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IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG No. 67 September Term, 2007

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. BRIAN GRAYSON WEST

Bell, C.J. Harrell Battaglia Greene Murphy Adkins Barbera JJ.

Opinion by Bell, C.J.

Filed: October 6, 2009

The Attorney Grievance Commission of Maryland, the petitioner, by Bar Counsel, acting pursuant to Maryland Rule 16-751,1 filed a Petition For Disciplinary or Remedial Action2 against Brian Grayson West, the respondent. The petition charged that the

respondent violated Rules 1.8, Conflict of Interest: Current Clients: Specific Rules,3 1.15, Safekeeping property,4 and 8.4, Misconduct,5of the Maryland Rules of Professional Maryland Rule 16-751, as relevant, provides: "(a) Commencement of disciplinary or remedial action. (1) Upon approval of Commission. Upon approval or direction of the Commission, Bar Counsel shall file a Petition for Disciplinary or Remedial Action in the Court of Appeals." That petition was amended, by Amended Petition For Disciplinary Or Remedial Action, to clarify that it was the principals of the respondent's law firm, Koehler & West, Chartered, rather than the firm itself, that were involved in the events leading up to the disciplinary charges at issues and to identify more fully the transactions out of which the charges arose and the Rules that were alleged to have been violated. With regard to the latter, the Amended Petition mistakenly referred to the Conflict of Interest Rule as Rule 8.1, rather than, as it is, Rule 1.8. As amended, effective July 1, 2005, Rule 1.8, as relevant, provides: "(a) A lawyer shall not enter into a business transaction with a client unless: "(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client; "(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and "(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction." Rule 1.15 provides: "(a) 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
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Conduct, as adopted by Maryland Rule 16-812, Maryland Rules 16-6076 and 16-6097 and
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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. "(b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property. "(c) When in the course of representation a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interests. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved." Rule 8.4, as relevant, provides: "It is professional misconduct for a lawyer to: * * * * "(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; "(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; "(d) engage in conduct that is prejudicial to the administration of justice." * * * * Maryland Rule 16-607 prohibits the commingling of funds. It provides: "a. General prohibition. An attorney or law firm may deposit in an attorney trust account only those funds required to be deposited in that account by Rule 16-604 or permitted to be so deposited by section b. of this Rule. "b. Exceptions. 1. An attorney or law firm shall either (A) deposit into an attorney trust account funds to pay any fees, service charges, or minimum balance required by the financial institution to open or maintain the account, including those fees that cannot be charged against interest due to the
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Maryland Legal Services Corporation Fund pursuant to Rule 16-610 b 1 (D), or (B) enter into an agreement with the financial institution to have any fees or charges deducted from an operating account maintained by the attorney or law firm. The attorney or law firm may deposit into an attorney trust account any funds expected to be advanced on behalf of a client and expected to be reimbursed to the attorney by the client. "2. 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. "3. Funds of a client or beneficial owner may be pooled and commingled in an attorney trust account with the funds held for other clients or beneficial owners." Addressing Prohibited Transactions, Maryland Rule 16-609, at the time of the alleged misconduct, provided: "An attorney or law firm may not borrow or pledge any funds required by these Rules to be deposited in an attorney trust account, obtain any remuneration from any financial institution for depositing any funds in the account, or use any funds for any unauthorized purpose. An instrument drawn on an attorney trust account may not be drawn payable to cash or to bearer." The Rule was amended, effective January 1, 2008. It now reads: "a. Generally. An attorney or law firm may not borrow or pledge any funds required by the Rules in this Chapter to be deposited in an attorney trust account, obtain any remuneration from the financial institution for depositing any funds in the account, or use any funds for any unauthorized purpose. "b. No cash disbursements. An instrument drawn on an attorney trust account may not be drawn payable to cash or to bearer, and no cash withdrawal may be made from an automated teller machine or by any other method. All disbursements from an attorney trust account shall be made by check or electronic transfer. "c. Negative balance prohibited. No funds from an attorney trust account
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Maryland Code (1989, 2004 Repl. Vol.)

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