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Attorney Grievance Commission of Maryland3/8/2001
Bell, C.J., Eldridge & Wilner, JJ., dissent
The Attorney Grievance Commission, acting through Bar Counsel, filed a petition for disciplinary action against Jack A. Bernstein (Respondent), alleging violations of the Maryland Rules of Professional Conduct and the Business Occupations and Professions Article. The Commission charged Respondent with violating Rules 1.5 (Fees), 1.15 (Safekeeping property), 8.1 (Bar admission and disciplinary matters), 8.4 (Misconduct), 16-604 (Trust account - Required deposits), 16-606 (Name and designation of account), 16-607 (Commingling of funds), and 16-609 (Prohibited transactions). The Commission further charged Respondent with violating § 10-306 (Misuse of trust money) of the Business Occupations and Professions Article. Pursuant to Maryland Rule 16- 709(b), we referred the charges to Judge Kathleen O'Ferrall Friedman of the Circuit Court for Baltimore City to conduct a hearing and make findings of fact and conclusions of law.
After conducting an evidentiary hearing, Judge Friedman concluded that Respondent had violated Rules 1.5, 1.15, 8.1(b), 8.4(c) and (d), 16-606, 16-607, 16-609, and § 10-306 of the Business Occupations and Professions Article, but that Respondent had not violated Rule 16-604. In this Court, Respondent excepted to Judge Friedman's conclusion that he had violated Rule 8.4. Bar Counsel took no exceptions to Judge Friedman's findings of fact or conclusions of law.
I.
Following an evidentiary hearing, Judge Friedman filed a memorandum detailing her findings of fact and conclusions of law. We set forth Judge Friedman's memorandum below.
"The Attorney Grievance Commission ("Petitioner") acting through Bar Counsel filed a Petition for Disciplinary Action against Jack A. Bernstein ("Respondent"), alleging misconduct relating to a checking account with Crestar Bank and the mishandling of client funds. The Court of Appeals referred this matter to this court for a fact finding hearing.
"The hearing began on July 28, 2000 and continued to September 5, 2000. Both Petitioner and Respondent filed proposed findings of fact and conclusions of law. Upon the evidence presented, the Court makes the following findings of fact and conclusions upon clear and convincing evidence.
Findings of Fact and Conclusions
"Respondent, Jack Bernstein, is 45 years old and has been engaged in the practice of law since being admitted to the Maryland Bar on November 15, 1978. During the time relevant to this matter, he maintained an office for the practice of law at 5 Light Street, Baltimore, Maryland until April 1999 when he relocated to his current address at 110 St. Paul Street, Baltimore, Maryland.
"Respondent graduated from the University of Maryland School of Law with a high grade point average. He passed the bar examination on his first attempt and during his undergraduate studies, he took and passed one introductory accounting course.
"Respondent opened a checking account with Crestar Bank titled "Maryland Legal Services, Jack A. Bernstein, Esq., IOLTA" ("the account"). On four separate occasions, the Petitioner received a notice of an overdraft from Crestar Bank as follows: September 11, 1997, September 15, 1997, January 29, 1998, and February 17, 1998. These notices brought about the investigation resulting in the Petition for Disciplinary Action.
"The overdrafts occurred as follows:
1. September 8, 1997, check number 811 in the amount of $90.00 to the order of the Circuit Court for Howard County.
2. September 9, 1997, check number 812 in the amount of $5.00 to the order of the Circuit Court for
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