Attorney Grievance Commission of v. Post6/9/1998
MISC. DOCKET AG
Raker, J. concurs
The Attorney Grievance Commission of Maryland (the "Commission"), by Bar Counsel, filed a Petition for Disciplinary Action against Alan Franklyn Post (the "Respondent"). On the complaint of Robin Aro, the petition alleged that, by failing timely to file withholding income tax returns, to remit the taxes withheld, and to hold the withheld taxes in trust, the respondent violated Rule 8.4 of the Maryland Lawyers' Rules of Professional Conduct. The Petition was referred, pursuant to Maryland Rule 16-711(a), to the Hon. James C. Chapin, of the Circuit Court for Montgomery County, for hearing and to make finding of fact and conclusions of law.
A hearing was conducted on the petition. The parties, having jointly stipulated to fifty- six matters of fact, which the court accepted, testimony having been taken, and other evidence having been considered, the court, as required, determined the facts, stating that they were supported by clear and convincing evidence.
The respondent, admitted to the Bar of the State of Maryland in 1972, has, since 1986, been engaged in the private practice of law, as a solo practitioner, specializing in personal injury cases on behalf of plaintiffs. He also is admitted to the bar of the District of Columbia. Until 1996, when it was declared bankrupt, the respondent's practice was known as Alan. F. Post, Chartered. Because he was allocated a portion of the debt of the previous firm with which he had been associated when it dissolved, the respondent started Alan F. Post, Chartered, his first solo practice, in debt, and with virtually no cash reserves. In March, 1996, the respondent formed Alan F. Post & Associates, P.A. He was its sole shareholder, as was also the case with the prior professional corporation he formed. Moreover, while operating each of these corporations, he employed at least one employee and sometimes more.
Because the records of the Maryland Comptroller of the Treasury (the "Comptroller") do not reflect the activity on respondent's withholding tax account before 1993, the hearing court's findings related to that period and after. The records do reflect that the respondent made payments in March, 1993, which were applied to taxes and interest outstanding from 1990. In addition, the stipulation reveals that, although at all relevant times, the firms maintained separate employee payroll accounts as required under Section 10-906 of the Tax-General Article, with few exceptions, the respondent filed his withholding tax returns late and usually did not timely remit the taxes withheld.
The respondent and the comptroller's office agreed to a payment plan in February of 1993, when the firm's outstanding State withholding tax liability was $12,406.32. As the stipulation attests, from the inception of the plan, the respondent's payments were late. Furthermore, the respondent only made two monthly payments, prompting the Comptroller to attach his bank account. On October 5, 1993, the respondent made his next voluntary payment of 1993. At that time, he also filed his June, 1993 return, due July 31, 1993. The respondent continued to file withholding tax returns, however, but they too were frequently filed late and, of course, filed without the withheld taxes.
There was a similar pattern in 1994. A new payment plan was established on January 13, 1994; however, as was true the previous year, the two payments the respondent made were late. While everything was in order with respect to the January, 1994 return, it was both on time and remitted the taxes withheld, the February, 1994 return was filed late, on March 25, 1994, without the withholding taxes. The respond
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