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Attorney Grievance Commission v. Ellison2/4/2005
he findings and conclusions as to the violation of Rule 16-606, for not properly designating his attorney trust account; Rule 16-609, for disbursing unauthorized funds to himself and Moody before satisfying the Assignment; and MRPC 1.15(a), for not complying with Title 16, Chapter 600 of the Maryland Rules. The hearing judge observed that Ellison's incorrectly designated account checks were sufficient to violate both Rule 16-606 and MRPC 1.15(a). We overrule these exceptions.
Rule 16-606 is quite clear; it requires that all attorney trust accounts be designated in one of three manners. Ellison did not comply with this Rule, whether by ignorance or willful intent. Attorney Grievance Comm'n v. Blum, 373 Md. 275, 300, 818 A.2d 219, 234 (2003) ("the hearing judge was correct when he concluded that Blum violated Maryland Rule 16-606 . . . when he named his attorney trust account `Bruce David Blum Law Firm "IOLTA"'"); see Attorney Grievance Comm'n v. Bernstein, 363 Md. 208, 228, 768 A.2d 607, 618 (2001) ("every attorney is deemed to know the Rules of Professional Conduct and is charged with the knowledge of how to operate and maintain a trust account").
The hearing judge correctly concluded that Rule 16-609 was violated. The Assignment between the Firm (by Ellison) and Moody on one hand and Strulson on the other was valid even after the Firm no longer represented Moody. The Assignment, by its terms, applied to any referral of Moody's claim to a lawyer inside or outside the Firm-and certainly purports to apply to Ellison's continued representation of Moody. The validity of this specific clause was not contested before Judge Geter. Although Ellison contested the validity of the Assignment before the AGC, he conceded before us that he no longer maintained any contention regarding the validity of the Assignment. Thus, Judge Geter's factual findings were not clearly erroneous; nor was her finding incorrect that the distributions to Moody and Ellison were unauthorized while the Assignment remained in force.
Ellison further argues that the violation of MRPC 1.15(a) is duplicative of the charge of violating Rule 16-606, but offers no other explanation for why this result is incorrect. The gravamen of his exception is misplaced; it is not outside the purview of this Court to draft overlapping rules, a narrow one for managing attorney client trust fund accounts and a broader one to set a minimum standard of professional conduct in dealing with attorney/client trust funds. As such, a set of facts that constitutes a violation of one may violate also the other without there necessarily arising an unfairly duplicative set of sanctions. His exception to supposedly duplicative violations is overruled. We shall consider later this exception, however, with regard to the proper sanction that may be imposed here.
Ellison's exception to the recommendation of a violation of MRPC 1.15(b) also is misfounded and consequently overruled. Although he claims that Strulson had knowledge from GEICO of the personal injury claim settlement as early as November and thus Ellison had no need to inform Strulson, his assertion of when Strulson gained that knowledge is irrelevant. MRPC 1.15(b) places an affirmative burden on the attorney to contact the third party assignee and deliver the appropriate funds to that third party. See Attorney Grievance Comm'n v. Sheridan, 357 Md. 1, 21-22, 741 A.2d 1143, 1154 (1999) (quoting Roberts v. Total Health Care, Inc., 349 Md. 499, 519, 709 A.2d 142, 151-52 (1998)). It was not clearly erroneous for Judge Geter to conclude that Ellison made no effort to contact Strulson after he received the settlement funds (in fact, Ellison made substantial efforts to avoid such contact).
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