GREENE, J.
On September 27, 2013, the Attorney Grievance Commission of Maryland ("Petitioner" or "Bar Counsel"), acting pursuant to Maryland Rule 16-751(a), filed a "Petition For Disciplinary Or Remedial Action" against Kevin Trent Olszewski ("Respondent" or "Olszewski") arising out of two separate client complaints. Petitioner charged Respondent with violating various Maryland Lawyers' Rules of Professional Conduct ("MLRPC" or "Rule"), specifically Rule 1.1 (Competence),
This Court referred the matter to the Honorable Robert Edward Cahill, Jr. of the Circuit Court for Baltimore County for a hearing and to render findings of fact and conclusions of law pursuant to Maryland Rule 16-757. Judge Cahill conducted an evidentiary hearing on February 20, 2014, at which the parties submitted an agreed stipulation of facts and exhibits. Judge Cahill heard testimony from Respondent and three other witnesses: Shaneise T. Ware, Lizabel Acosta-DeJesus, and Margaret Hoffman. Thereafter, Judge Cahill issued Findings of Fact and Conclusions of Law, in which he found, by clear and convincing evidence, that Respondent violated MLRPC 1.1, 1.3, 1.4, 1.5, 1.7, 1.15, 1.16, 8.1, 8.4(a) and (d).
Respondent was admitted to the practice of law on December 10, 1982, and maintains a solo practice in Bel Air, Maryland,
Mrs. Ware retained Respondent to represent her and her husband, Mr. Ware, on September 24, 2009, following a single vehicle accident in which both Mr. and Mrs. Ware sustained injuries. The accident occurred on September 21, 2009, at which time Mrs. Ware was driving and Mr. Ware was a front seat passenger. Due to the severity of his injuries, Mr. Ware was taken to the University of Maryland's Shock Trauma Unit for treatment. He remained in the hospital at the time that Mrs. Ware retained Respondent to represent them, but Mr. Ware signed a separate retainer agreement with Respondent on November 10, 2009.
On behalf of Mr. and Mrs. Ware, Respondent secured the payment of PIP benefits from Mrs. Ware's insurer, the Maryland Automobile Insurance Fund. In completing further investigation of the Wares' potential claims, Respondent discovered that the vehicle involved in the accident, a 2000 Buick LeSabre, was a rebuilt salvage vehicle. That fact had not been disclosed to the Wares when they purchased the vehicle in July 2009 from BH Motors in Joppa, Maryland. Respondent also learned that Mrs. Ware's insurance policy provided the minimum statutory liability limits, which Mr. Ware's medical bills far exceeded.
On June 29, 2012, Mr. and Mrs. Ware filed a complaint with Petitioner, alleging that Respondent would not return their telephone calls or advise them about "the status of our case." Petitioner sent letters to Respondent, dated July 13, 2012, August 8, 2012, and October 12, 2012, requesting a response to the Wares' allegations. Despite receipt of the letters, Respondent failed to respond.
On September 21, 2012, Respondent filed in the Circuit Court for Harford County a civil action against Mrs. Ware on behalf of Mr. Ware. Then, on September 24, 2012, Respondent filed a separate action in the Circuit Court for Harford County on behalf of both Mr. and Mrs. Ware against BH Motors. On February 23, 2013, the Circuit Court consolidated the two civil cases pursuant to a joint motion filed by the respective defendants. Ultimately, both cases were dismissed.
Respondent admitted that his representation of Mr. Ware against Mrs. Ware created a conflict of interest. Although Respondent maintained that he discussed the conflict of interest with the Wares, the hearing judge found otherwise based on the credible testimony of Mrs. Ware, who testified that Respondent never discussed the question of a conflict with her. Respondent acknowledged that he should have instructed Mr. Ware to retain a different attorney, or referred the case to another attorney, in the lawsuit against Mrs. Ware. In any event, the hearing judge found that Respondent "plainly knew, or should have known of this obvious conflict and ignored it."
In addition, the hearing judge found that, though Respondent adequately communicated with Mrs. Ware in the early stages of his representation, Respondent failed to respond to her telephone calls during the months leading up to the Wares' filing of the attorney grievance complaint. Therefore, the hearing judge found that Respondent "failed to adequately or effectively communicate with Mrs. Ware about the status of her claims, or about the propriety of representing Mr. Ware in his case against her."
Lizabel Acosta-DeJesus, the office manager for Roman A. DeJesus, M.D., LLC, signed a written Representation and Fee Agreement on December 2, 2008, engaging Respondent for the purpose of collection of delinquent accounts owed to Dr. DeJesus's medical practice. The Representation and Fee Agreement specified that Respondent would represent Dr. DeJesus's medical practice on a contingent fee basis, at a rate of 33.3% of the amount collected. By letter dated November 19, 2008, attached to the Representation and Fee Agreement, Respondent stated that he would only accept claims greater than $3,000.00, because, in his experience, it would be cost prohibitive to take collection actions for accounts valued below $3,000.00, unless the client has a high volume of collection cases.
Since 2008, Dr. DeJesus's office referred only two collection cases to Respondent. Respondent resolved the first collection matter against a DeJesus patient, Brian Bragg, and forwarded the monthly payments he received from the patient to Dr. DeJesus's office. On September 21, 2011, Dr. DeJesus's office referred the account of Cherie L. Chase to Respondent for collection. At that time, the account had a delinquent balance of $9,075.00. Prior to referring Ms. Chase's account to Respondent, Dr. DeJesus's office had made attempts to obtain payment from Ms. Chase's insurer. The insurer declined payment, however, because it required additional information from Ms. Chase, which she failed to provide. Dr. DeJesus's office informed Ms. Chase that the insurer would not provide payments unless it received the information from her, and that, alternatively, she could file an appeal with the insurer, prompting them to make payments to Dr. DeJesus. Respondent was unaware of the communications with the insurance company, and had been advised by Dr. DeJesus's office that the insurer's time frame for claim submission had already passed. Accordingly, Respondent was unaware that Ms. Chase's account balance was subject to change by means of an insurance adjustment.
Thereafter, on April 5, 2012, Respondent sent a "remittance report" to Dr. DeJesus's office. This report itemized the insurance payments and adjustments to the Chase account and stated that Respondent's contingency fee for this matter was one-third of the insurance payment of $1,745.61. Respondent also charged a 15% fee on the adjusted amount for an additional fee of $1,031.00. Dr. DeJesus's office disputed the $1,031.00 fee, because the $6,873.31 adjustment amount was not actually collected on the account. To cover the claimed 15% fee, despite knowledge that Dr. DeJesus's office disputed the fee, Respondent withheld funds owed to Dr. DeJesus from the monthly payments he was receiving on the Bragg account. Respondent did not explain to Dr. DeJesus's office that funds collected on one account could be applied to pay Respondent's fee related to a separate account. The amount Respondent withheld from the Bragg account, over a period of several months, totaled $1,279.69. On April 30, 2012, Respondent received a $500.00 payment from Ms. Chase. From that payment, he deducted his fee of $166.70 (33% of $500.00). He also retained the remaining 67% of the payment ($333.30) that was payable to Dr. DeJesus. Thus, between the amounts withheld from the Bragg payments and the amount withheld from the Chase payment, Respondent retained for himself a total fee of $1,612.99 claimed on the Chase account.
At the disciplinary hearing on February 20, 2014, Respondent testified that he recognized his error in taking a contingency fee on an amount not actually recovered for Dr. DeJesus and he expressed genuine remorse for withholding funds from the collections on the Bragg account. As of the hearing date, however, Respondent had not issued a refund to Dr. DeJesus, but indicated that he was pursuing collection of the remaining balance on the account from Ms. Chase and would forward the first $1,031.00 received to Dr. DeJesus. The record indicates that Respondent did remit a payment of $1,031.00 to Dr. DeJesus's office by check dated April 10, 2014.
With regard to the DeJesus complaint, Judge Cahill concluded that Respondent violated MLRPC 1.5(a) and (b), 1.15(d) and (e), 8.1(b), and 8.4(a) and (d), as follows:
In addition, the hearing judge made the following findings with regard to mitigation and aggravation:
In attorney discipline proceedings, this Court has original and complete jurisdiction and conducts an independent review of the record. Attorney Grievance Comm'n v. Jarosinski, 411 Md. 432, 448, 983 A.2d 477, 487 (2009). "The Court gives deference to the hearing judge's assessment of the credibility of the witnesses." Attorney Grievance Comm'n v. Thomas, 409 Md. 121, 147, 973 A.2d 185, 201 (2009) (citing Attorney Grievance Comm'n v. Ugwuonye, 405 Md. 351, 368, 952 A.2d 226, 236 (2008)). Where no exceptions are filed to the hearing judge's
MLRPC 1.1 requires a lawyer to provide competent representation to his or her clients. As defined in the Rule, "[c]ompetent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." MLRPC 1.1. We agree with the hearing judge that, on the facts of this case, "a minimal threshold of competent representation was breached when [Respondent] agreed to represent one client against another and continued with that representation to the point of filing an action against Mrs. Ware on behalf of Mr. Ware."
MLRPC 1.3 requires a lawyer to "act with reasonable diligence and promptness in representing a client." We agree with the hearing judge that Respondent violated Rule 1.3 by waiting until the end of the limitations period, almost three years after the injury, to file a lawsuit. See Attorney Grievance Comm'n v. Davis, 375 Md. 131, 162, 825 A.2d 430, 448 (2003) (concluding that the attorney did not act with reasonable diligence when she waited to file suit until the day before the limitations period expired). We further agree that Respondent violated Rule 1.3 by failing to timely furnish responses to discovery requests, requiring the intervention of the Administrative Judge and ultimately leading to the dismissal of one of the cases. See Attorney Grievance Comm'n v. Brown, 426 Md. 298, 320, 44 A.3d 344, 358 (2012) (concluding that the attorney's "lack of diligence and promptness in answering the opposing parties' discovery requests caus[ing] the judge in each case to issue sanctions" constituted a violation of Rule 1.3).
MLRPC 1.4(a) requires an attorney to "(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent ... is required ...; (2) keep the client reasonably informed about the status of the matter; [and] (3) promptly comply with reasonable requests for information[.]" We agree with the hearing judge that Respondent clearly violated Rule 1.4(a)(1) by failing to explain the potential conflict of interest when he undertook joint representation of Mr. and Mrs. Ware. In addition, we agree that Respondent clearly violated Rule 1.4(a)(2) and (3) when he failed to respond to phone calls from Mrs. Ware and failed to keep the Wares informed of the status of their matters, including the dismissal of the case in which Mrs. Ware was the plaintiff. See Attorney Grievance Comm'n v. Heung Sik Park, 427 Md. 180, 193, 46 A.3d 1153, 1160 (2012) (concluding that the attorney violated Rule 1.4 by failing to inform the client about requests for additional information and that the client's claim had been denied, and by failing to respond to repeated inquiries from the client).
MLRPC 1.7 provides that, generally, "a lawyer shall not represent a client if the representation involves a conflict of
MLRPC 1.16(a)(1) requires a lawyer to decline or terminate representation if "the representation will result in violation of the [MLRPC]." We agree with the hearing judge that Respondent violated Rule 1.16 when he failed to terminate his representation of the Wares when it should have become apparent that there existed a conflict of interest. See Zhang, 440 Md. at 163, 100 A.3d at 1132 (concluding that attorney violated Rule 1.16(a) where attorney "had a conflict of interest in representing both Husband and Wife at the same time" when the husband and wife had competing interests).
MLRPC 8.1 requires a lawyer to timely respond to lawful requests for information, including letters, from Bar Counsel. See Attorney Grievance Comm'n v. Fezell, 361 Md. 234, 249, 760 A.2d 1108, 1116 (2000), and cases cited therein. We agree with the hearing judge that Respondent violated Rule 8.1 by knowingly failing to respond to three letters sent to him by Bar Counsel regarding the Ware complaint.
MLRPC 8.4(a) defines professional misconduct as "violat[ing] or attempting to violate the [MLRPC]...." Accordingly, we agree with the hearing judge that by violating the MLRPC as described above, Respondent is in violation of Rule 8.4(a). MLRPC 8.4(d) further defines professional misconduct as "engag[ing] in conduct that is prejudicial to the administration of justice." Although the hearing judge did not specify on which facts he based his conclusion that Respondent violated Rule 8.4(d), based on our independent review of the record, we agree that the hearing judge's conclusion was correct. Where Respondent failed to competently and diligently represent the Wares, ultimately resulting in the dismissal of their case(s), Respondent engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(d). See Attorney Grievance Comm'n v. De La Paz, 418 Md. 534, 556, 16 A.3d 181, 194 (2011) (concluding that the attorney violated Rule 8.4(d) when he failed to file a petition to open an estate, resulting in the dismissal of his client's complaint).
MLRPC 1.5(a) authorizes a lawyer to charge a reasonable fee. Rule 1.5(b) further requires that "[a]ny changes in the basis or rate of the fee or expenses shall also be communicated to the client." Respondent's fee agreement with Dr. DeJesus's office specified that he would be entitled to 33.3% of the amount collected. We agree with the hearing judge that by
MLRPC 1.15(d) requires a lawyer to "deliver promptly to the client ... any funds that the client ... is entitled to receive." MLRPC 1.15(e) further requires a lawyer to hold property in trust when there is a dispute as to whom the property belongs until the dispute is resolved. We agree with the hearing judge that Respondent violated Rule 1.15(d) by withholding funds owed Dr. DeJesus's office from payments made on the Bragg account. See Attorney Grievance Comm'n v. Stern, 419 Md. 525, 557, 19 A.3d 904, 925 (2011) (concluding that the attorney violated MLRPC 1.15(d) by failing to remit funds to the client after receiving settlement payments). In addition, we agree with the hearing judge that Respondent violated Rule 1.15(e) by not holding the disputed fee in trust, when he knew that Dr. DeJesus's office disputed the fee. See Attorney Grievance Comm'n v. Calhoun, 391 Md. 532, 569, 894 A.2d 518, 540 (2006) (stating that where the respondent knew that there was a dispute as to her fees arising from settlement funds, "respondent should have deposited the funds into a proper trust account pending resolution of such dispute").
Finally, we agree with the hearing judge that Respondent's failure to respond to the September 28, 2012 letter from Bar Counsel constitutes a technical violation of MLRPC 8.1(b), and that Respondent's conduct with regard to his mishandling of fees constitutes violations of 8.4(a), as well as conduct prejudicial to the administration of justice in violation of MLRPC 8.4(d). See Calhoun, 391 Md. at 570, 894 A.2d at 540.
Neither Petitioner nor Respondent filed exceptions to the hearing judge's findings of fact and conclusions of law. Accordingly, "[t]he only question to be resolved by us is the appropriate sanction." Attorney Grievance Comm'n v. Palmer, 417 Md. 185, 205-06, 9 A.3d 37, 49 (2010). In attorney discipline cases, the sanction imposed depends on the facts and circumstances of each case, and in arriving at an appropriate sanction we "consider the nature of the ethical duties violated in light of any aggravating or mitigating circumstances." Attorney Grievance Comm'n v. Paul, 423 Md. 268, 284, 31 A.3d 512, 522 (2011). Accordingly, the sanctions imposed should be "commensurate with the nature and gravity of the violations and the intent with which they were committed." Attorney Grievance Comm'n v. Stein, 373 Md. 531, 537, 819 A.2d 372, 375 (2003). "It is well settled that our obligation in disciplinary matters is to protect the public and maintain the public's confidence in the legal system rather than to punish the attorney for misconduct." Attorney Grievance Comm'n v. Nichols, 405 Md. 207, 217, 950 A.2d 778, 785 (2008) (quoting Attorney Grievance Comm'n v. Ward, 394 Md. 1, 32-33, 904 A.2d 477, 496 (2006)).
Petitioner recommends a sanction of indefinite suspension with the right to reapply after six months. Petitioner asserts that this sanction is consistent with prior cases involving multiple violations with regard to multiple clients, including client neglect and mishandling client funds, such as Attorney Grievance Commission v. Patterson, 421 Md. 708, 28 A.3d 1196 (2011).
We have also imposed a sanction of indefinite suspension with the right to reapply after six months in the case of a conflict of interest in violation of MLRPC 1.7. See Attorney Grievance Comm'n v. Hines, 366 Md. 277, 295, 783 A.2d 656, 666 (2001). In Hines, we suspended the respondent indefinitely with the right to reapply after six months where the respondent, who was an officer and director of a corporation, advised another corporate director regarding a confessed judgment action filed against the corporation by the respondent's firm, to enforce a promissory note held by the respondent's wife. 366 Md. at 291-92, 783 A.2d at 665. Although the conflict in Hines involved a different context than that at issue in this case, we were concerned about the seriousness of the offense. We also noted that we were "troubled by the finding that the respondent `was trying to, and did, "pull a fast one"' in connection with the last of the loans made by his wife, when the loan document had a signature line for him but the agreement did not include him as obligor." Hines, 366 Md. at 294, 783 A.2d at 666.
Respondent asks that we impose a reprimand or finite period of suspension. He argues that the cases cited by Bar Counsel in support of an indefinite suspension with the right to reapply after six months are distinguishable based on the severity of the misconduct in those cases. Respondent asserts that his case bears more resemblance to Attorney Grievance Comm'n v. Queen, 407 Md. 556, 967 A.2d 198 (2009), in which we imposed a reprimand, or alternatively, he contends his case is like Attorney Grievance Comm'n v. Ugwuonye, 405 Md. 351, 952 A.2d 226 (2008), in which we imposed a ninety day suspension. The disciplinary action in Ugwuonye, like the instant case, stemmed from complaints from two former clients. 405 Md. at 355, 952 A.2d at 228. The hearing judge concluded that Ugwuonye violated MLRPC 1.1, 1.3, 1.4, and 8.4(d) with regard to one client, where Ugwuonye initially and timely filed a complaint on behalf of the client, but subsequently failed to respond to requests from the court and from the client and failed to remove himself from the case. Ugwuonye, 405 Md. at 366, 952 A.2d at 234-35. With regard to the second client, the hearing judge concluded that Ugwuonye violated MLRPC 1.1, 1.3, 1.5, 1.15, 1.16(d) and 8.4(d) where Ugwuonye "[took] a meritless case, charg[ed] a fee that grossly outweighed the work accomplished, and [engaged in] the overall lack of communication" with the client. Ugwuonye, 405 Md. at 367, 952 A.2d at 235. We concluded that a ninety day suspension was appropriate, because "Ugwuonye did not act with dishonest, deceitful, or fraudulent
Respondent further asks us to consider the mitigating factors
We recently discussed mitigating factors similar to the ones found in this case in Attorney Grievance Comm'n v. Brigerman, 441 Md. 23, 105 A.3d 467 (2014). In that case, we stated:
Brigerman, 441 Md. at 43, 105 A.3d 467. To be sure, as we stated in Brigerman, "[p]ersonal issues, however, do not excuse an attorney's abrogation of his professional duties." Id. at 43, 105 A.3d 467 (stating further that "[r]espondent's misconduct was severe — he abandoned [one client], made misrepresentations to [another client] and [Bar Counsel], and failed utterly to cooperate with [Bar Counsel]'s investigation"). In that case, although Bar Counsel sought disbarment, we held that under the totality of the circumstances, considering the mitigating factors and despite the respondent's mishandling of client funds, misrepresentations to clients and Bar Counsel in violation of MLRPC 8.4(c), and failure to respond to no less than fourteen letters from Bar Counsel, the appropriate sanction was less than disbarment
In this case, Respondent's conduct, particularly with regard to his neglect and inattention of the Ware matter, was severe. Although he promptly secured PIP benefits for the Wares, Respondent subsequently failed to act competently and diligently in representing them and in pursuing their claims. He created a conflict of interest when he agreed to represent both Mr. and Mrs. Ware at the outset, knowing that as a result of the automobile accident, they had competing interests. Respondent then compounded the issue when he filed suit on behalf of Mr. Ware against Mrs. Ware, and subsequently failed to resolve the conflict by not advising the Wares to seek alternate counsel. As we noted, the conflict was not waivable and, along with Respondent's failure to respond to discovery requests in the BH Motors case, ultimately led to the dismissal of the Wares' claims. Respondent further failed to respond to communications from the Wares or to keep them updated about the status of their cases. This conduct exemplifies the kind of "serious neglect and inattention" that we have held warrants an indefinite suspension. David, 331 Md. at 323, 628 A.2d at 181. In addition, with regard to Dr. DeJesus's complaint, Respondent charged an unreasonable fee and improperly withheld funds owed to Dr. DeJesus. Respondent failed to place the disputed fee into a trust account pending resolution of the dispute. After the hearing date but before the date of oral argument in this case, Respondent returned the withheld funds to Dr. DeJesus. Those funds had been wrongly withheld from the client for a period of approximately two years. Finally, Respondent failed on multiple instances to respond to communications from Bar Counsel. Considering the totality of the circumstances, we conclude that the appropriate sanction for Respondent's misconduct is an indefinite suspension with the right to reapply after six months.
407 Md. at 568, 967 A.2d at 205.