holding that Respondent violated MRPC 8.4 by misrepresenting to Bar Counsel the length of time he was using his escrow account like an operating account
How later courts described this case
- holding that Respondent violated MRPC 8.4 by misrepresenting to Bar Counsel the length of time he was using his escrow account like an operating account
- indefinite suspension, rather than disbarment, appropriate for misconduct including operation of law practice from single checkin^escrow account resulting in the commingling of lawyer’s personal funds with client and third-party funds; court found that lawyer lacked dishonest motive, repaid clients, and felt genuine remorse
- indefinitely suspending an attorney who negligently misappropriated client funds and then lied to Bar Counsel about the extent to which he commingled funds in his personal and escrow account
- distinguishing between intentional and negligent misrepresentations made to Bar Counsel during a disciplinary action
Written by the judges who cited it.
The opinion
Dissenting Opinion by
HARRELL, Judge,
which BATTAGLIA and BARBERA, JJ, join.
I dissent from the sanction of indefinite suspension. I would disbar McLaughlin. 1
As regards the Fitzgerald complaint, McLaughlin was found by Judge Rattal apparently to have mis-appropriated intentionally trust monies. He found that McLaughlin violated MRPC 1.15 (Safekeeping Property), Maryland Code (1989, 2004 RepLVol.), Business Occupations and Professions Article, § 10-306 (Misuse of Trust Money), and Md. Rule 16-609 *330 (Prohibited Transactions) by (a) making loans from funds in his trust account that belonged to other clients; (b) without the consent of the other clients; and (c) without maintaining complete accounting records of the funds in his trust account. In his analysis of whether violations occurred, Judge Rattal neither found nor concluded that the violations occurred as the consequence of merely negligent conduct. 2 , 3
Compounding the enduring misappropriation scheme presented in this record (taking into account the so-called negligent misappropriation portion reflected in the hearing judge’s separate analysis of Bar Counsel’s overdraft complaint) is McLaughlin’s intentionally “false and misleading” “misrepresentations” to Bar Counsel. 4 Considered together, we are confronted with intentional misappropriation, negligent misappropriation, obvious conflict of interest, and intentional misrepresentations to Bar Counsel in the course of an investigation. This array, I think, cuts to the core of what we should expect minimally from a Maryland lawyer. “Candor and truthfulness are two of the most important moral character traits of a lawyer.” Attorney Grievance Commission v. Myers, 333 Md. 440, 449 , 635 A.2d 1315, 1319 (1994). Even *331 where no client suffers actual financial loss, “misappropriation is a most egregious violation ... because ... [t]he rule is concerned with the risk of loss, not only the actual loss.” Attorney Grievance Commission v. Zdravkovich, 381 Md. 680, 704 , 852 A.2d 82, 96 (2004), quoting Attorney Grievance Commission v. Glenn, 341 Md. 448, 489 , 671 A.2d 463, 483 (1996).
I would disbar.
Judges BATTAGLIA and BARBERA join this dissent.
. It is probably of no great moment to McLaughlin, as a practical matter, whether we disbar or suspend him indefinitely. He claims to have retired entirely from the practice of law. Nonetheless, it is the precedential impact of the Majority's opinion that moves me to express a dissent.
. Judge Rattal’s general findings in mitigation do not render unintentional or negligent the misconduct regarding the Fitzgerald complaint. The absence of “selfish or dishonest motives" generally, as found there by the hearing judge, may influence the sanction, but have no bearing on whether the violative conduct was unintentional or negligent in the first instance.
. In contradistinction, when addressing Bar Counsel's separate overdraft complaint, the hearing judge pointedly proclaimed that the misconduct of commingling and expenditures there reflected McLaughlin "negligently misappropriating] funds of clients and their third parties.” Because the hearing judge made no such qualified finding or conclusion that I could find with regard to the Fitzgerald complaint, I am unable to infer, as perhaps the Majority opinion does, that that conduct represented a negligent misappropriation.
. Again, finding generally as a mitigator that McLaughlin "did not act with dishonest or selfish motives” does not translate inexorably to his conduct being less than intentional (except perhaps as to the expressly found "negligent misappropriations” regarding the overdraft complaint).