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Attorney Grievance Commission of Maryland v. Harmon

Court of Appeals of Maryland

August 19, 2013


Circuit Court for Prince George's County Case # CAE10-35231.

Barbera, C.J. Harrell Battaglia Greene Adkins [*] Bell Eldridge, John C. (Retired, Specially Assigned), JJ.


Petitioner, the Attorney Grievance Commission ("AGC"), acting through Bar Counsel, filed, in accordance with Maryland Rule 16–751, [1] a Petition for Disciplinary or Remedial Action ("the Petition") against Anthony Maurice Harmon ("Respondent") for violations of the Maryland Lawyers' Rules of Professional Conduct ("MLRPC"). Petitioner contends that Respondent commingled funds and failed to properly maintain an attorney trust account and related financial records, in violation of MLRPC 1.15 (Safekeeping Property)[2] and 8.1(b) (Bar Admission and Disciplinary Matters), [3] as well as Maryland Rules 16–606.1 (Attorney Trust Account Record-Keeping), [4] 16–607 (Commingling Funds), [5] and 16–609 (Prohibited Transactions).[6], [7]

In accordance with Maryland Rule 16–752(a), [8] we referred the Petition to the Honorable Toni E. Clarke of the Circuit Court for Prince George's County for an evidentiary hearing and to make findings of fact and conclusions of law in accordance with Maryland Rule 16–757.[9]

I. Procedural History

Respondent was personally served with the Petition on November 22, 2010. He did not file an answer within fifteen days of service, as required by Maryland Rule 16–754.[10] The same day Respondent was served with the Petition, he was served with Petitioner's Requests for Admission of Facts and Genuineness of Documents. Harmon did not respond either to those requests.

Because Harmon did not file an answer, Petitioner filed, on March 1, 2011, a Motion to Extend Time for Judicial Hearing with this Court, see generally Md. Rule 16–757(a) (requiring a hearing to be "completed within 120 days after service on the respondent of the order designating a judge, " unless otherwise ordered by the Court of Appeals), so that the Circuit Court could enter an order of default. See Md. Rule 16–754(c) ("If the time for filing an answer has expired and the respondent has failed to file an answer . . . the court shall treat the failure as a default and the provisions of Rule 2–613 shall apply."); Md. Rule 2–613 (permitting a court to enter an order of default if no responsive pleading is filed). We granted Petitioner's motion, thus extending the time for completion of the hearing until April 12, 2011. Petitioner filed a Motion for Order of Default with the Circuit Court on March 4, 2011, which was granted by Judge Clarke on March 9, 2011. The Order of Default and notice that a hearing was scheduled for April 12, 2011 were mailed to the three known addresses of Harmon.

Maryland Rule 2–613(d) provided Respondent with thirty days to move to vacate the Order of Default or otherwise respond to the Notice of Order of Default. Respondent did not take any action during this time. Respondent appeared at the April 12 hearing, however, with an Opposition to the Motion to Default[11] and an Answer to the Petition. Respondent argued that his failure to timely file an Answer was due to family and personal problems, including divorce, foreclosure, and the death of a family member. Finding that Respondent did not satisfactorily substantiate any averment meeting the standard for vacating the Order of Default under Maryland Rule 2–613(d), [12] the Circuit Court denied Respondent's motion. The factual averments made in the Petition were, therefore, deemed admitted, see Md. Rule 2–323(e) ("Averments in a pleading to which a responsive pleading is required . . . are admitted unless denied in the responsive pleading . . . ."); Attorney Grievance Comm'n v. Lee, 390 Md. 517, 524, 890 A.2d 272, 277 (2006), as were the matters contained in the Requests for Admission of Facts and Genuineness of Documents previously served on, but never responded to by, the Respondent. See Md. Rule 2–424(b) ("Each matter of which an admission is requested shall be deemed admitted unless . . . the party to whom the request is directed serves a response . . . .").

Following the evidentiary hearing, at which Respondent was permitted to participate, Judge Clarke issued her Findings of Fact and Conclusions of Law, in which she concluded, by clear and convincing evidence, that Respondent violated MLRPC 1.15 and 8.1(b), and Maryland Rules 16–606.1, 16–607, and 16–609. Harmon filed with this Court, one day before oral argument, an Opposition to the Petitioner's Recommendation for Sanction. Petitioner did not receive a copy of Harmon's Opposition until the day of oral argument, and accordingly asked this Court to strike Harmon's Opposition as untimely.

II. Hearing Judge's Findings of Fact and Conclusions of Law

Harmon maintained an attorney trust account at Bank of America. On or about June 10, 2009, Harmon authorized the transfer of $500 from his attorney trust account to a personal account of his. At the time the transfer was authorized, however, the attorney trust account did not have sufficient funds. As a result, the attorney trust account was overdrawn in the amount of $101.50.

On or about July 22, 2009, Bar Counsel[13] mailed a letter to Respondent to inform him of the overdraft and request that Respondent provide an explanation for the overdraft and copies of his financial records. Harmon did not respond to Bar Counsel's request.

Bar Counsel mailed a second letter to Harmon on or about August 19, 2009, regarding the overdraft. On or about August 22, 2009, Harmon responded to Bar Counsel's inquiry, stating that the overdraft occurred after he deposited a retainer check from a client and subsequently transferred $500 to his business checking account to pay rent for his office space. He also provided records indicating that, on June 8, he ...

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