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Attorney Grievance Commission of Maryland v. Johnson

Court of Appeals of Maryland

January 22, 2019

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
JEROME P. JOHNSON

          Argued: November 2, 2018

          Circuit Court for Harford County Case No. 12-C-17-002930

          Barbera, C.J., Greene, McDonald, Watts, Hotten, Getty, * Adkins, Sally D., (Senior Judge, Specially Assigned) JJ.

          OPINION

          Hotten, J.

         On November 3, 2017, the Attorney Grievance Commission of Maryland, acting through Bar Counsel ("Petitioner"), filed a Petition for Disciplinary or Remedial Action against Jerome P. Johnson ("Respondent"). After Petitioner had made reasonable efforts to serve Respondent, Judge Paul W. Ishak of the Circuit Court for Harford County ("the hearing judge"), authorized substitute service upon the Client Protection Fund pursuant to Maryland Rule 19-723.

         Respondent failed to file an answer to the petition "within 15 days after a copy of the petition and order was mailed . . ." as required by Md. Rule 19-724(a)(2). On May 17, 2018, Petitioner filed a Request for Order of Default. See Md. Rule 19-724(c). On May 21, 2018, the hearing judge signed an Order of Default, which included notice that a hearing would be held on June 29, 2018 at 9:00 a.m.

         The clerk of the circuit court issued notice of the entry of default on May 22, 2018. Respondent did not move to vacate the order within 30 days after its entry. See Md. Rule 2-613(c) and (d). Respondent failed to appear in court on June 29, 2018, when the case was called for a hearing.

         At the June 29, 2018 hearing, Petitioner submitted an exhibit binder containing seventeen numbered exhibits that the court received in evidence. The hearing judge considered the exhibits and averments of the petition, recognizing the prior pronouncement of the Court of Appeals that "where an order of default has been entered in a [disciplinary] case and not vacated, the hearing judge may accept the averments in the Petition for Disciplinary or Remedial Action as admitted and is not obligated to conduct a hearing." Attorney Grievance Commission v. Johnson, 450 Md. 621, 642, 150 A.3d 338, 350-51 (2016).

         THE HEARING JUDGE'S FINDINGS OF FACT

         We summarize the hearing judge's findings of fact. Respondent was admitted to the Maryland Bar on June 23, 1998. Pursuant to an Opinion and Order filed December 14, 2016 in Misc. Docket AG No. 68, September Term, 2015, this Court suspended Respondent from the practice of law in Maryland for one year, effective thirty days from the date of the opinion. Attorney Grievance Commission v. Johnson, 450 Md. 621, 150 A.3d 338 (2016), reconsideration denied Jan. 19, 2017. Respondent's one-year suspension took effect January 13, 2017.[1]

         The misconduct charges outlined in the present matter involve events that preceded Respondent's suspension. During a period of approximately eight months prior to his suspension, while the disciplinary matter resulting in that suspension was pending, Respondent repeatedly ignored Petitioner's inquiries and lawful requests for information based on PNC Bank's reported overdraft in Respondent's attorney trust account, discussed in detail infra. When Petitioner's efforts to obtain a response from Respondent proved fruitless, Petitioner filed the additional disciplinary charges that are currently at issue. Petitioner's action was filed after Respondent was suspended from practicing law. As such, these particular allegations were not before us in crafting our sanction of suspension in the previous Johnson opinion.

         On or about April 21, 2016, Petitioner received a notice from PNC Bank, reporting an overdraft on Respondent's Attorney Trust Account (account number ending in 0313). The reporting form indicated that an item in the amount of $37.54 on February 22, 2016, caused an overdraft of $30.37.

         On April 28, 2016, Petitioner sent Respondent identical letters by both regular and certified mail to the address maintained by Respondent with the Client Protection Fund of the Bar of Maryland. Petitioner requested a written explanation for the overdraft, as well as account records specified in the letter. The envelope containing the certified letter was returned to Petitioner "unclaimed" by the post office after two notices were left at the P.O. Box maintained by Respondent.

         The letter sent by regular mail was not returned and presumably was delivered to Respondent's post office box. However, Respondent failed to respond to Petitioner's April 28, 2016 correspondence.

         On June 6, 2016, Charles E. Miller, IV, an investigator for Petitioner, spoke to Respondent and received verbal agreement that Respondent would provide a response by June 10, 2016. Respondent failed to respond by that date.

         On July 12, 2016, Mr. Miller sent Respondent a letter describing their previous communication and directing him to respond to Petitioner's overdraft inquiry by July 22, 2016. Respondent failed to respond by that date.

         On August 15, 2016, following further communication with Mr. Miller, Respondent faxed copies of his trust account bank statements for the months of February through May 2016, without any written explanation concerning the cause of the February 22, 2016 overdraft. Respondent failed to provide other account records previously requested in Petitioner's April 28, 2016 correspondence.

         On August 31, 2016, Petitioner wrote to Respondent and again requested an explanation for the overdraft, as well as trust account records that attorneys are required to maintain in accordance with the Maryland Rules. The letter requested a response by September 16, 2016.

         On September 16, 2016, Respondent emailed a request for a two-week extension in which he stated that the additional documents requested "will require more time [to] gather." By letter dated September 27, Petitioner acknowledged the extension request and confirmed that a response was due by September 30, 2016. Respondent failed to respond by September 30.

         On November 14, 2016, Petitioner received a copy of a letter from Respondent dated September 30, 2016, with an enclosure identified by Respondent as "my client chronological transaction record for my trust account which has been requested in your previous correspondence." (emphasis in original). The copy of the September 30, 2016 letter received by Petitioner on November 14, 2016, bore a handwritten post-it note on which Respondent wrote, in part, "Copy of original mailed 9-30-16."

         THE HEARING JUDGE'S CONCLUSIONS OF LAW

         Based on the aforementioned findings of fact, the hearing judge concluded that Respondent violated the Maryland Attorneys' Rules of Professional Conduct ("MARPC")[2]19-301.15(a) (Safekeeping Property), 19-407 (Attorney Trust Account Record-Keeping), 19-308.1(b) (Disciplinary Matters), and 19-308.4(a) and (d) (Misconduct). The following are summaries of the relevant MARPC and the hearing judge's reasoning for concluding Respondent violated each part.

         Rule 19-301.15 Safekeeping Property (1.15)

(a) An attorney shall hold property of clients or third persons that is in an attorney's possession in connection with a representation separate from the attorney's own property. Funds shall be kept in a separate account maintained pursuant to Title 19, Chapter 400 of the Maryland Rules, and records shall be created and maintained in accordance with the Rules in that Chapter. Other property shall be identified specifically as such and appropriately safeguarded, and records of its receipt and distribution shall be created and maintained. Complete records of the account funds and of other property shall be kept by the attorney and shall be preserved for a period of at least five years after the date the record was created.

(emphasis added). The hearing judge concluded that Respondent violated Rule 19-301.15(a) because he failed to create and maintain records relating to the funds in his attorney trust account. The hearing judge found that this conclusion was supported by "Respondent's inability to produce such records when [Petitioner] requested him to do so on numerous occasions." According to the hearing judge, Respondent should have been able to produce ...


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