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Attorney Grievance Commission v. Zuckerman4/13/2005
that Mr. Zuckerman "advanced" the money to those clients whose funds were not on deposit is supported by clear and convincing evidence because the clients' funds were only available from deposited funds of other clients, so that the funds paid were "on credit" from the funds of others or "advances." See Webster's New College Dictionary 17 (1999) (defining "advances" as " he supplying of funds or goods on credit"). Thus, we overrule both exceptions.
Exception 5: Respondent excepts to the following findings of fact by the hearing judge: "On March 16, 2000, [Mr. Zuckerman's] trust account had a negative balance of `$363.13.' The hearing judge then refers to testimony of Mr. Debone, [AGC's investigator], as to the subsequent transactions involving the trust account and concludes that . . . `[Mr. Zuckerman] spent funds belonging to these clients on other matters and did not preserve the funds for his clients.'"
As to the factual finding that the trust account had a negative balance, Mr. Zuckerman argues that the Petitioner initially alleged that the negative balance occurred on May 16, 2000, instead of March 16, 2000, which "misled or at least misdirected in preparation of his defense, because he had a ready response with respect to the date so long relied upon by Petitioner (on which no overdraft or other `negative balance' disclosed on the pertinent bank statement), only to have that comfortable cushion pulled out from under him by Petitioner's shifting its ground at or shortly before the hearing below."
This exception is disingenuous to the extent that Mr. Zuckerman in argument before this Court and the hearing court below, "acknowledge that a `-363.13' figure appear on the bank statement for the date to which Petitioner formally shifted at the hearing below . . . ." The record indicates that in its Petition for Disciplinary or Remedial Action, Bar Counsel alleged that a negative balance of Mr. Zuckerman's trust account occurred on May 16, 2000. At the hearing, Judge Prevas allowed Bar Counsel to amend its petition to state the correct date of March 16, 2000, over Mr. Zuckerman's objection. Regardless of the date, Mr. Zuckerman admits that there was a negative balance on his trust account, and bank statements were admitted in evidence as Exhibit 13 during the hearing establishing the date on which the negative balance occurred.
This exception is denied.
Mr. Zuckerman's last factual exception relates to Judge Prevas's "Conclusion" section addressing the mitigating factors in this case. To that end, Mr. Zuckerman argues that the hearing judge's findings of mitigating factors "militate strongly against any conclusion that clear and convincing evidence was produced to establish petitioner's allegations and charges."
We note that the facts tending to show mitigation are used to determine the severity of the sanction and not whether the evidence adduced has established a violation of the Rules by clear and convincing evidence. See Attorney Grievance Comm'n v. Glenn, 341 Md. 448, 484, 671 A.2d 463, 480 (1996). As a result, mitigation factors are not weighed in the balance of whether clear and convincing evidence was adduced to prove the allegations. This exception is denied.
B. Exceptions to Conclusions of Law
Neither Petitioner nor Respondent takes any specific exception to the Conclusions of Law rendered by Judge Prevas; however, Respondent asks this Court to find that he did not violate the Rules on the basis of his Exceptions to the Findings of Fact. Because we already have denied his exceptions, we need not address this issue further.
Judge Prevas found violations of MRPC 1.1, 1.3, 1.4, 1.15(a)
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