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Attorney Grievance Commission v. Ellison2/4/2005
rse logic. In Stolarz, we stated, evaluating a claimed violation of MRPC 1.15(b), that " f the creditor's claim is a valid interest and the amount of that interest is undisputed, then the lawyer should disperse directly to the creditor from the settlement proceeds." Id. at 400, 842 A.2d at 49. Stolarz had signed an assignment to a client's lender in the amount of $300.00 and then, by innocent oversight, failed to pay the assignment when he received and disbursed the settlement proceeds. What we did not state in Stolarz, and what we can only conclude that Ellison appears to rely on, is the inverse-when there is a dispute as to the amount of the claim, the lawyer has no obligation either to pay the assignment or ascertain the correct amount due under the assignment. Such a reading of Stolarz as Ellison urges is irreconcilable with the directions of MRPC 1.15(b) that place an affirmative burden on the attorney both to notify the third party assignee upon receipt of burdened funds and deliver the proper amount due to the third party.
Lastly, as Bar Counsel correctly stated in its motion, records of an investigation by Bar Counsel are confidential generally. None of the recognized exceptions to this confidentiality are argued to be applicable here. Thus, any Bar Counsel investigation of attorneys initiated by complaints by Strulson ordinarily would not be discoverable under Rule 16-723 (b). Ellison's exception in this regard is overruled.
B.
We turn to review of the exceptions of Ellison and Bar Counsel, in turn, to Judge Geter's written findings and conclusions. "` e review the findings of the hearing judge to determine whether they are based on clear and convincing evidence, that the hearing court's findings of fact are prima facie correct and will not be disturbed unless they are shown to be clearly erroneous.'" Attorney Grievance Comm'n v. Culver, 371 Md. 265, 274, 808 A.2d 1251, 1256 (2002) (quoting Attorney Grievance Comm'n v. Barneys, 370 Md. 566, 577, 805 A.2d 1040, 1046 (2002) (citations omitted in original)). When the findings are not clearly erroneous, exceptions will be overruled. Attorney Grievance Comm'n v. Brown, 380 Md. 661, 669, 846 A.2d 428, 432-33 (2004) (citing Attorney Grievance Comm'n v. McCoy, 369 Md. 226, 234-35, 798 A.2d 1132, 1137 (2002)). "Our review of the hearing judge's conclusions of law is de novo." Stolarz, 379 Md. at 397, 842 A.2d at 47 (citing Attorney Grievance Comm'n v. McLaughlin, 372 Md. 467, 493, 813 A.2d 1145, 1160 (2002); Attorney Grievance Comm'n v. Dunietz, 368 Md. 419, 428, 795 A.2d 706, 711 (2002)).
Ellison excepts to the supporting findings and conclusion that a violation of MRPC 1.5(c) occurred. He maintains that the written contingency fee retainer agreement signed by Moody with the Firm satisfied his obligation under MRPC 1.5(c). Furthermore, he asserts that an itemized settlement statement was unnecessary when he disbursed the settlement proceeds because Ellison believed there was no third party assignee to pay, notwithstanding the Assignment to Strulson.
Judge Geter found, contrary to Ellison's contentions, that Moody retained the Firm with regard to his personal injury claim and then terminated that representation with his 6 November 2002 letter. The now-invalid contingency fee arrangement with the Firm did not meet the requirement for a written fee arrangement between Ellison, acting outside the Firm, and Moody. Although Judge Geter credited Ellison with having an oral arrangement with Moody for a contingency fee, her findings that there was neither a written contingency fee agreement nor a written settlement statement are not clearly erroneous. This exception is overruled.
Ellison excepts to t
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