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Attorney Grievance Commission of Maryland v. Kotlarsky

Court of Appeals of Maryland

June 22, 2017

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
MARK KOTLARSKY

          Argued: April 4, 2017

         Circuit Court for Montgomery County Case No. 32608-M

          Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

          OPINION

          Hotten, J.

         Respondent, Mark Kotlarsky, was admitted to the Bar of Maryland on December 15, 1992. On August 22, 2016, the Attorney Grievance Commission of Maryland ("the Commission"), through Bar Counsel, filed in this Court a Petition for Disciplinary or Remedial Action ("Petition") against Respondent as a result of having received a notice from Citibank that Respondent had over-drafted his operating account ending in -3487. Upon investigation, the Commission discovered that Respondent had failed to disclose assets that were associated with his law firm's pension plan in his bankruptcy petition, and that Respondent had outstanding federal and state tax liens totaling $35, 092.72.[1] In its Petition, the Commission alleged that Respondent violated Maryland Attorneys' Rules of Professional Conduct ("MARPC") §19-301.15(a) (safekeeping property), [2] §19-308.1(b) (bar admission and disciplinary matters), [3] and §19-308.4(a), (c), and (d) (misconduct).[4]

         On September 1, 2016, this Court referred the matter to the Honorable Steven G. Salant ("the hearing judge") in the Circuit Court for Montgomery County to conduct a hearing and issue findings of fact and conclusions of law pursuant to Maryland Rule 19-727(d).[5] On February 10, 2017, the hearing judge conducted an evidentiary hearing regarding Respondent's professional misconduct. Thereafter, the hearing judge issued Findings of Fact and Conclusions of Law, determining by clear and convincing evidence that Respondent violated MARPC §19-308.1(b) and MARPC §19-308.4(a), (c), and (d).On April 4, 2017, this Court entered a per curiam order disbarring Respondent, effective immediately. For the reasons stated below we hold that the hearing judge's conclusions regarding Respondent's violations of MARPC §19-308.1(b) and §19-308.4(a), (c), and (d) were supported by clear and convincing evidence and disbarment is the appropriate sanction.

         I. BACKGROUND

         a. The Hearing Judge's Findings of Fact

         In his Findings of Fact and Conclusions of Law, the hearing judge rendered the following factual findings:

During the time covered by the [Petition], Respondent maintained a general solo practice in Montgomery County.
On January 14, 2015, a check presented to Citibank account No. X3487 by the Respondent was dishonored for insufficient funds. On January 26, 2015, Bar Counsel received notice from Citibank that Respondent had over-drafted account No. X3487 in the amount of $103.83. Bar Counsel informed the Respondent through letter dated January 27, 2015 that he should provide information and documentation relating to the overdraft within ten days of receipt of the letter. The letter was sent to the address maintained with the Client Protection Fund.
Respondent wrote to Bar Counsel by letter dated March 12, 2015, stating the account was an operating account, not an attorney trust account, and the overdraft was due to a stop payment. Respondent provided a copy of the January 2015 statement for account Nos. X3487 and X1177. Account No. X1177 was Respondent's attorney trust account. The statement showed that Respondent disbursed a sum of $53, 484 to "6 Beachside LLC" ("LLC") from his attorney trust account on January 7, 2015. The LLC is a Florida limited liability company owned by the Respondent. The LLC owns real property in Palm Coast, and the resident agent for the LLC is Alla March, aka, Alla Marchenko, who is Respondent's girlfriend and paralegal.
Respondent replied to Bar Counsel's inquiries that the transactions to the LLC were for his law firm's pension plan. After further investigation, Bar Counsel discovered that Respondent filed a Petition for Chapter 7 Bankruptcy. Respondent failed to disclose all of his assets, as well as assets associated with his pension plan in the bankruptcy petition, which is signed under oath. Additionally, Bar Counsel learned that Respondent had outstanding state and federal tax liens in the amount of approximately $22, 948.
Respondent was instructed to provide information and documentation about the tax liens and related tax liability by July 10, 2015 through a letter from Bar Counsel dated June 22, 2015. However, Respondent failed to respond in any manner after receiving the letter. Bar Counsel sent another letter on July 13, 2015 requesting a reply no later than July 27, 2015 and Respondent again failed to answer after receiving the second letter. On August 4, 2015, Bar Counsel sent a third letter to Respondent, which he did not answer.
Bar Counsel received Respondent's bank records from Citibank through a subpoena issued on June 22, 2015. Bar Counsel requested information about eight transactions pertaining to Respondent's attorney trust account and relating to client ledgers for six named individuals through letter dated January 26, 2016. Respondent received the letter on about the same day and has failed to answer.

         b. The Hearing Judge's Conclusions of Law

         Based on the aforementioned findings of fact, the hearing judge concluded that Respondent had violated MARPC §19-308.1(b) (bar admission and disciplinary matters), and 8.4(a), (c), and (d) (misconduct).

         MARPC §19-308.1(b)

MARPC §19-308.1(b) prohibits a lawyer from
[F]ail[ing] to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by Rule 19-301.6 (1.6).

         The hearing judge concluded that Respondent violated MARPC §19-308.1(b) by failing to respond to Bar Counsel's letters and requests for information dated June 22, 2015, July 13, 2015, August 4, 2015, and January 26, 2016.

         MARPC ...


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