Monday, March 19, 2007

Attorney Grievance Commission v. McCulloch (Ct. of Appeals)

Filed March 19, 2007. Opinion by Chief Judge Robert M. Bell.

This case arose out of the representation by McCulloch of a client in a pending divorce action, for which McCulloch asked and received a retainer of $2,500. The retainer, including the unearned portion thereof, was deposited by McCulloch into her operating account rather than an escrow account.

Beginning about two weeks thereafter, the client began a series of e-mail requests to McCulloch, urging her to "move forward" on the case, to which she did not respond until about a month later, stating that the documents "were in progress". By e-mail about three weeks later, the client "discharged" McCulloch, and asked for a complete refund within a week. McCulloch responded the same day, with a copy of the letter and pleadings she had prepared, and a bill showing a credit due of $1,474, but no check. Two days later, McCulloch e-mailed the client, urging him to reconsider his decision to discharge her. Other than a few inconclusive e-mails, there was no further communication from McCulloch about the case for almost three months.

The client filed a complaint with the Attorney Grievance Commission ("AGC"), and AGC forwarded a copy of the complaint on to McCulloch, requesting a response from her within 15 days, She did not respond to that or to two subsequent letters until more than four months later, by which time the client had written directly to McCulloch, seeking a refund of the $1,474 he had been advised was due. In the meantime, AGC had written again, this time seeking copies of her trust account and client cards. With her response, McCulloch included an amended bill, with a revised credit due of $880, which she had refunded to the client "directly from her trust account" after she had received a settlement on an unrelated matter in the amount of $960. Her operating account had had a negative balance during the time the refund was due to the client.

Referred for a hearing, the hearing judge found, by clear and convincing evidence, the above facts, and violations of Rules 1.4(a)(3), 1.15(a), 1.16(d), 8.4(b), (c) and (d) of the Rules of Professional Conduct, Rule 16-604 and Sections 10-304 and 10-306 of the Business Occupations and Professions Article, but rejected the argument that McCulloch had committed theft.

Neither party excepted to the hearing judge's findings, but AGC did file exception to the recommended sanction, requesting disbarment rather than indefinite suspension. It relied upon the Vanderlinde, Blum, Duvall and Roberts cases for the proposition that misappropriation of funds by an attorney will result in the disbarment of an attorney in the absence of compelling extenuating circumstances justifying a lesser sanction, and that no such circumstances are present here.

The court disagreed, noting that the circumstances in this case were much less egregious than in the other cases, that McCulloch had admitted to her wrong conduct without making excuses, had expressed remorse and that she expected consequences from that conduct, only requesting something short of disbarment. The court also noted that the finding below on the theft charge was at best ambiguous on the issue of the conduct being dishonest and deceitful, and was inclined not to impose disbarment on "such a finding". The court further noted that McCulloch had no prior grievance history, and from McCulloch's remorse the court noted that it could infer that the conduct was less likely to recur. Given that the purpose of attorney discipline was to protect the public and not to punish the erring attorney, the court was satisfied the appropriate sanction was to suspend McCulloch indefinitely, rather than disbarment.

The opinion is available in PDF format.

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