bank of America, including copies of his client ledger cards, deposit slips, canceled checks, and monthly bank statements of his escrow account from the period 'January 2008 to the present'. The certified mail return receipt shows that Respondent signed for and received Deputy Bar Counsel's April 29, 2008, letter on or about May 13, 2008. Respondent did not respond to that letter.

"On June 18, 2008, Deputy Bar Counsel sent another letter to Respondent requesting his written response to the overdraft notice from Bank of America of his attorney trust account. Respondent did not respond to that letter. On July 1, 2008, Deputy Bar Counsel sent a third letter to Respondent requesting his written response to the overdraft notice from Bank of America of his attorney trust account. Respondent did not respond to that letter.

Consequently, Petitioner subpoenaed relevant bank records, including copies of monthly bank statements, canceled checks, and deposit slips, of Respondent's attorney trust account. "The subpoenaed records show that from the period March 2008 through August 2008, Respondent used his attorney trust account for personal and business matters. For instance, Respondent made payments to Comcast, Client Protection Fund, and his wife, Nichelle D. Owens-Jones. The records further show that Respondent does not have the proper name and designation on his trust account checks as required by Md. Rule 16-606." On the basis of these findings, the hearing court concluded that the respondent violated each of the charged violations. As to MRPC 1.15 (a) and 8.4 (c), Md. Rule 16-609, and BP §§ 10-306 and 10-606, it found that the respondent's withdrawal, from his attorney trust account, of more funds for his own benefit than he had earned as fees, constituted those violations. Md. Rule 16-607 was violated, the hearing court concluded, when the respondent used these funds for the payment of his personal and business debts. The hearing court, in addition, determined that the respondent's failure to designate his trust account checks properly was a violation of Md. Rule 16-606, and his willful failure to respond to the petitioner's lawful requests for information and an explanation violated MRPC 8.1 (b). The hearing court concluded, on balance, that the respondent's conduct was prejudicial to the administration of justice, in violation of MRPC 8.4 (d).

II.

The Court of Appeals of Maryland "has complete jurisdiction over attorney discipline proceedings" in this state. Attorney Grievance Comm'n v. Nwadike, 416 Md. 180, 192, 6 A.3d 287, 294 (2010) (quoting Attorney Grievance Comm'n v. Thomas, 409 Md. 121, 147, 973 A.2d 185, 200 (2009)) (internal quotation marks omitted). "In our independent review of the record, we accept the hearing judge's findings of fact as prima facie correct unless shown to be clearly erroneous." Attorney Grievance Comm'n v. Stern, 419 Md. 525, 556, 19 A.3d 904, 925 (2011); see also Attorney Grievance Comm'n v. Palmer, 417 Md. 185, 205, 9 A.3d 37, 49 (2010); Attorney Grievance Comm'n v. Boyd, 333 Md. 298, 303, 635 A.2d 382, 384 (1994). In those cases "where neither the petitioner nor the respondent files exceptions to the findings of fact, as is the case here, this Court 'may treat the findings of fact as established for the purpose of determining appropriate sanctions, if any.'" Attorney Grievance Comm'n v. Goodman, 426 Md. 115, 124, 43 A.3d 988, 993 (2012) (quoting Md. Rule 16-759 (b) (2) (A)); Attorney Grievance Comm'n v. Logan, 390 Md. 313, 319, 888 A.2d 359, 363, (2005). While the "trier of fact may elect to pick and choose which evidence to rely upon," Attorney Grievance v. Nothstein, 300 Md. 667, 684, 480 A.2d 807, 816 (1984), pursuant to Md. Rule 16-759 (b) (1),*fn16 our review of the Circuit Court's conclusions of law, based upon its survey of that evidence, is conducted de novo. Goodman, 426 Md. at 124, 43 A.3d at 993.

Upon our de novo review of the hearing court's conclusions of law, we are satisfied that they follow from, and are supported by, the court's factual findings, which have been established.

Although not stated in these terms, the hearing court has found facts, from which it concluded that the respondent misappropriated client funds. Indeed, that ordinarily is the effect of violations of MRPC 1.15, Rule 16-609 and BP 10-306.

Misappropriation is defined as "any unauthorized use by an attorney of a client's funds entrusted to him or her, whether or not temporary or for personal gain or benefit." Attorney Grievance Comm'n v. Glenn, 341 Md. 448, 484, 671 A.2d 463, 481 (1996) (quoting In re Harrison, 461 A.2d 1034, 1036 (D.C. App. 1983)) (internal quotation marks omitted). The respondent's withdrawal of funds from his trust account for personal, unauthorized purposes, thus amounted to misappropriation.

Accordingly, all that remains is determining the appropriate sanction.

This Court is authorized to impose sanctions for attorney misconduct pursuant to MRPC 8.5 (a). Such disciplinary authority is necessary "to protect the public and its confidence in the legal profession." Goodman, 426 Md. at 131, 43 A.3d at 997. In that regard, we reiterate what we stated in Attorney Grievance Comm'n v. Sheridan, 357 Md. 1, 741 A.2d 1143 (1999):

"Because an attorney's character must remain beyond reproach, this Court has the duty, since attorneys are its officers, to insist upon the maintenance of the integrity of the bar and to prevent the transgressions of an individual lawyer from bringing its image into disrepute. Disciplinary proceedings have been established for this purpose, not for punishment, but rather as a catharsis for the profession and a prophylactic for the public."

Id., 357 Md. at 27, 741 A.2d at 1157 (quoting Attorney Grievance Comm'n v. Deutsch, 294 Md. 353, 368-69, 450 A.2d 1265, 1273 (1982)). Additionally, "disciplinary proceedings and the sanctions imposed have the goal . . . of 'deterring other lawyers from engaging in similar conduct.'" Goodman, 426 Md. at 132, 43 A.3d at 998 (quoting Attorney Grievance Comm'n v. Stein, 373 Md. 531, 537, 819 A.2d 372, 375 (2003)).

When imposing sanctions for attorney misconduct, "we consider the nature of the ethical duty violated in light of any aggravating or mitigating circumstances." Attorney Grievance Comm'n v. Nussbaum, 401 Md. 612, 643, 934 A.2d 1, 19 (2007) (citing Attorney Grievance Comm'n v. Sweitzer, 395 Md. 586, 598-99, 911 A.2d 440, 447-48 (2006)). Indeed, the public interest is safeguarded "when sanctions are imposed that are commensurate with the nature and gravity of the violations and the intent with which they were committed." Attorney Grievance Comm'n v. Gore, 380 Md. 455, 472, 845 A.2d 1204, 1213 (2004).

The petitioner recommends that the respondent be disbarred. In support of that recommendation, it emphasizes the gravity of the respondent's misconduct, the misappropriation of client funds, as well as the respondent's failure to acknowledge this Court's disciplinary authority, having failed to respond, in any way, to these proceedings. We adopt that recommendation.

It has been our long-held and consistent position that the "entrustment to [attorneys] of the money and property of others involves a responsibility of the highest order," and further, that "[a]ppropriating any part of those funds to their own use and benefit without clear authority to do so cannot be tolerated." Attorney Grievance Comm'n v. Owrutsky, 322 Md. 334, 345, 587 A.2d 511, 516 (1991); see also Attorney Grievance Comm'n v. Cherry- Mahoi, 388 Md. 124, 161, 879 A.2d 58, 81 (2005). Thus, we long have been clear, "[m]isappropriation, by an attorney, of funds entrusted to his or her care is an act infected with deceit and dishonesty and, in the absence of compelling extenuating circumstances justifying a lesser sanction, will result in disbarrment." Attorney Grievance Comm'n v. Spery, 371 Md. 560, 568, 810 A.2d 487, 491-92 (2002); see also Goodman, 426 Md. at 132, 43 A.3d at 998; Cherry-Mahoi, 388 Md. at 161, 879 A.2d at 81; Attorney Grievance Comm'n v. Sperling, 380 Md. 180, 191, 844 A.2d 397, 404 (2004); Attorney Grievance Comm'n v. Vanderline, 364 Md. 376, 410, 773 A.2d 463, 482 (2001).

The respondent has failed to present any extenuating circumstances - indeed, he has failed to present any explanation for his conduct at all - never mind compelling ones, which would cause this Court to deviate from this oft enunciated principle. He did not ever respond to Deputy Bar Counsel's requests for information, and he has not participated in these proceedings. We have stated that where, as is the case here, a respondent does not file any exceptions, "we treat the findings of fact as established." Rule 16-759 (b) (2) (A).*fn17 Furthermore, we are satisfied, upon review pursuant to Rule 16-759 (b) (1), supra note 15, that the Circuit Court's conclusions of law, in light of its factual findings, represent a sound and proper interpretation of the governing rules. The respondent shall be disbarred.

IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING COSTS OF ALL TRANSCRIPTS, PURSUANT TO MARYLAND RULE 16-761, FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST COTIE W. JONES.


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