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Law Digest — Maryland Court of Appeals — Dec. 27, 2018

Court of Appeals

Administrative Law, Implied consent law: Under the Maryland statute commonly known as the implied consent, administrative per se law, Md. Code Ann., Transp. (1977, 2012 Repl. Vol., 2018 Supp.) §16-205.1, which provides for the automatic suspension of the licenses of drivers who refuse to submit to testing for alcohol and drugs, a police officer was simply required to request that a driver suspected of driving under the influence take an alcohol concentration test, and was not required to specifically request that the driver take a blood test or a breath test. Motor Vehicle Administration v. Nelson, No. 26, Sept. Term, 2016. 

Criminal Procedure, Closing argument: A trial judge who considered the specific circumstances of the case and weighed the relevant factors at issue, including concerns regarding waste of time and juror confusion, did not abuse her discretion by precluding a criminal defendant from playing video excerpts of trial testimony during closing arguments. Cagle v. State, No. 15, Sept. Term, 2018.

Professional Responsibility, Suspension: Given the presence of several mitigating factors, 60-day suspension from the practice of law, with reinstatement subject to appropriate documentation that the subject attorney had completed a course for solo practitioners, with an emphasis on the responsible maintenance of an attorney trust account, was the appropriate sanction for an attorney who violated multiple Maryland Attorneys’ Rules of Professional Conduct including rules regarding diligence, competency, communication, and trust accounts, stemming from her representation of a former client in a family law matter and her failure to adequately safeguard client funds. Attorney Grievance Commission of Maryland v. Thompson, Misc. Docket AG No. 53, Sept. Term, 2017.

Administrative Law

Implied consent law

BOTTOM LINE: Under the Maryland statute commonly known as the implied consent, administrative per se law, Md. Code Ann., Transp. (1977, 2012 Repl. Vol., 2018 Supp.) §16-205.1, which provides for the automatic suspension of the licenses of drivers who refuse to submit to testing for alcohol and drugs, a police officer was simply required to request that a driver suspected of driving under the influence take an alcohol concentration test, and was not required to specifically request that the driver take a blood test or a breath test.

CASE: Motor Vehicle Administration v. Nelson, No. 26, Sept. Term, 2016 (filed Dec. 13, 2018) (Judges Barbera, Greene, McDonald, WATTS, Hotten, Getty & Adkins (Senior Judge, Specially Assigned)).

FACTS: Md. Code Ann., Transp. (1977, 2012 Repl. Vol., 2018 Supp.) (“TR”) §16-205.1, commonly known as the implied consent, administrative per se law, provides for the automatic suspension of the licenses of drivers who refuse to submit to testing for alcohol and drugs. Despite the statute’s recognition of a driver’s implied consent to take a test, the driver may refuse to take a test unless the driver has been in an accident that results in the death of, or a life-threatening injury to, another person. TR §16-205.1 is called the “administrative per se law” because the possible administrative sanctions (e.g., suspension of a driver’s license) automatically result from a driver’s refusal to take, or a driver’s failure of, a test.

After James Nelson crashed a vehicle that he had been driving, Corporal Brandon Foor of the St. Mary’s County Sheriff’s Office approached the vehicle. Nelson, who was conscious but unable to move, stated that he was drunk. Corporal Foor smelled a strong odor of alcohol on Nelson’s breath and requested that Nelson take an alcohol concentration test. Nelson refused. On behalf of the Motor Vehicle Administration, Corporal Foor confiscated Nelson’s commercial driver’s license.

Nelson requested an administrative hearing, at which his counsel moved that the administrative law judge take no action against Nelson. The ALJ denied the motion to take no action, and determined that Nelson had violated TR §16-205.1. The ALJ ordered that Nelson’s commercial driver’s license be disqualified for 12 months, and that, instead of having his driver’s license suspended for 270 days, Nelson would participate in the Ignition Interlock System Program.

Nelson petitioned for judicial review in the circuit court. Following a hearing in April 2018, the circuit court issued an order reversing the ALJ’s decision and remanding with instructions to take no action with regard to Nelson’s commercial driver’s license. The circuit court acknowledged that substantial evidence supported the ALJ’s determination that Corporal Foor did not need to direct medical personnel to involuntarily take blood from Nelson, but reasoned that Md. Code Ann., Cts. & Jud. Proc. (1974, 2013 Repl. Vol.) (“CJ”) §10-305(a) required Corporal Foor to specifically request that Nelson take a blood test. The circuit court concluded that, because there was no evidence that Corporal Foor requested that Nelson take a blood test, the ALJ erred in failing to apply CJ §10-305(a) in determining that Nelson violated TR §16-205.1.

The MVA appealed to the Court of Appeals, which reversed the judgment of the circuit court and remanded the case to that court with instructions to affirm the ALJ’s decision.

LAW: On appeal, the MVA contended that the circuit court erred in concluding that Corporal Foor was required to specifically request that Nelson take a blood test. The MVA argued that TR §16-205.1 requires simply that a police officer ask a detained driver to take an alcohol concentration test, and does not require the officer to advise whether the alcohol concentration test will be a breath test or a blood test, or to specifically request that a driver take a blood test. The MVA asserted that the type of alcohol concentration test that is administered depends on the detained driver’s location and condition, as well as the availability of test equipment. The MVA maintained that CJ §10-305(a) does not require an officer to specify the type of alcohol concentration test, as that is not up to the officer or the driver, but that, instead, CJ §10-305(a) requires an officer to conduct a breath test except under certain circumstances, such as when the driver is unconscious.

TR §16-205.1(b)(2)(ii) applies unless a person is involved in a motor vehicle accident that results in the death of, or a life threatening injury to, another person. Under the statute, if a police officer stops or detains any person who the police officer has reasonable grounds to believe is or has been driving or attempting to drive a motor vehicle while under the influence of alcohol, or while impaired by alcohol, and who is not unconscious or otherwise incapable of refusing to take a test, the police officer shall request that the person permit a test to be taken. Id. If the person refuses to take the test or takes a test which results in an alcohol concentration of 0.08 or more at the time of testing, the police officer shall, among other things, confiscate the person’s driver’s license. TR §16-205.1(b)(3)(i). The word “test” is defined in TR §16-205.1(a)(1)(iii) to mean: (1) a test of a person’s breath or of one specimen of a person’s blood to determine alcohol concentration; (2) a test or tests of one specimen of a person’s blood to determine the drug or controlled dangerous substance content of the person’s blood; or (3) both.

CJ §10-305(a) governs the type of alcohol concentration test that must be administered where a driver consents to take an alcohol concentration test. CJ §10-305(a)(1) states that the type of test administered to the defendant to determine alcohol concentration shall be the test of breath, except that the type of test administered shall be a test of blood if: (1) the defendant is unconscious or otherwise incapable of refusing to take a test to determine alcohol concentration; (2) injuries to the defendant require removal of the defendant to a medical facility; (3) the equipment for administering the test of breath is not available; or (4) the defendant is required to submit to a test of one specimen of blood under TR §16-205.1(c)(1)(ii). Under CJ §10-305(a)(2), the type of test administered shall be both a test of the person’s breath and a test of one specimen of the person’s blood if the defendant is required to submit to both a test of the person’s breath and a test of one specimen of the person’s blood under TR §16-205.1(c)(1)(iii).

In the present case, under the plain language of TR §16-205.1(b)(2)(ii), Corporal Foor was simply required to request that the driver, Nelson, who was detained on suspicion of driving or attempting to drive under the influence of or while impaired by alcohol take an alcohol concentration test. In other words, Corporal Foor was not required to specifically request that Nelson take a blood test or a breath test. As noted, the statute states unequivocally that an officer shall request that the person permit a test to be taken. TR §16-205.1(b)(2)(ii). In turn, TR §16-205.1(a)(1)(iii) defines the word “test” as a blood test, a breath test, or both. Nothing in TR §16-205.1 requires an officer to specify a type of alcohol concentration test when requesting such a test to be taken.

Neither does CJ §10-305(a) impose such a requirement. CJ §10-305(a) lists the circumstances under which an officer must administer a blood test, as opposed to a breath test.  For example, as discussed, under CJ §10-305(a)(1)(ii), where injuries to a driver require removal of the driver to a medical facility, and the driver consents to an alcohol concentration test, it must be a blood test. No provision in CJ §10-305(a) directs an officer to specifically request that a driver take a blood test.

In sum, neither TR §16-205.1 nor CJ §10-305 requires a police officer to specifically request that a driver take a blood test or a breath test. The circuit court erred in reasoning otherwise. Accordingly, the judgment of the circuit court was reversed and the case remanded to that court with instructions to affirm the decision of the administrative law judge.

COMMENTARY: This holding was warranted not only by the plain language of CJ §10-305(a), but also by the legislative history of the statute. Before 1983, the statutory predecessor to CJ §10-305(a) allowed drivers to choose between a blood test and a breath test. See 1983 Md. Laws 1033 (Pt. 2, Ch. 289, S.B. 513). The former statute was amended as a result of concern regarding the increasing number of drivers choosing blood tests over breath tests due to the difficulty of accomplishing the blood test in certain situations, the delay in processing caused by administering blood tests instead of breath tests, and the problems caused by the necessity to have medical personnel attend hearings where a blood test was used. See In Motor Vehicle Admin. v. Dove, 413 Md. 70 (2010).

In 1983, to address this concern, the General Assembly amended the statute to no longer allow drivers to choose between a blood test and a breath test. See 1983 Md. Laws 1033-34 (Pt. 2, Ch. 289, S.B. 513). Since 1983, CJ §10-305(a) and its predecessors have generally required a breath test where a driver consents to an alcohol concentration test, except in a limited number of circumstances in which a blood test is required. See id. The 1983 statutory amendment demonstrates that there is no longer a need for an officer to specifically request that a driver take a blood test or a breath test. Now that drivers no longer have the discretion to choose the type of test, it would be pointless for an officer to specify the type of test, as that determination is not up to the driver, but is made by CJ §10-305(a).

This conclusion also furthers the legislative purpose of TR §16-205.1, which is to reduce the incidences of drunk driving and to protect public safety by encouraging drivers to take alcohol concentration tests. Motor Vehicle Admin. v. Smith, 458 Md. 677, 690 (2018). If an officer were required to specify the type of alcohol concentration test to be taken, then, where an officer requested that a drunk driver take an alcohol concentration test without identifying the type of alcohol concentration test, the drunk driver could freely refuse and avoid a suspension of his or her driver’s license. To hold that, for an advisement to be valid, an officer must specify the type of alcohol concentration test would not be consistent with the purpose of TR §16-205.1 to encourage drivers to take alcohol concentration tests.

PRACTICE TIPS: When the facts of a case are undisputed, the task of a court reviewing the decision of an administrative law judge is simply to determine whether the ALJ’s decision was premised upon an erroneous conclusion of law. A court reviews with some deference an ALJ’s interpretation of a statute that the relevant administrative agency administers.

Criminal Procedure

Closing argument

BOTTOM LINE: A trial judge who considered the specific circumstances of the case and weighed the relevant factors at issue, including concerns regarding waste of time and juror confusion, did not abuse her discretion by precluding a criminal defendant from playing video excerpts of trial testimony during closing arguments.

CASE: Cagle v. State, No. 15, Sept. Term, 2018 (filed Dec. 13, 2018) (Judges Barbera, Greene, Adkins, McDonald, Watts, HOTTEN & Getty).

FACTS: On December 28, 2014, Baltimore City Police Department Officers Dancy Debrosse, Isiah Smith, Kevin Leary, and Wesley Cagle responded to a triggered security alarm at a convenience store in Baltimore, Maryland. Upon arrival, Officers Smith and Leary positioned themselves on either side of the entrance into the store, while Cagle remained in a side alley. The suspect, who was wearing a mask and was later identified as Michael Johansen, opened the convenience store door and advanced towards Officers Smith and Leary.

Johansen ignored Officer Leary’s numerous commands to show his hands and continued to walk towards the officers. As he approached, Johansen reached into his waistband and, according to Officer Smith, grabbed “something silver” that Officer Smith feared was a knife or gun. Officers Smith and Leary both fired at Johansen, striking him in several places and causing him to fall backwards into the doorway.

After hearing the gunshots, Cagle emerged from the side alley with his gun drawn. Officers Leary and Smith still had their weapons drawn and trained upon Johansen, who was lying in the doorway of the convenience store. Cagle approached Johansen, walking directly into the other officers’ line of fire and forcing them to lower their weapons. While Johansen was still lying on the ground, Cagle and Johansen had a brief exchange of words, and Cagle then fired once at Johansen.

Cagle was indicted on four counts: attempted murder in the first degree, attempted murder in the second degree, assault in the first degree, and use of a firearm in commission of a felony or crime of violence. At trial, the parties differed as to what was said between Cagle and Johansen and as to Cagle’s purpose in firing his weapon. Cagle testified that he repeatedly yelled, “Let me see your hands,” to Johansen as he approached. Cagle contended that Johansen had moved his hands in an upward motion, that he observed a shiny metal object in Johansen’s hands, and that he discharged his weapon at the threat.

Conversely, Johansen testified that when Cagle approached, Johansen asked, “What was that, like one of them bean bag guns?” and Cagle allegedly replied, “No, it was a .40 caliber, you piece of sh*t,” and then shot Johansen in the groin. Officers Leary and Smith testified that they were not able to hear the exchange between Cagle and Johansen, and did not have a clear view of Johansen while he was lying on the ground. However, Officer Leary told Internal Affairs that at the time Cagle shot Johansen, “the threat was over.”

During the trial, Cagle elicited testimony from Johansen, Officers Leary and Smith, and a firearms expert regarding the reasonableness of the amount of force Cagle used when he shot Johansen. Prior to closing arguments, defense counsel asked the court’s permission to use a PowerPoint during his closing argument that would contain video recorded excerpts of trial testimony, as well as a video recording of a pretrial statement made by Johansen that had been introduced into evidence. Cagle asserted that the outcome of the case was dependent on eyewitness testimony and the jury’s determinations of credibility of these witnesses. Cagle argued that playing the in-court testimony during closing argument would allow the jury to observe the witnesses’ demeanor and adequately judge the consistency of their statements.

After reviewing the PowerPoint, the trial judge advised counsel that she would allow counsel to include in the PowerPoint the recording of the pretrial statement that had been introduced into evidence, but not the video excerpts from trial testimony. The trial judge stated that it had been her “practice for 17 years” not to permit the replaying of trial court video testimony during closing argument and that the present case provided no exception. The trial judge went on to state that Cagle was still permitted to reference trial testimony, to summarize or restate it, to draw the jury’s attention to it, or to emphasize it verbally during his closing argument. The trial court also allowed Cagle to present the video recording of Johansen’s pretrial statement, already admitted into evidence, along with a surveillance video from the convenience store where the shooting took place.

The jury convicted Cagle of assault in the first degree and use of a firearm in commission of a felony or crime of violence. The trial court sentenced him to 12 years of incarceration on the assault conviction and five years of incarceration on the firearm conviction, to be served concurrently. Following the sentencing hearing, Cagle appealed to the Court of Special Appeals, challenging the trial court’s exclusion of the use of the video excerpts during closing argument. The Court of Special Appeals held that the trial court did not abuse its discretion by excluding the video excerpts because of the genuine concern of undue delay, waste of time, and juror confusion expressed by the trial judge.

Cagle then appealed to the Court of Appeals, which affirmed the judgment of the Court of Special Appeals.

LAW: Although a party generally holds great leeway when presenting their closing remarks, this leeway is not without limitation. A trial court has broad discretion when determining the scope of closing arguments. Ware v. State, 360 Md. 650, 682 (2000). Thus, the trial court was clearly vested with the discretion to control the scope of closing arguments. Cage argued, however, that the trial court erred in precluding him from using trial testimony video in closing argument. Specifically, Cagle contended that the trial court abused its discretion by applying a “hard-and-fast rule” as to the use of trial testimony in closing argument.

While it is true that attempting to resolve discretionary matters by the application of a uniform rule, without regard to the particulars of the individual case, can constitute an abuse of discretion, a trial court’s application of a “general rule” is not in and of itself a failure to exercise discretion, but, rather, one of the myriad ways in which discretion may be exercised. Holland v. State, 122 Md. App. 532, 547 (1998). When considering whether to permit the use of certain pieces of evidence and demonstrative aids during closing argument, a court must consider the particular circumstances of each case. 101 Geneva LLC v. Wynn, 435 Md. 233, 241 (2013); see also Gunning v. State, 347 Md. 332, 352 (1997). Here, contrary to Cagle’s assertions, the trial judge’s did not apply a “hard-and-fast rule” without flexibility or without consideration of the issues presented.

The trial judge did not reject Cagle’s request out of hand, but carefully reviewed the proffered PowerPoint and video excerpts and decided that it was not an occasion to deviate from her usual practice as to recorded testimony. The judge went on to reason that she did not want to give the jury the impression that they would sit for the rest of the week and replay the live court testimony of every witness, or that one witness’s testimony was more important than another. The trial court properly exercised its discretion by applying a general policy of not permitting in-court trial testimony to be played during closing argument, after articulating the court’s concerns surrounding the use of such video excerpts in light of the particular circumstances of the case. Gunning v. State, 347 Md. 332, 352 (1997).

There is no rule that requires – or forbids – the use of a PowerPoint with video excerpts of trial testimony in closing argument. The trial court’s stated concerns regarding waste of time and juror confusion were well within the bounds of sound discretion and reason to justify its exclusion. Cagle was still permitted to verbally reference, describe, and highlight the trial testimony and play videos of pretrial statements that had been admitted into evidence. For these reasons, the fact that the trial judge had a general policy of excluding video excerpts of trial testimony because it might give the jury the impression that they would engage in an endless replay of the whole trial, or that it would inappropriately emphasize a specific witness’s testimony, was not a failure to exercise discretion. See Holland, 122 Md. App. at 547.

Accordingly, the judgment of the Court of Special Appeals was affirmed.

COMMENTARY: In Green v. State, the Court of Special Appeals held that it was not an abuse of discretion for the trial court to allow the State to replay a recorded telephone conversation during closing argument. Green v. State, 231 Md. App. 53 (2016), rev’d on other grounds, 456 Md. 97 (2017). However, although Green articulates the proposition that admitting the recordings for closing arguments is not an abuse of discretion, it does not necessarily follow that excluding the use of the recordings for closing arguments is an abuse of discretion. Singleton v. State, 231 Ga. App. 694, 695 (1998). The trial court also has the discretion to prohibit the use of such exhibits during closing argument. Id. Thus, the abuse of discretion standard does not provide for one outcome to be right while all other outcomes are wrong. Instead, it provides that a trial court has broad discretion in determining the scope of closing arguments. Martin v. State, 364 Md. 692, 698 388 (2001).

PRACTICE TIPS: An abuse of discretion occurs only where no reasonable person would take the view adopted by the trial court or when the court acts without reference to any guiding principles. Thus, unless a trial court’s ruling is “well removed from any center mark imagined by the reviewing court and beyond the fringe of that that court deems minimally acceptable,” it will stand.

Professional Responsibility

Suspension

BOTTOM LINE: Given the presence of several mitigating factors, 60-day suspension from the practice of law, with reinstatement subject to appropriate documentation that the subject attorney had completed a course for solo practitioners, with an emphasis on the responsible maintenance of an attorney trust account, was the appropriate sanction for an attorney who violated multiple Maryland Attorneys’ Rules of Professional Conduct including rules regarding diligence, competency, communication, and trust accounts, stemming from her representation of a former client in a family law matter and her failure to adequately safeguard client funds.

CASE: Attorney Grievance Commission of Maryland v. Thompson, Misc. Docket AG No. 53, Sept. Term, 2017 (filed Dec. 14, 2018) (Judges Barbera, Greene, Adkins, Watts, HOTTEN & Getty.

FACTS: Yolanda Thompson was admitted to the Bar of the District of Columbia on February 6, 2012, and to the United States District Court for the District of Columbia on November 7, 2016. She was not a member of the Bar of Maryland. However, she maintained an office for the practice of law in Montgomery County, Maryland, and resided in Silver Spring, Maryland.

On August 10, 2016, Thompson caused an overdraft on her attorney trust account at TD Bank located in Silver Spring, Maryland, in the amount of $116. On October 3, 2016, Thompson caused another overdraft on her attorney trust account in the amount of $63. On November 23, 2016, the Attorney Grievance Commission of Maryland wrote to Thompson and requested that she provide copies of her client ledgers, deposit slips, cancelled checks, and monthly bank statements within ten days. Thompson did not respond to this request or to two subsequent requests by the Commission.

On April 26, 2017, having received no response to its inquiries, the Commission issued a subpoena directed to TD Bank for account records held in the name of the Law Office of Yolanda M. Thompson and Thompson for the period of May 1, 2016 through the date of the subpoena. On May 5, 2017, Jason Bogue, investigator for the Commission, traveled to Thompson’s home address. Thompson’s mother told him that Thompson was not home. Bogue left his business card with Thompson’s mother and asked her to ask Thompson to contact him. That same day, Thompson called Bogue and advised that she had closed her attorney trust account in October 2016. She also stated that she exclusively handled bankruptcy matters and, therefore, did not have use for an attorney trust account.

On December 20, 2017, the Attorney Grievance Commission of Maryland, acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action against Thompson. The alleged misconduct stemmed from Thompson’s representation of a former client, Norma Jean Bess. Specifically, Bar Counsel alleged that Thompson failed to represent Bess competently and diligently, failed to communicate with Bess regarding the status of her matter, failed to refund unearned fees in Bess’s matter, failed to safeguard client funds, abandoned Bess’s matter, practiced in a jurisdiction where she was not authorized to practice law, made a knowingly false statement of material fact, and failed to respond to lawful demands for information during the investigation by the Commission. Based on the misconduct, Bar Counsel alleged violations of Maryland Attorneys’ Rules of Professional Conduct (“MARPC”) 19-301.1 (Competence), 19-301.3 (Diligence), 19-301.4 (Communication), 19-301.5(a) (Fees), 19-301.15(a), (b), (c), and (d) (Safekeeping Property), 19-301.16(d) (Declining or Terminating Representation), 19-305.5(b) (Unauthorized Practice of Law), 19-308.1(a) and (b) (Disciplinary Matters), and 19-308.4(a), (c), and (d) (Misconduct).

The matter was transferred to a circuit court judge for a hearing to issue findings of fact and conclusions of law. Thompson failed to file a response to the Petition, and the circuit court subsequently entered an order of default and scheduled the matter for a hearing. Thompson did not move to vacate the order of default and failed to respond to the Commission’s discovery requests. Pursuant to Maryland Rule 2-424(b), the Commission’s Requests for Admission were deemed admitted. Thompson failed to appear for the scheduled hearing.

The hearing judge found that Thompson’s statement that she exclusively handled bankruptcy matters was knowingly and intentionally false. In fact, she had not represented clients in bankruptcy matters, though she had represented clients in two immigration matters with the United States Citizenship and Immigration Services. The hearing judge found that Thompson’s false statement to the Commission was material, as it was made in an effort to minimize the Commission’s concerns about the overdraft of Thompson’s attorney trust account and the unauthorized practice of law in Maryland.

The hearing judge found that Thompson failed to segregate the funds of clients and third persons in her possession from her own personal funds. The hearing judge also found that Thompson used the funds of clients and third persons for her own use and benefit, regularly and improperly withdrawing funds through cash disbursements and personal purchases. The hearing judge concluded that the evidence concerning Thompson’s representation of  Bess established violations of MARPC 19-301.1 (Competence), 19-301.3 (Diligence), 19-301.4 (Communication), 19-301.5(a) (Fees), 19-301.15(a), (b), (c), and (d) (Safekeeping Property), 19-301.16(d) (Declining or Terminating Representation), 19-305.5(b) (Unauthorized Practice of Law), 19-308.1(a) and (b) (Disciplinary Matters), and 19-308.4(a), (c), and (d) (Misconduct).

Finding that 60-day suspension was the appropriate sanction, the Court of Appeals entered an order suspending Thompson from the practice of law for 60 days, with reinstatement subject to appropriate documentation that Thompson had completed a course for solo practitioners, with an emphasis on the responsible maintenance of an attorney trust account.

LAW: Pursuant to Maryland Rule 19-308.5(a)(2), an attorney who is not admitted in Maryland is subject to the disciplinary authority of the Maryland Court of Appeals if the attorney, among other things, provides or offers to provide any legal services in Maryland, or holds himself out as practicing law in Maryland. Based on the facts found by the hearing judge, Thompson was subject to the disciplinary authority of the Court of Appeals under both of these prongs. Thus, although she was not barred in Maryland, the Court of Appeals had authority to impose disciplinary sanctions because Thompson held herself out as practicing law in Maryland.

Because Thompson did not appear at the hearing before the hearing judge and produced no evidence to substantiate her claims disputing the hearing judge’s findings of fact, the hearing judge’s factual findings were not clearly erroneous. By Thompson’s own admission, she mismanaged client funds in violation of Rule 19-301.15. She also did not return and unearned fee of $100 for the second of two letters she wrote for Bess, and she effectively abandoned Bess’s case. As such, Thompson violated Rules 19-301.1 (Competence), 19-301.3 (Diligence), 19-301.4 (Communication), 19-301.5 (Fees), and 19-301.16 (Terminating Representation).

The appropriate sanction for Thompson’s misconduct was 60-day suspension from the practice of law, with reinstatement subject to appropriate documentation providing that Thompson had completed a course emphasizing responsible maintenance of an attorney trust account, and an order suspending Thompson from the practice of law for 60 days was accordingly entered.

COMMENTARY: Although the hearing judge found that there existed a number of aggravating factors, the Court of Appeals found only aggravating factor, multiple violations of the MARPC. The Court of Appeals found that Thompson established by a preponderance of the evidence a number of mitigating factors, including absence of a prior disciplinary record, absence of a dishonest or selfish motive, and inexperience in the practice of law. Thompson admitted to mishandling client funds in violation of Rule 19-301.15 due to her inexperience. She also admitted to opening and maintaining her attorney trust account and her post office box in Maryland rather than the District of Columbia due to errors attributable to her lack of experience as an attorney.

Given Thompson’s own admission regarding mishandling of her attorney trust account, it was possible to fashion a sanction of a 60-day suspension with appropriate documentation providing that Thompson had completed a course emphasizing responsible maintenance of an attorney trust account. This sanction not only accounted for mitigating factors, but also addressed the Court’s concern regarding Thompson’s mismanagement of client funds. Because there was not clear and convincing evidence of a likelihood of repetition for Thompson’s other violations, this sanction would be sufficient to protect the public and the public’s confidence in the legal profession, and was commensurate with the gravity of the misconduct.

PRACTICE TIPS: Disbarment is ordinarily the sanction for intentional dishonest conduct by an attorney. Only in “compelling” extenuating circumstances will the court even consider imposing less than the most severe sanction of disbarment in cases of intentional dishonesty.