BATTAGLIA, J.
Floyd Reynard Blair, Respondent, was admitted to the Bar of this Court on June, 19, 2002. On September 30, 2013, the Attorney Grievance Commission, ("Petitioner" or "Bar Counsel"), acting pursuant to Maryland Rule 16-751(a),
Judge Greenberg made the following findings regarding Respondent's background and representation of Ms. Nelson:
Based upon these findings, Judge Greenberg determined that Respondent violated Rules 1.1, 1.3 and 8.4(a) and (d) by failing to perform legal work of value for Ms. Nelson and by retaining an undeserved fee:
Judge Greenberg determined, additionally, that Respondent violated Rule 1.4(a)(2) by failing to keep Ms. Nelson reasonably informed about her case:
Judge Greenberg also found that Respondent violated Rules 1.5(a), 1.15(a) and (c), and 1.16(d). Judge Greenberg found that the $1,500.00 fee, although not unreasonable on receipt, became unreasonable in violation of Rule 1.5(a), when Respondent failed to perform any legal services benefitting Ms. Nelson.
Judge Greenberg concluded, additionally, that Respondent's actions of depositing the unearned fee in an account other than an attorney trust account, subsequently abandoning the representation of Ms. Nelson and failing to refund the unearned fee violated Rules 1.15(a) and (c) and Rule 1.16(d):
Judge Greenberg, finally, determined that Respondent violated Rules 8.4(c) and (d) by depositing the unearned fee into an account other than an attorney trust account, by failing to perform any legal work of value for Ms. Nelson and by failing to refund the fee:
Judge Greenberg noted, additionally, that Respondent presented no mitigating circumstances for his behavior:
(internal citations to evidentiary exhibits omitted). Respondent also failed to appear at oral argument before this Court on September 3, 2014.
"This Court has original and complete jurisdiction over attorney discipline proceedings in Maryland." Attorney Grievance v. O'Leary, 433 Md. 2, 28, 69 A.3d 1121, 1136 (2013), quoting Attorney Grievance v. Chapman, 430 Md. 238, 273, 60 A.3d 25, 46 (2013). We conduct an independent review of the record and we accept the hearing judge's findings of fact unless shown to be clearly erroneous. Attorney Grievance v. Lara, 418 Md. 355, 364, 14 A.3d 650, 656 (2011). "If no exceptions are filed, we may treat the hearing judge's findings of fact as established for the purpose of determining the appropriate sanction" pursuant to Rule 16-759(b)(2)(A).
Bar Counsel has not filed any exceptions to Judge Greenberg's findings of fact and conclusions of law and recommends disbarment. Respondent has not filed any exceptions. As a result, we accept Judge Greenberg's findings of fact as established for the purpose of determining an appropriate sanction. Rule 16-759(b)(2)(A). Upon our de novo review of the record, we agree with Judge Greenberg that Respondent violated Rules 1.1, 1.3, 1.4(a)(2), 1.5(a), 1.15(a) and (c), 1.16(d), and 8.4(a), (c), and (d).
Rule 1.1 "requires an attorney to provide competent representation to his/her client by applying the appropriate
Rule 1.3 requires an attorney to act with diligence and promptness in representing his or her client. McCulloch, 404 Md. at 398, 946 A.2d at 1015. Similar to Rule 1.1, an "attorney violates Rule 1.3 when he or she does `nothing whatsoever to advance the client's cause or endeavor.'" Attorney Grievance v. De La Paz, 418 Md. 534, 554, 16 A.3d 181, 193 (2011), quoting Attorney Grievance v. Bahgat, 411 Md. 568, 575, 984 A.2d 225, 229 (2009). In Attorney Grievance v. Tinsky, we determined Tinsky violated Rule 1.3 when he did not act with reasonable diligence in his representation of a client by waiting two years to file a bankruptcy petition, failing to correct the petition's deficiencies, and failing to file a necessary motion. 377 Md. 646, 651, 835 A.2d 542, 544-45 (2003). Here, Respondent's failure to correct the omissions in the deficient motion he filed and his failure to appear on Ms. Nelson's behalf at her hearing violated Rule 1.3.
Rule 1.4(a)(2) requires an attorney to keep a client reasonably informed about the status of his or her case. An attorney violates 1.4(a)(2) when he or she fails to communicate with a client that he or she has terminated representation or fails to respond to a client's repeated requests for information. See Attorney Grievance v. Costanzo, 432 Md. 233, 254, 68 A.3d 808, 820 (2013) (attorney violated 1.4(a)(2) by failing to communicate with his client that a settlement offer was rejected and by failing to respond to his client's repeated requests for information). Here, Respondent failed to communicate to Ms. Nelson that he did not correct the inadequate pleading he filed on her behalf and that he had not done anything to advance his representation of her. He, additionally, did not inform Ms. Nelson that he would not be able to competently represent her or refile the motion, as he had relocated to Georgia since beginning her representation. Respondent's failure to communicate with Ms. Nelson is, therefore, a violation of Rule 1.4(a)(2).
Under Rule 1.5(a), an attorney may not charge an unreasonable fee. An advance fee given in anticipation of legal service that is reasonable at the time of the receipt can become unreasonable if the attorney does not perform the agreed-upon services. Guida, 391 Md. at 52-53, 891 A.2d at 1096-97; see also Shakir, 427 Md. at 205, 46 A.3d at 1167 (attorney violated 1.5(a) when he accepted a fee and then failed to perform the agreed-upon services on the client's behalf). Respondent's $1,500.00 fee became unreasonable when he failed to provide Ms. Nelson with
Rules 1.15(a) and (c) require that an attorney deposit advance fees into an attorney trust account unless the client gives informed consent in writing to a different arrangement, and additionally, require that an attorney keep records of the fees. We have noted:
Attorney Grievance v. Webster, 402 Md. 448, 463-64, 937 A.2d 161, 170 (2007), quoting Guida, 391 Md. at 53, 891 A.2d at 1097. Regardless of if an attorney deposits unearned fees into a personal or operating account, he or she must have the consent of the client. Shakir, 427 Md. at 206, 46 A.3d at 1167 (attorney violated Rule 1.15(c) when he failed to deposit unearned fees into attorney trust account without client consent although the record did not indicate whether it was a personal or operations account). Here, Respondent deposited Ms. Nelson's fee in an account other than an attorney trust account without the written informed consent of Ms. Nelson and failed to keep any sort of record of the transaction, and therefore violated Rules 1.15(a) and (c).
Rule 1.16(d) provides that an attorney must refund unearned fees upon termination of representation. Respondent failed to refund Ms. Nelson the unearned $1,500.00 fee after she terminated his representation which constitutes a violation of Rule 1.16(d). See Shakir, 427 Md. at 206, 46 A.3d at 1167 (attorney violated 1.16(d) by not refunding unearned fees after representation was terminated).
Rule 8.4 generally prohibits attorney misconduct. Subsection (c) of Rule 8.4 states that it is professional misconduct for an attorney to engage in conduct that involves dishonesty, fraud, deceit or misrepresentation. "The retention of unearned fees paid by a client, alone, may constitute a violation of Rule 8.4(c)." Attorney Grievance v. McLaughlin, 372 Md. 467, 502-03, 813 A.2d 1145, 1166 (2002) (holding that an attorney violated Rule 8.4(c) when the attorney retained unearned fees from four clients); see also Attorney Grievance v. Gallagher, 371 Md. 673, 712, 810 A.2d 996, 1019 (2002) (holding an attorney violated Rule 8.4(c) when the attorney made misrepresentations about holding two clients' money in trust). Here, Respondent accepted a $1,500.00 fee, deposited the fee into an account other than an attorney trust account and did not perform any legal services in exchange for the fee. He, thereafter, failed to return the fee to Ms. Nelson. We agree with Judge Greenberg that Respondent's actions violate Rule 8.4(c).
An attorney violates Subsection (d) of Rule 8.4 when he or she "engage[s] in conduct that is prejudicial to the administration of justice." We have previously held that an attorney violates Rule 8.4(d) when he or she willfully fails to attend a hearing on behalf of his or her client. See Shakir, 427 Md. at 206, 46 A.3d at 1168; Attorney Grievance v. Dominguez, 427 Md. 308, 325-26, 47 A.3d 975, 985 (2011). An attorney can also violate 8.4(d) by failing to pursue his or her client's objectives, failing to communicate with his or her client, or withholding unearned fees. See McCulloch, 404 Md. at 401, 946 A.2d at 1017; Tinsky, 377 Md. at 651, 835 A.2d at 545 (holding that an attorney
Subsection (a) of Rule 8.4 states that it is professional misconduct for an attorney to violate the Rules. Rule violations, by themselves, are sufficient to support a violation of Rule 8.4(a). See Dominguez, 427 Md. at 323-24, 47 A.3d at 984, citing Attorney Grievance v. Seltzer, 424 Md. 94, 114, 34 A.3d 498, 510 (2011); see also Attorney Grievance v. Gerace, 433 Md. 632, 645, 72 A.3d 567, 574-75 (2013), citing Attorney Grievance v. Nelson, 425 Md. 344, 363, 40 A.3d 1039, 1050 (2012) ("Rule 8.4(a) is violated when other Rules of Professional Conduct are breached."). As stated above, Respondent has violated numerous other Rules, and therefore, has violated Rule 8.4(a). In summary, we agree with Judge Greenberg that Respondent violated Rules 1.1, 1.3, 1.4(a)(2), 1.5(a), 1.15(a) and (c), 1.16(d), and 8.4(a), (c), and (d).
We next turn to determining the appropriate sanction. Bar Counsel recommends disbarment in the present case because of Respondent's "flagrant neglect of his client affairs" and "complete disregard for the attorney discipline process and his ability to practice law in Maryland" and emphasizes Respondent's abandonment of representation after collecting a fee and failure to respond to Bar Counsel's Petition for Disciplinary or Remedial Action.
It is well settled that the purpose of attorney discipline is for the protection of the public, not punishment of the erring attorney. Attorney Grievance v. Coppola, 419 Md. 370, 404, 19 A.3d 431, 451 (2011), citing Attorney Grievance v. Goff, 399 Md. 1, 30, 922 A.2d 554, 571 (2007). "[I]mposing a sanction protects the public interest `because it demonstrates to members of the legal profession the type of conduct which will not be tolerated.'" Gallagher, 371 Md. at 714, 810 A.2d at 1020, quoting Attorney Grievance v. Mooney, 359 Md. 56, 96, 753 A.2d 17, 38 (2000) (citation omitted). We evaluate an attorney grievance matter on its own merits, considering the particular facts and circumstances in order to determine an appropriate sanction. Coppola, 419 Md. at 404, 19 A.3d at 451, citing Attorney Grievance v. Bleecker, 414 Md. 147, 176, 994 A.2d 928, 945 (2010). We also look to the "presence or absence of mitigating factors and the prior disciplinary history of the attorney ... particularly as it reveals the presence or absence of misconduct of the same, or similar, kind to that being addressed." McCulloch, 404 Md. at 402, 946 A.2d at 1018 (internal citations omitted).
We have imposed disbarment as the appropriate sanction "[i]n cases involving flagrant neglect of client affairs, including failure to communicate with clients or respond to inquiries from Bar Counsel". Attorney Grievance v. Kremer, 432 Md. 325, 338, 68 A.3d 862, 870 (2013), quoting Lara, 418 Md. at 365, 14 A.3d at 657; see also Attorney Grievance v. Dunietz, 368 Md. 419, 431, 795 A.2d 706, 712 (2002) (attorney's "continuing disregard for the attorney grievance process, his apparent indifference to the tenets of his chosen profession, the dereliction of his duties to his client, and his ostensible lack of remorse for his misconduct" warranted disbarment). In Attorney Grievance v. Lara, we imposed disbarment when an attorney obtained advance fee payments from two clients, deposited the fees in a personal account rather than in trust, failed to perform any legal work on their
In a similar case, Attorney Grievance v. Tinsky, we disbarred an attorney for violations of Rules 1.1, 1.3, 1.4, 1.16(d) and 8.4(d) when he failed to appear on a client's behalf on two occasions in a criminal case, failed to adequately represent another client in a bankruptcy matter, failed to refund unearned fees, and abandoned his law practice. 377 Md. at 650-51, 835 A.2d at 544-45. In Tinsky, we addressed two separate client complaints. In a bankruptcy matter Tinsky did not adequately represent a client after the client paid Tinsky $925.00 to file a Chapter 7 bankruptcy petition. Tinsky failed to file the bankruptcy petition for two years and did not attach the required schedules and statement of financial affairs to the petition. The Bankruptcy Court notified Tinsky of the omission, but he failed to correct the petition. The Bankruptcy Court dismissed the petition, and Tinsky did not refund the fee, "although the services rendered to [the client] were of no value to him." Id. at 650, 835 A.2d at 544. Tinsky, thereafter, closed his law office without informing his client. In a separate criminal matter, Tinsky failed to appear at a client's trial twice in the client's two cases and did not refund the client's fee or inform the client that he was closing his law office. Tinsky further failed to respond to Bar Counsel's Petition for Disciplinary Action, and an Order of Default was entered against him. We determined that disbarment was the appropriate sanction and that Tinsky "betrayed the trust that his clients placed in him when [his clients] sought his assistance and the public trust with which he was endowed when he was admitted to the Bar of this Court". Id. at 655-56, 835 A.2d at 547.
In Attorney Grievance v. Logan, we determined that an attorney's misconduct in abandoning his client and failing to answer Bar Counsel's inquiries warranted the ultimate sanction of disbarment. 390 Md. 313, 319-20, 888 A.2d 359, 363-64 (2005). In violation of Rules 1.3, 1.4(a), and 8.4(a) and (d), Logan abandoned his client after a contentious e-mail exchange, declined any further communication, and failed to return original documents to the client. Logan, additionally, violated Rule 5.5 for his unauthorized practice of law and Rule 8.1 for his failure to respond to three letters from Bar Counsel. Thereafter, Logan did not respond to Bar Counsel's Petition for Disciplinary or Remedial Action. We agreed with Bar Counsel that disbarment was the proper sanction when Bar Counsel argued:
Id. at 320, 888 A.2d at 363.
In Attorney Grievance v. Faber, we imposed disbarment as a sanction when Faber violated Rules 1.1, 1.3, 1.4(a) and (b) by accepting a $650.00 advance fee payment in a bankruptcy matter, and thereafter failing to file the bankruptcy petition or
Accordingly, disbarment is the appropriate sanction in this case.
