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Attorney Grievance Commission v. Zuckerman4/13/2005
ourt has explained on several occasions that "an unintentional violation of [Rule 1.15] . . . is still a violation of the attorney's affirmative duties imposed by the rule." See Stolarz, 379 Md. at 399, 842 A.2d at 49; Attorney Grievance Comm'n v. Sheridan, 357 Md. 1, 20, 741 A.2d 1143, 1154 (1999) (quoting Glenn, 341 Md. at 472, 671 A.2d at 475); Attorney Grievance Comm'n v. Adams, 349 Md. 86, 96-97, 706 A.2d 1080, 1085 (1998).
2. MRPC 1.15(a), Maryland Rule 16-607, and Md. Code ยงยง 10-304 and 10-306 of the Business Occupations and Professions Article
The hearing judge found violations of MRPC 1.15(a) and Maryland Rule 16-607(b)(2) because Mr. Zuckerman failed to remove his earned fees promptly from the trust account, thereby commingling his client's funds with his own. MRPC 1.15 (a) states:
A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account maintained pursuant to Title 16, Chapter 600 of the Maryland Rules. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and of other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.
Rule 16-607(b)(2) states:
An attorney or law firm may deposit into an attorney trust account funds belonging in part to a client and in part presently or potentially to the attorney or law firm. The portion belonging to the attorney or law firm shall be withdrawn promptly when the attorney or law firm becomes entitled to the funds, but any portion disputed by the client shall remain in the account until the dispute is resolved.
On several occasions, Mr. Zuckerman deposited settlement money belonging to clients into his trust account but failed to promptly remove his fee from the trust account for years after it was earned. For example, Mr. Zuckerman received a $500.00 settlement check on May 3, 1999 and did not remove his fee until February 11, 2004. Likewise, in the year 2001, Mr. Zuckerman deposited money into his trust account from settlement checks, but did not take his fees until one year later. In failing to remove his earned fees promptly from the trust account, Mr. Zuckerman violated both Rule 1.15(a) that a client's property be kept separate from the lawyer's property and Section 16-607(b)(2) of the Business and Professions Article requiring an attorney promptly to withdraw fees once they are earned. See Attorney Grievance Comm'n v. Sliffman, 330 Md. 515, 526, 625 A.2d 314, 319 (1993) (holding that a failure to timely transfer earned fees from an attorney trust account involves an impermissible commingling of funds).
The hearing judge also found that Mr. Zuckerman violated Section 10-304 of the Business Occupations and Professions Article because he deposited advance fee payments from his clients into his operating account rather than his trust account, although the fees had not yet been earned. We have previously held that funds given to an attorney in anticipation of future services qualify as "trust money" under Section 10-301 of the Business Occupations and Professions Article, see Attorney Grievance Comm'n v. Blum, 373 Md. 275, 298, 818 A.2d 219, 233 (2003); McLaughlin, 372 Md. at 504, 813 A.2d at 1167, which is defined as "a deposit, payment or other money that a person entrusts to a lawyer to hold for the benefit of a client or a beneficial owner." According to Section 10-304 of the Business Occupations and Professions Article, an attorney "expeditiously shall deposit trust money into an attorney trust a
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