*1 Montgomery County judicial in the Circuit Court review Special Appeals. appeal and authorized Court THE SPECIAL APPEALS JUDGMENT OF COURT OF THAT AND CASE REMANDED TO COURT REVERSED THE THE TO DECIDE MERITS OF WITH DIRECTIONS IN THE APPEAL. IN THIS AND COURT COSTS COURT ABIDE THE FINAL RESULT OF APPEALS TO SPECIAL IN THAT COURT.
Aug. *3 Hirshman, Botluk, Melvin Bar Counsel and P. Asst. James Counsel, Bar Atty. for Grievance Com’n of Md. Gordon, Baltimore, Wyndal Respondent.
J. for BELL, C.J., ELDRIDGE, RAKER, Argued before WILNER, CATHELL, BATTAGLIA, HARRELL and JJ.
BELL, Judge. Chief (the Attorney Maryland Grievance Commission “Commission”), Counsel, petitioner, by acting pursu Bar 16-709, for Maryland Disciplinary ant to Rule filed a Petition Jeter, alleging that against respondent, Action Michael A. violating Maryland engaged he misconduct certain charges Lawyers’ Rules of Professional Conduct. The arose respondent’s representation of Benita Brown out of the personal injury arising claim out of an connection with her alia, involved, accident and inter the fee the automobile respondent charged, respondent’s failure to maintain respondent’s promptly trust account and the failure to dis payment physical therapist who treated Ms. burse Bollinger Brown. The Honorable Thomas of the Circuit referred, County, for to whom the case was Court Baltimore 16-711(a),1 pursuant Maryland hearing Rule and to law, findings of fact and draw conclusions of determined make Maryland that the violated Rules Professional (Fees)2 Mary (Safekeeping Property),3 1.5 and 1.15 Conduct (a) Rule 16-711 reads: 1. Disposition Charges. "Rule 16-711. Findings. a. A written statement of the of fact and conclu- proceedings copies of law shall be filed in the record of the
sions parties.” sent to all fee, 1.5(c) Maryland contingent requires permits but that its writing,” stating client in “the method terms "be communicated *4 determined, by including percent percent- which the fee is to be or settlement, lawyer ages accrue to the in the event of trial or that shall litigation recovery, appeal, expenses and other to be deducted from the expenses and whether such are to be deducted before or after the contingent fee is calculated.” provides: 3. That Rule “(a) persons lawyer property shall of clients or third that is in A hold lawyer’s possession representation separate a in connection with a lawyer’s property. kept separate own Funds shall be in a
from pursuant Chapter Mary- account maintained to Title 600 of the property appropri- Other and land Rules. shall identified as such Account)4 (Duty 16-603 to Maintain and 16-604 land Rules (Trust (1989, Deposits)5 Maryland and Code Account-Related § RepLVol.), Occupations 10-306 of the Business Article,6 Maryland Professions but not of Professional Rule (Bar Matters).7 Disciplinary Conduct 8.1 Admission and ately safeguarded. Complete records of such account funds and of property kept by lawyer preserved other shall be and shall be for period years representation. a five after termination of the "(b) Upon receiving property in client or funds or other which a interest, person lawyer promptly notify third has an a shall the client person. Except permitted or third as stated in this Rule or otherwise client, by by agreement lawyer promptly law or with the a shall person any property deliver to the client or third funds or other and, person upon request by the client or third entitled to receive person, promptly accounting or client third shall render a full regarding property. such “(c) representation lawyer possession When in the course a is in lawyer property person in which both the and another claim inter- ests, property kept separate by lawyer shall be until there is accounting dispute an If severance their interests. arises interests, concerning respective portion dispute their in shall be kept separate lawyer by dispute until the is resolved.” attorney attorney’s “An 4. or the law firm shall maintain one or more attorney deposit any trust accounts for the of funds received from persons. source for the intended benefit of clients or third The account State, or accounts shall be in in maintained the District of Colum- bia, State, contiguous approved or in a state to this and shall be with an account, attorney financial institution. Unless an maintains such an or by employed is a member of or firm law that maintains such an account, attorney may accept attorney an not receive and funds as an any part from source intended in whole or in for the benefit of a client person.” or third law, funds, “Except permitted by 5. as otherwise or other rule all cash, including accepted by attorney received and an or law firm in this person part State from a client or third to be delivered in whole or person, or payment a client third unless received as of fees owed the attorney expenses properly client or reimbursement for client, deposited attorney advanced on behalf shall be in an trust approved apply account an financial institution. This does not attorney an instrument received or law firm that is made payable solely person directly to a or client third and is transmitted person.” the client or third lawyer may money any purpose 6. "A not use trust other than purpose money lawyer.” for which the trust is entrusted to the bar, applicant “An lawyer for admission or reinstatement or a application connection with a bar admission in or connection with a *5 forth in the Court’s conclusions was set basis for these Order, as follows: Opinion and Memorandum Action is Disciplinary for basis for this Petition “The Court, of the Bar of while a member Respondent, in connec- L. Brown representation Benita undertook the arising from an automo- injury claim personal tion with her Ms. Brown was treated on accident October bile Schulman, therapist, October physical a by Bonnie Ms. automobile accident. sustained injuries 1997 for 17, 1997 which on October signed an authorization Brown for from payment to make a claim Ms. Schulman authorized company company requesting and insurance pay Ms. Schulman. Ms. Brown’s insurance filed a claim with
“Ms. Schulman Company. In December Allstate Insurance [company], repre- a check from Allstate Respondent received 1997 the compensating personal injury protection benefits senting by Ms. Schulman. treatment rendered Ms. Brown that the placed an account was endorsed The check Maryland. Provident Bank had with the Respondent Respondent [did] account. This account was an escrow 10, 1998, until June payment to Ms. Schulman not forward was made Payment check. depositing months after six by cashier’s check. $3,000 addition, a in settle- received check Respondent
“In 1998, and April deposited claim in of Mr. Brown’s ment commu- Respondent did not operating in his account. same Brown in with Ms. representation of his nicate the terms of Bar Counsel alleged It that the Office writing. is further response Respondent requesting three letters sent matter, disciplinary not: shall fact; "(a) or knowingly a false statement of material make “(b) misapprehension necessary a fact to correct fail to disclose matter, knowingly fail to person have arisen in the or
known or information from an admissions a lawful demand for require disclosure disciplinary authority, except that this Rule does not protected Rule 1.6." of information otherwise beginning through July 1998 and Complaint June Respondent failed to submit a written answer. *6 “TESTIMONY Benis, Commis- investigator Attorney Mr. for the Grievance sion, purposes for admission of various testified the investigation his and his concerning documents interviews investigation His that Respondent. with the revealed there Respondent any way was no evidence that was in by his actions in this matter. enriched “Mr. Tim that is a Turner testified he friend Benita Brown, case, they claimant in and that a child have together. Respondent they He has known the since were friend, children, personal has been a and he Ms. referred Respondent legal representation. Brown to the for He was impression taking under the that Mr. Jeter was the case for Ms. a doing free and Brown favor. He handled all [him] and Respondent, matters between Ms. Brown and he keep expenses authorized Mr. Jeter to for his out $391 proceeds personal injury of the of the checks.
“Benita Brown Mr. for testified she retained Jeter representation as a result of an automobile accident. She and, that, physical therapist a than went to other allowed fiancé, Turner, Mr. Jeter and Tim everything. her handle gave Mr. sign She her consent for Jeter to her name to the from personal injury protection checks received carrier Company. and from Allstate Insurance She testified that thought she that Mr. took on pro Jeter the case bono basis. had no thoughts anything She second about Mr. did, and all funds Jeter she received that she believed rightly were due her. Jeter, Esquire basically agreed
“Michael testified and with alleged petition. facts of He was introduced to his client, Brown, by friend, Turner, longtime Benita his Tim everything Mr. through handled Turner Ms. agreed Brown’s consent. He that at that time he did not account, was the one he did have have an stated escrow Mr. further stated in 1997 but closed Jeter opened agreed account and opened now new escrow that he has for Brown deposit any of the checks Ms. that he did that he or trust account. He further testified any escrow final injury protection checks and the personal endorsed knowledge full and consent of Ms. check with the settlement Brown. addition, produced following wit- Respondent
“In knows Mr. Kelley testified she Jeter nesses: Jackson proceeding in her divorce represented arid that he her well very ago. stated that he handled matters years two She go again representation. him and that she would well Gaskins, for Baltimore Gregory Esquire, Assistant Solicitor Mr. that he believes County, has known Jeter and testified *7 law and that is honest.” practice Mr. is fit to he Jeter evidence, found, by preponderance the of the The court also mitigated by respon- the violations in this case were that the cases, handling personal injury in his inexperience dent’s fact practice, a criminal and the practice being primarily friend, that, as a favor to a childhood having taken the case personally not as a result of his respondent the “was enriched to the significance actions in this case.” It was of various that, having professional responsibility taken a despite court course, require- was not familiar with [rjespondent “the the Mary- and the under the Rules of Professional Conduct ments duty for a to maintain an land that called escrow Rules handling opined of funds.” court account for the client The regard: in this further in this case would not have taken this
“Perhaps the events Respondent thoroughly pro- understood the course had the handling responsibilities required per- for the fessional is injury Respondent This Court finds that the sonal cases. truly He never intended to defraud Ms. Schul- remorseful. (the (his client). therapist) or Ms. Brown The physical man naively long they considered that as as were Respondent run, long regardless how the paid he handled funds, professionally responsible.” this was exceptions. petitioner respondent Both and the filed findings of fact and petitioner excepted to the court’s first, law, challenges In it four in conclusions of number. respondent to find that violated the court’s failure that, *8 money himself.” respondent’s exceptions challenged
The the source of some of the evidence that formed the basis for court’s the of In particular, characterizing hearsay, fact. it as he believes that in considering Inquiry the court erred the Panel tran- script testimony did not physical therapist, the who Moreover, appear at hearing complaint. of the the re- spondent petition- maintains that the evidence adduced respondent’s er to establish violation of the rules he was found to purpose. have violated was that insufficient
288 parties’
The recommendation of sanctions is also different. disbarment, petitioner respondent The seeks while the be- complaint respon- lieves that the should be dismissed. The that, position exceptions dent’s alternative is should his be overruled, sanction appropriate reprimand. would be a sure, 8.1(b),
To a respondent required, by respond request from Bar for information in Counsel Indeed, a investigation complaint. just connection with the Oswinkle, 182, recently, Attorney Griev. Comm’n v. 364 Md. 189, 267, (2001), 772 A.2d 271 this Court made clear that the respond failure to so is a sanctionable violation. See also Fezell, 234, 255-56, Attorney Griev. Comm’n v. 361 Md. 760 (2000). 1108, petitioner charges A.2d 1119 Just because the 8.1, however, violation of Rule does not mean that the court violation; find must the court still must determine wheth er in fact to respond failed as the Rule requires. petitioner’s exception respon stresses that the respond writing request response
dent did not to its for a complaint against fact, however, him. In point filed petitioner admits that it did writing least to portion complaint, portion of the physical related Moreover, not, terms, therapist. the Rule does its indicate that a response written is mandated or even that there is a preference for a response. such The court found no violation reason, of Rule 8.1. it did not on While elaborate we presume that trial judges correctly apply know the law and it. State, 418, 427, 787, (2000); See Roach v. 358 Md. A.2d 749 792 State, 169, 188, (1995); 702, Elias v. 339 Md. 661 A.2d 711 State, 651, 673, 685, (1993); v. Gilliam 331 Md. 629 A.2d Evans, 1, 34, Medical Mutual v. 330 Md. 622 A.2d (1993); State, 1, 8, Smith v. 306 Md.
(1986). Accordingly, say we cannot finding the court’s on clearly point was erroneous. Attorney See Griev. Awuah, Comm’n v. Maryland 346 Md. (1997); Griev. Attorney Kemp, Comm’n
289 (1985). 672, 8-131. 664, 674, See also Md. Rule 496 A.2d 677 exception is overruled. petitioner’s The concerning respondent’s court made The intention, knowledge of of Professional Conduct the Rules financial respondent’s on the well- of the misconduct the effect whether the these matters will determine being. While occurred, ques they are relevant to the charged misconduct of sanction. That the effect appropriate tion of the belonging misappropriate funds respondent’s may action be Bernstein, another, v. 363 Attorney Griev. Comm’n as 607, (2001), 208, 221, not mean that the A.2d 614 does Md. 768 misappropriate. with intent to actions were taken finding of respect Similarly, this is the case knowledge of the respondent’s no enrichment and the personal acts with Clearly, Conduct. one who Rules Professional calculation, fully cognizant of the situation deliberation and and, therefore, is fully intending the result that is achieved act, who, culpable though doing than one the same does more unintentionally, negligently appreciation or without full so petitioner is consequences. Again, exception this accordingly overruled. simply respondent’s exceptions fare no better. There
The basis, record, on for this Court to conclude that the is no admitting the evidence to which the court committed error respondent excepts. brings question appropriate
This us to the of the sanction indicated, imposed. petitioner As seeks disbarment most, that, reprimand and the thinks is warranted. disciplinary proceedings against purpose on
attorney settled and has been stated this Court well many protect public punish occasions: to rather than to Griev. attorney engages Attorney who misconduct. Tolar, 569, A.2d Maryland Comm’n v. 357 Md. (2000); Attorney Maryland Griev. Comm’n 440, 446-47, (1994); Myers, 333 Md. Attorney Goldsborough, Griev. Comm’n v. Protokowicz, 503, 513; Attorney Griev. Comm’n v. *10 252, 262-63, 100,105 (1993); Attorney Griev. A.2d
329 Md.
619
Hamby,
v.
606, 611,
53,
(1991);
Comm’n
322 Md.
589 A.2d
56
v.
571, 580,
Attorney
Myers,
Griev. Comm’n
302 Md.
490 A.2d
v.
231,
(1985);
Attorney
Velasquez,
Griev. Comm’n
236
301
450, 459,
354,
(1984);
Attorney
Griev.
483
359
Md.
A.2d
v.
113, 119,
597,
Montgomery,
Comm’n
296
Md.
460 A.2d
600
(1983).
purpose
imposed
That
is achieved “when sanctions are
gravity
that are commensurate with the nature and
of the
they
violations and the intent with which
were committed.”
Awuah,
v.
420, 435,
Attorney Griev. Comm’n.
346 Md.
697
(1997).
words,
446,
In
imposed
A.2d
454
other
sanction is
legal profession
type
demonstrate to members of the
Attorney
Griev. Comm’n v.
conduct that will not be tolerated.
341, 382,
940,
(1980),
Kerpelman,
cert.
288 Md.
420 A.2d
959
denied,
(1981).
970,
1492,
450 U.S.
101 S.Ct.
We grievance history, including prior whether there were disci plinary proceedings, misconduct the nature involved imposed, in mitigation, the sanction as well as facts are to be Franz, 762-63, into account. 355 Md. at A.2d at taken 736 344 Phoebus, (1999) ; Bar Maryland State Ass’n v. 353, 276 Md. 362, (1975). 556, 347 A.2d 561 Another factor to be considered
291 misconduct, respondent’s Attorney for the is the remorse 467, 36, 38, 323 591 A.2d 468 Wyatt, Griev. Comm’n v. Md. (1991); mitigation....’” “‘may the Court consider facts 578, 587, 664 v. 339 Md. Attorney Kenney, Griev. Comm’n (1995) v. (quoting Attorney A.2d Griev. Comm’n (1977)). Moreover, Pollack, 225, 238, misconduct, accom attorney’s voluntary an termination of the of that panied by appreciation impropriety of the serious it, as past conduct and remorse for has been viewed- evidence attorney engage in such unethical will thereafter Attorney if Griev. permitted practice. conduct to continue Freedman, Comm’n Md.
(1979). they among most consider Just as are relevant determining ations in sanction for income tax failure file returns, engag and motive of the intention *11 in misconduct also to ing Attorney are be considered. Breschi, 659, Griev. Comm’n v. 340 Md. 667 A.2d (1995). disbarment, arguing petitioner
In
on Attorney
relies
Briscoe,
554,
(2000),
Griev. Comm’n v.
357 Md.
“We cannot
holding
understate the
funds
escrow
accordance with Rule 1.15 and how the system.
Es-
public’s
legal
confidence
our
reinforces the
from the
sanctuary
accounts
as
for client funds
crow
serve
creditors____ They
provide peace
also
of mind
attorney’s
party
that no
disputing parties, assuring
one
and order
an independent
control over funds until
resolu-
will exercise
dispute.”
tion of the
81,
propositions
obligations
pay
in order to
another client’s
client’s creditors
attorney
of client
to the unauthorized use
“amount[s]
230,
Bernstein,
him,”
363 Md. at
funds that were entrusted to
every attorney
that “...
is deemed to
We are
petitioner
findings comparable
did the court make
relies
In
judice.
the court in the case sub
neither
those made
attorney
nor
did
court find that the
Bernstein
Briscoe
proceedings had no inten-
subject
disciplinary
was the
of the
by his misconduct.
tion to defraud those who were affected
*12
attorney
that
Neither did either of those courts conclude
the
Bernstein,
Indeed,
hearing
in
court
was
the
remorseful.
willfully
in that
had
specifically
respondent
found that the
case
rejected that
misappropriated
specifically
client funds and
explanation
why
for
the trust account fell below
respondent’s
227-228,
at
obligation.
trust
What Nevertheless, given to factu- effect must also be undermined. imposed. of the court that affect the sanction to be findings al not, case, importance in that by emphasizing, didWe accounts, mitigating thereby suggest intend to all trust violation of findings may disregarded factors or whenever rules, provisions, trust account or other is involved. would easily petitioner Awuah is not so dismissed as the finding, though expressed terms of have it. The decisive respondent or was that the in that case ineptitude negligence, failing to return monies to intentionally, did not act either failing pay assignments his or in to or authorizations. clients Awuah, fact, overwhelming “the conceded point In Respondent’s ineptness to total respect evidence concerning handling aspects prac- of his the business tice,” 697 A.2d at was the basis for the respondent not court’s conclusion that that case did finding intentionally violate the trust account rules and 8.4, proscribing involving conduct that he did not violate Rule fraud, dishonesty, misrepresentation. deceit and The former here, respondent was is the case while the found have rules, charged purposes, violated the for sanction the court intentionally. respon- did not so determined he do findings. dent entitled the benefit those circumstances, given court’s Under the and that respondent that the did intend defraud remorseful, appropriate was sanction is an *13 for admission to suspension right reapply indefinite Bar in six months. ORDERED; IT SHALL PAY ALL IS SO RESPONDENT COURT, BY THE AS TAXED CLERK OF THIS COSTS TRANSCRIPTS, OF ALL PURSU- INCLUDING COSTS 16-715, ANT MARYLAND RULE FOR WHICH TO SUM ENTERED IN FAVOR OF THE ATTOR- JUDGMENT IS NEY GRIEVANCE COMMISSION AGAINST MICHAEL A. JETER. HARRELL, J.,
Concurring dissenting opinion by joined BATTAGLIA, by RAKER and JJ.
HARRELL, concurring dissenting: Judge, agree Majority opinion regarding everything, I with the sanction, including overruling save for the of Petitioner’s exception hearing judge declining that conclude 8.1(b). Respondent violated Rule I would sustain Petitioner’s though on it exception point. change this Even does not sanction, view, my in disagreement compels this me to write reasoning Majority separately opinion because the regard by our is counter-indicated recent cases and the consistency application for appropriate need of Rule 8.1(b). 289) Majority (Maj. op.
I
perceive
mischaracter-
hearing
izes what this Court should be focused on in the
Opinion And
judge’s Memorandum
Order of 7 March 2001
and, therefore,
wrong
standard
It is
applies
of review.
hearing judge
no
beyond debate
made
true
8.1(b).1 Instead,
neutrally
fact on
of Rule
the matter
after
Nonetheless,
appears undisputed
it
on this record that Bar Counsel
established,
(13
writing,
separate
response
three
written
deadlines
1998)
July,
August
July,
Respondent by
and 5
which to answer
only
complaint
Respondent’s
response
any
and that
written
request
allege
these deadlines was to
a further extension and
that Ms.
Schulman,
therapist, ultimately
paid (attaching
photo-
had been
check).
copy
impliedly
Respondent
corroborative cashier’s
al-
Court,
(at 2)
leged
Response
Exceptions
To
his
Petitioner’s
in this
parties,
reciting some of the other evidence adduced
*14
of
hearing judge proceeded directly to “not find a violation
(Memorandum
7).
Order,
As
Opinion
8.1”
and
at
Rule
288-89),
(Maj.
hearing judge
it
at
Majority gently puts
op.
Despite
“did not
on the
for this conclusion.
elaborate
reason”
of
form
“to find”
hearing judge’s
negative
use
a
of the verb
regarding
his
announcing
ultimate recommendation
term,
8.1(b),
Majority being
by
and
seduced
the use of that
is
hearing judge
it is clear that what the
did in this case
offer
law,
any supportive fact-finding
us a conclusion of
of
or
bereft
such,
analysis.
hearing judge’s
As
conclusion of law is not
clearly
ap-
entitled to review under the
erroneous standard
288-89). Rather,
by
(Maj.
plied
Majority
op.
hearing judge’s
by
conclusion of law is reviewed de novo
this
Judge Battaglia recently
Court. As
summarized:
jurisdiction
As holder of
and
original
complete
over attor-
ney disciplinary proceedings,
the ultimate decision as to
lawyer
professional
whether a
has violated
rules
rests
record,
independent
this Court.
of
Under
review
findings
hearing
Court determines whether
of
judge
convincing
are based on clear and
evidence. The
“hearing
prima
court’s
of fact are
correct
facie
will not
they
clearly
be disturbed unless
are shown to be
erroneous.” The conclusions of law are reviewed de novo.
Clark,
169, 180-81,
Attorney Griev. Comm’n v.
363 Md.
767
(2001) (citations omitted).
865,
A.2d
871-72
8.1(b)
Turning to the substantive analysis of the Rule
Court,
I
charge,
particularly
late,
note that the
has made a
point
sending
message,
variety
clear
consistent
circumstances,
factual
to
Maryland
the Bar of
that an attor
ney’s unjustified
respond
to
cooperate
failure
or
with the office
investigations
Bar Counsel
its
will not be overlooked.
See,
Oswinkle,
182, 187,
e.g., Atty. Griev. Comm’n v.
364 Md.
(2001) (failure
Bernstein,
208, 228,
607,
A.2d
363 Md.
violation”);
cooperate
Atty.
with Bar Counsel is a serious
Fezell,
1108, 1118
760 A.2d
Griev. Comm’n v.
361 Md.
(2000) (“belated cooperation with Bar Counsel does not excuse
Respondent’s
respond
previous
failure to
five letters
Counsel”);
Atty.
Bridges,
Bar
Griev. Comm’n v.
sent
(2000)
489, 512-14,
(holding
Md.
245-46
refusal
requested
sought by
documents
Bar Counsel
provide
by subpoena,
appear
Inquiry
and to
at an
letter and later
8.1(b));
v.
hearing,
Atty.
Panel
violated Rule
Griev. Comm’n
(1999)
Shaw,
636, 644-46,
354 Md.
880-81
(violation
of Rule 8.1 found when
failed to
letters,
calls,
telephone
request
to two
two
and a
for Admis
Facts);
Hallmon,
Atty.
sion of
Griev. Comm’n
*15
(1996) (refusal
407-08,
by
681 A.2d
519
to be interviewed
8.1(b)).
found to
As
investigator
Bar Counsel’s
violate Rule
Fezell,
history
a
of
long
we summarized
this Court has
8.1(b)
attorney
by failing
that an
violates
to
to
holding
Fezell,
requesting
from Bar
information. See
letters
Counsel
249-250,
(listing
Md. at
Although are not bound to that a violation of we conclude 8.1(b) merely has occurred because Bar levels Counsel charge, present amply supports such a the record case Respondent’s requesting that such a violation occurred. letter alleging an that Ms. ultimate- extension time Schulman best, was, a ly paid only partial response. Atty. was at See Webster, 662, 674, Griev. Comm’n v. 348 Md. (1998) Bar (dilatory partial response Counsel’s 8.1(b)).
requests for bank records is a violation of As the 282-85), Majority (Maj. op. potentially at much *16 fact-finding, If to I engage the Court were inclined note Respondent, Response Exceptions that in his To Petitioner’s (at 2) us, inperson, filed with asserts that he to an submitted August by investigator oral interview Bar Counsel’s on 3 given by fell within the last Bar which date deadline Counsel writing, respond, for him to to Petitioner’s lawful demands. fact, bears, think, sanction, Assuming this to it I on the be See, Fezell, e.g., not on whether violations occurred earlier. (belated cooperation at A.2d at 1118 Md. does Webster, prior respond); excuse a failure to (eventual production request- A.2d at 1141 of some of the timely response ed information is not a to Bar Counsel’s request). If we were to that conclude further the content of Respondent’s by investigator August interview on 3 was (a responsive fully complaint conclusion with which investigator some doubt is associated as the nonetheless re- portedly Respondent informed at the end of the interview Respondent still to Bar needed Counsel’s letters in be, view, writing), my appropriate would basis for at increasing least not sanction imposed Majority. why argue here, That is I do not for a greater sanction even 8.1(b). though proven I conclude there was a violation of Rule sent, message The clear that has been and should continue sent, attorneys is that timely complete must make responses to all lawful and reasonable demands Bar made information, they may Counsel for not that avoid found being 8.1(b) by dilatory violation of Rule dent of half-hearted or (or, worst, obfuscatory) partial efforts at obeisance requirements of the Rule. notes than one written re- petitioner 8.1. The other stating to answer and sponse, requesting an extension time paid attaching copy and physical therapist that the had been check, to respondent of the cashier’s failed to com- demanding response writing to its three letters addition, plaint. respondent In it on the fact that the relies respond writing being specifically not direct- did even after to do so. ed of fact exceptions The other are made did not intend to defraud either the court: that the therapist; respon- fact that the physical client or the factor; mitigating enriched was a personally dent was mitigated he was respondent’s that the conduct was because requirements not familiar with the the Rules Professional finding, petitioner argues, Conduct. As to such each effect, doing underlying of the act the rule once the established, violation is the intent with which it was done is or, least, mitigating. petitioner irrelevant it is not What the says respect finding of a lack of intent defraud illustrative: “Respondent’s of Ms. money, assuming use Schulman’s even ultimately paid, he intended that she would was done promised pay with fraudulent intent since had he her proceeds from final took settlement instead
Notes
notes more Conduct, implicated by was at under the Rules of as stake case, complaint Respondent eventually in this than whether A paid therapist. partial response, by parity reasoning, impart only partial example, should For we con- defense. 8.1(b) attorney though cluded in Webster that an violated even requested by information some of the eventually provided he case, remaining Likewise, in present Id. Bar Counsel. forthcoming was timely, response no written matters for which 8.1(b). charge of a violation of support the reasoning its on the Majority ground also seems to not, terms, indicate that a that “the Rule does its premise prefer- is a is mandated or even that there response written 288). That is a weak response” (Maj. op. for such a ence full and excusing failure to make a justification for Mr. Jeter’s directs, or requests, If Bar Counsel response. substantive response, inquiry as its first line an demands a written in- regarding complaint, we should not become attorney properly in- second-guessing whether that decision volved protection investigation afforded an under Rule vokes the 8.1(b). We, in shown no such inclination and past, have sensibly specify response Bar Counsel to have allowed See, Fezell, 252-53, 760 A.2d at required. e.g., Md. at (letters qualify from Bar Counsel as lawful demands 1117-18 Hallmon, 407-08, 8.1(b)); 343 Md. at purposes rule 8.1 (holding attorney A.2d 519-20 violated Rule when with an Assistant Bar Counsel to discuss he refused meet from investigation being requested to do so a letter after Counsel); Atty. Kenney, the Assistant Bar Griev. Comm’n (1995) 854, 858, (holding that 8.1 attorney provide violated Rule when he failed to records being request- his accounts and other information after escrow Counsel). to do so ed Bar