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Attorney Grievance Commission v. Zuckerman4/13/2005
partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer." Rule 5.3(b) provides that "a lawyer having direct supervisory authority over the non-lawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer."
"The evidence presented shows that respondent's conduct violated both 5.3(a) and (b). Respondent did not have in place reasonable measures to ensure that his trust account had on deposit all of the funds for clients for whom he was holding money. While respondent gave one of his employees, Stacy Kohler, the task of balancing the checkbook for May 2002, he made no effort to ensure that she accomplished her task. Had the employee reported to respondent after having balanced the checkbook as requested, the theft of Ms. Becker would not have occurred for another month. Further, the act of giving a new employee with no history of reliability was, by itself, a failure to make reasonable efforts to ensure that the firm had in effect measures giving reasonable assurance that the conduct would be compatible with the professional obligations of the lawyer.
"It is also directly inferable from the fact that there was a negative balance in the trust account that the employee Kohler, given the task of balancing the checkbook, was not properly instructed on how to do so. As will be discussed below, funds were regularly advanced to clients and, in one instance, on May 16, 2000, the trust account had a negative balance of which respondent was never made aware. Therefore it is apparent that respondent did not instruct his employees of the proper management of the trust account and inform himself of the status of his employees' efforts to monitor the funds in the account. Had he done so, Ms. Becker's theft would have been discovered on or about June 15, 2002 instead of July 15, 2002, when respondent received the anonymous phone call.
II. Rule 1.15 (a) and Md. Bus. Occ. & Prof. Code Ann. ยง 10-306 (Safekeeping Property and Misuse of Trust Money)
A. Findings of Fact
"Ms. Becker's theft prompted the respondent to direct another employee, Rhonda Elkins, to review his records. Since then, Ms. Elkins has spent at least two days per work week on tasks connected with the instant case. The subsequent investigation revealed that between October 2002 and August 2004, the respondent had sixty-two (62) clients that had negative balances at some point or another. A subsequent investigation by John DeBone, a paralegal for the Attorney Grievance Commission, who examined respondent's trust account statements, deposit slips, and deposited items, shows that a total of 109 client's of the respondent had negative balances between 1998 and 2002.
"The analysis also showed that Respondent advanced a total of $311,898.11 to his personal injury clients with checks drawn on his trust account before the funds belonging to those clients were deposited in his trust account. On March 16, 2000, respondent's trust account had a negative balance of $363.13. Mr. DeBone testified that after March 16, 2000, respondent disbursed $21,997.96 on behalf of thirty-four (34) clients, whose funds were supposed to have been on deposit in respondent's trust account at the time the account had a negative balance. Respondent spent the funds belonging to these clients on other matters and did not preserve the funds for his clients.
"In addition, Respondent charged a duplicate fee in connection with the representation of Linwood Smith. On April 23, 1999, responde
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