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Attorney Grievance Commission of Maryland3/8/2001
nse itself. See In re Addams, 579 A.2d 190, 194 (D.C. 1990). "Arguments for lenient discipline overlook this effect as well as the overriding importance of maintaining that confidence." Id. (quoting In re Wilson, 409 A.2d 1153, 1154 (N.J. 1979)). Accordingly, Respondent's name shall be stricken from the rolls of those authorized to practice law in this State.
IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COST AS TAXED BY THE CLERK OF THIS COURT, INCLUDING THE COSTS OF ALL TRANSCRIPTS, PURSUANT TO MARYLAND RULE 16-715(C), FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION OF MARYLAND AGAINST JACK A. BERNSTEIN.
Dissenting opinion follows:
Dissenting Opinion by Wilner, J.:
I concur in the overruling of respondent's exceptions to Judge Friedman's conclusion that respondent violated Rule 8.4. With respect, I do most strenuously dissent, however, from the sanction of disbarrment imposed by the Court. I agree that respondent's conduct was not only inappropriate but seriously so. He co-mingled funds and did not keep proper records and, as a result, allowed four overdrafts to occur in what should have been a trust account for client funds. He was also less than candid and forthcoming in response to Bar Counsel's legitimate requests for information and documentation.
All of that conduct was both wrong and inexcusable. I do not believe, however, that it amounted to the kind of willful misappropriation of client funds or willful defiance of Bar Counsel's requests - Attorney Griev. Comm'n v. White, 328 Md. 412, 614 A.2d 955 (1992); Attorney Griev. Comm'n v. Ezrin, 312 Md. 603, 541 A.2d 966 (1988); Bar Ass'n v. Marshall, 269 Md. 510, 307 A.2d 677 (1973); and Attorney Griev. Comm'n v. Owrutsky, 322 Md. 334, 587 A.2d 511 (1991).
The co-mingling of client and attorney funds always creates the potential for misappropriation, even when there is no intent to misappropriate. A misappropriation necessarily occurs whenever the attorney withdraws funds from a co-mingled account for his or her own purpose and, as a result, leaves the account insufficient to cover all client funds, and such a misappropriation is never innocent. It is not necessarily willful, however, or for the conscious purpose of unlawfully taking funds held in trust for another.
In those situations where the misappropriation is willful and is consciously done for an unlawful purpose, disbarrment is almost always the appropriate response, for the attorney is then, in effect, stealing the client's money. That is essentially what occurred in the cases cited by the Court. That is not what happened here, however. Disbarrment in this setting is not warranted, but is merely punitive, which is not its purpose. Under all of the circumstances apparent here, I believe that an indefinite suspension would be satisfactory.
Chief Judge Bell and Judge Eldridge have authorized me to state that they join in the views expressed in this dissenting opinion.
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