Attorney Grievance v. Pennington
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Circuit Co urt for Princ e Georg e s Coun ty Case No. CAE 04-10990 IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG No. 12 September Term, 2004 ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. JILL JOHNSON PENNINGTON Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinio n by Rak er, J. Bell, C.J., dissen ts Filed: June 22, 2005 The Attorney Grievance Commission of Maryland filed a petition with this Court for disciplinary action against Jill Johnson Pennington, alleging violations of the Maryland Rules of Profession al Condu ct. The Commission charged respondent with violating the following Maryland Rules o f Prof essiona l Cond uct: (1) R ule 1.1 Competence,1 (2) Rule 1.2 Scope of Representation,2 (3) Rule 1.3 Diligence,3 (4) Rule 1.4 Communication,4 (5) Rule 1.5 Fees,5 1 Rule 1.1 provides as follows: A lawyer shall provide com petent repre sentation to a client. Competent representatio n requires th e legal kno wledge, sk ill, thoroughness and preparation reasonably necessary for the represe ntation. 2 Rule 1.2 provides, in pertinent part, as follows: (a) A lawyer shall abide by a client s decisions concerning the objectives of repr esentati on . . . and, when a ppropriate, sh all consult with the client as to the means by which they are to be pursued. A lawyer sh all abid e by a client s decisio n wheth er to accep t an off er of se ttlemen t of a m atter. 3 Rule 1.3 provides as follows: A lawyer shall act with reasonable diligence and promptness in represe nting a c lient. 4 Rule 1.4 provides as follows: (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly com ply with reaso nable requ ests for info rmation . (b) A law yer shall explain a matter to the exten t reasonably necessary to permit the client to make in formed decisions regard ing the r eprese ntation. 5 Prior to t he hea ring, Ba r Coun sel dism issed the Rule 1 .5 charges. (6) Rule 1.7 Conflict of Interest: General Rule,6 (7) Rule 1 .16 Declining or Terminating Representation,7 and (8) R ule 8.4 M isconduc t.8 Pursuant to Maryland Rule 16-752(a), we referred the matter to Judge Steven I. Platt of the Circuit Court for Prince George s County to make findings of fact and proposed conclusions of law. Judge Platt held an e videntiary hearing and concluded that respondent had v iolated Rules 1.1, 1.2, 1.3, 1.4(a) and (b), 1.7(b ), 1.16(a)(1), an d 8.4(c) and (d) of the M aryland Rule s of Profe ssional Co nduct. 6 Rule 1.7 provides, in pertinent part, as follows: (b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer s responsibilities to another client or to a third person, or by the lawyer s ow n interests, unle ss: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the c lient con sents af ter cons ultation . 7 Rule 1.16 provides, in pertinent part, as follows: (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, w here repres entation ha s comm enced, sha ll withdraw from the re presentation of a client if: (1) the representation will result in violation of the Rules of Professional Conduct or other law[.] 8 Rule 8.4 provides, in pertinent part, as follows: It is professio nal miscon duct for a la wyer to: *** (c) engage in conduct involving dishonesty, fraud, deceit or misreprese ntation; (d) engage in conduc t that is prejudicia l to the administration of justice[.] 2 I. Judge Platt made the following findings of fact and conclusions of law: FINDINGS OF FACT The material facts of this case are not in dispute. Respondent was admitted to the Bar of the Court of Appeals of Maryland on Janua ry 9, 1989. Sh e is also adm itted to practice law in the District of Columbia and Minnesota. R esponde nt, since 1991, has continuously maintained an office for the practice of law at 9200 B asil Court, Su ite 111, Upper Marlboro, Maryland 20774 , where she is a s ole prac titioner. Respondent is an experienced practitioner in the areas of personal injury and family law , amon g other s. On September 15, 1999, Denise Haynes-Butler (hereinafter Mrs. Bu tler ) was inv olved in a m otor vehicle accident with M r. James Tidd (h ereinaf ter Mr . Tidd ). Mrs. Butler sustained injuries as a consequence of the mo tor vehicle accident. On September 20, 1999, Mrs. Butler and her husband, Gary Butler (here inafter M r. Butler ) retained R esponde nt to pursue their claims against Mr. Tidd arising from the motor vehicle accide nt. 3 A written Retainer Agreement was signed by Mr. and Mrs. Butler o n Septe mber 2 0, 1999, providing for Respondent to receive a contingent legal fee of one-third (1/3) of the total recovery obtained by way of settlement or forty percent (40%) of the total recovery obtained by settlement or judgment after suit was filed as payment for her legal services on their behalf. Mr. Tidd was insured by Amica Mutual Insurance Company (hereinafter Amica ). Nationwide Insurance Company insured Mr. an d Mrs . Butler. After consultation, the Butlers informed the Respondent that they would agree to a sum of not less than ten thousand dollars ($10 ,000.00) to f ully settle their claims against Mr. Tidd and Amica. Respondent, on behalf of the Butlers, and Amica discussed settlement of the claims. The Respondent demanded over $20,000.00 for settlement of the Butlers personal injury claim. Amica, in turn, extended a settlement offer of $9,500.00. Unfortunately, Respondent and Amica were u nable to reach a settleme nt. During the period of representation, however, the Respon dent success fully n egotiated the settlement of the property damage claim resulting from the motor v ehicle a cciden t. On August 12, 2002, the Respondent filed a Co mplaint, Butler v. Tidd (hereinafter Butler Comp laint ), in the Circ uit Court for Prince George s County against Mr. Tidd for negligence and loss of consortium and Nationwide Insurance 4 Company for uninsured/underinsured motorist and personal injury protection claims on behalf of Mr. and Mrs. Butler. The Butler Complaint was filed two months before the Statute of Limitations tolled. Simultaneously with the submission of the Butler Complaint, the Respondent submitted another Complaint, Brown v. Austin (hereinafter Brown Complaint ), in the Circuit Court for P rince Ge orge s Co unty M aryland. Although the captions on these two Complaints were different, the C lerk s Office mistakenly assigned the two Complaints the same case number - CAL02-19945. The Bro wn Co mplaint w as the only Complaint that the Clerk s Office showed a record for having been p roperly file d and d ockete d. The Respondent did not recognize the mistake made by the Clerk s Offi ce until, o n or abo ut, October 28, 2002, when she received a letter from M rs. Kimberly Massey, an adjuster with Amica, acknowledging receipt of the Butler Complaint and requesting verification of the date in which the summons and Complaint was filed in the Butler case. The letter also advised the Respondent that the case number provided did not correspond with the plaintiffs and defendants in the Butler Com plaint. Respondent acknowledges that two checks w ere issued, by her office, in the amount of $100 on August 12, 2002: one check, Check No. 1413, drawn from her escrow account for the 5 filing of the Brown Complaint and another check, Check No. 1910, drawn from her operating account for the filing of the Butler Complaint. Check No. 1413 was negotiated by the Prince George s County Circuit County Clerk s Office on August 15, 2002. The Respondent received a returned copy of Check No. 1413 w ith her August 2002 bank statement. Check No. 1910, which was written for the filing fee s associated with the Butler Complaint was never negotiated by the Clerk s Offic e. Upon learning of this error, on or about, October 28, 2002, Respondent contacted the Clerk s Office to determine what actions would be necessary to correct the error. The Responden t was advised by the Clerk s Office that she needed to submit the file stamped copy of the Butler Complaint and the cancelled check for the filing fee. It was at this time that Respondent became aware that Check No. 1910 was never negotiated. The Sta tute of Limitations had expired on the Butlers claim a t that time . On November 9, 2002, th e Respo ndent sen t a letter to the attorney for Amica, Timothy E. Howie, Esquire, indicating that the Statute of Limitations h ad passed on the Bu tlers claim before the error was brought to her attention and he could close [his] file on this claim. Thereaf ter, the Resp ondent ag reed to sign and present to the court a joint Line of Dismissal With 6 Prejudice in the Butler case. This line of dismissal was filed on Januar y 9, 2003 . The Respondent did not advise Mr. or Mrs. Butler of the error that occurred with the filing of their Complaint. The Respondent did not advise Mr. or Mrs. Butler that their case was dismissed with prejudice and that the Statute of Limitations now barred their claim. Furtherm ore, the Re sponden t did not con sult with either Mr. or Mrs. Butler regarding the dismissal of their Complaint with prejud ice nor did s he receive their consen t to dismiss their claim . The Respondent then decided that she would not disclose the dismissal of the claim to her clients, the Butlers. Rather she wou ld attempt to make them whole by paying them what she thoug ht would placate them and wh at she perce ived to be fair to th em, i.e., the sum of $10,000.00 out of her own personal funds. It was also at this time that the Respondent sought the legal and ethical advice of N. Frank W iggins, Esquire (herein after M r. Wigg ins ). Mr. Wiggins, at the time, was a partner at the law firm of Venable, Baetjer, Howard and Civ iletti. He is a 1972 graduate of the U niversity o f Mic higan L aw Sc hool. He taught at Northwestern U niversity Law School for three years. The Respondent worked for Mr. Wiggins at his previous law firm, Cohn and Marks, fo r approximately four and one-half years. 7 Over the years, the Respondent and Mr. Wiggins have maintained personal contact with one another, often consulting with each other on legal matters. In addition, Mr. Wiggins represented the Respondent in Attorney Grievance Commission v. Pennington, 355 Md. 61, 733 A.2d 1029 (1999). Mr. Wiggins is not admitted to practice law in the State of Maryland. He is only admitte d to pra ctice law in the D istrict of C olumb ia. The Respondent advised Mr. Wiggins of the events that transpired and soug ht his counsel and advice on her plan to pay the Butlers from her own person al fu nds. Specific ally, Respondent sought reassurance from Mr. Wiggins that her payment to her clients out of her personal funds and her nondisclosure of the facts would not in any way viola te any laws or rules of ethic al conduc t in Maryland, or otherwise cause any problems for her or the Butlers. After researching the matter, Mr. Wiggins opined incorrectly to the Respondent that no disclosu re was require d. On February 6, 2003, the Respondent met with Mr. and Mrs. Butler. During this meeting, the Respondent presented the Butlers a document entitled Statement of Settlement. The Respondent did not disclose to the Bu tlers that the check they would receive would not come from the settlement of their case but, instead, directly from the Respondent s own funds. The Statement of Settlement presented to the B utlers was derived 8 from a form that Respondent customarily utilized when she disbursed funds obtained through settlement of claims with third parties for the benefit of her clients. In fa ct, the Butlers were presented with a similar Statement of Settlement in September 29, 1999, rel ating to their se ttlem ent o f the prop erty damage claim w ith Am ica. The Statement of Settlem ent presented to the Butlers on Febru ary 6, 200 3, although substantially similar to the September 29, 199 9 statem ent, con tained tw o mod ification s. The lines designating Insurance Company and the Personal Injury Claim were purposefully omitted by the Respondent from the Statement of Settlement. The Statement indicated that the Respo ndent earned and received $ 4,000 in attorney s fees and $41.65 in expenses, and that $1,828.92 was deducted from the Client s Net Proceeds for medical expenses and $375 was deducted for Gary Butler for his loss of consortium claim, for a ba lance o f $3,75 3.43 to M rs. Butle r. After consultation and cons ent from Mr. and Mrs. Butler, the Responde nt attempted to reduce Mrs. Butler s medical expen ses. On May 9, 2 003 an d Aug ust 14, 2003, th e Respondent sent letters to Metro Orthopedics & Sports Therapy (hereinafter Metro O rthopedics ) requesting a reduction of its invoice because [u]nder the terms of settlement, offered by the third party, Ms. Butler will receive virtually no compensation 9 for her injuries if the subject invoice is not reduced. In all, Mrs. Butler s outstanding medical bills of $1,828.92 were reduced by $160 of which 66 2/3% of this amount was paid to the Butlers. Mrs. Butler testified at the hearing in this case on December 8, 2004 tha t she believe d that, based on the Statement of Settlement, her case was still viable and that her case had settled with Amica and the check she received in the amount of $3,753.43 was originally from Amica. Nevertheless, Mrs. Butler, even after being apprised of the situation, stated she was satisfied with the services the Respondent provided and that she would retain he r to perf orm leg al servic es in the future, if neede d. After investigating the matter, the Attorney Grievance Commission through B ar Coun sel filed a Petition for Disciplinary Action against Respondent. This Court discovered at the hearing on December 8, 2004 that this matter was brought to the attention of the Attorney Grievance Commission through a Com plaint file d by Am ica M utual In suranc e Com pany. IV. Conclusions of Law Respo ndent, without disputing the material facts of the case, testified that she (1) did not recognize the error made by the Clerk s Office until after the Statute of Limitations had expired on th e Bu tlers Com plain t; (2) did n otify Amica s 10 attor ney, Timothy H owie, to close his file o n the Butle rs Claim and then without consulting with the Butlers entered into a Joint Line of Dismissal with Prejudice on their claim; (3) did not notify the Butlers that the Statute of Limitations had expired and that they no longer had a viable claim; (4) presented the B utlers with a Statement of Settlement and a settlement check paid out of her own funds; and (5) sent a letter to Metro Orthopedics that represented that there was a settlement in Mrs. Bu tler s claim in an effort to reduce her medical bills. Therefore, the factual predicate for this Petition is established by clear and convincing evidence. The specific violations of the M aryland Lawyer Rules o f Prof essiona l Cond uct alleg ed are a ddress ed belo w. A. Rule 1.1 Competence Petitioner complains that the Respondent was incompetent in ensuring that the Butler Complaint was independ ently filed and d ocketed w ith the Court. Petitioner avers that thoroughness and preparation are necessary in order to competently represent a client and that proper management of case files is include d in that requ irement. Furthermore, Petitioner contends that the Respondent should have had a proper system in place to process client matters and management of her files, including assuring the proper filing of Complaints. The Petition er suggests that, if such a system were 11 in place, the R esponde nt would have realize d that the parties recorded b y the Clerk s O ffice in the Butler Complaint did not correlate with that in the actual C omplaint itse lf. She wo uld also have discovered on her own that the Butler Complaint was never properly filed and docketed by the Clerk s Office. In addition, Respondent would have been aware that the check her office issued to the Clerk of the Court for the filing fee of the Butler Complaint was not negotiated. If Respondent had noticed these irregularities, she might have clarified the reco rd of the filing of th e Butler C omplaint p rior to the expiration of the app licable S tatute of Limitat ions. Respondent argues that the clerical error by the Clerk of the Circuit Court was not a legal mistake by the Respondent and that there is no ev idence in th e record tha t would su ggest that a minor personal injury case was beyond the competency level of the Re spond ent. This Court agr ees with the Respondent on that limited point. Rule 1.1, however, is not limited in scope to legal knowledge and skill. Specifically, Rule 1.1 provides that [c]ompetent representatio n requires th e legal kno wledge, sk ill, thoroughness and preparation reasonably necessary for the represe ntation. (Empha sis added). [ W]heth er the representation the lawyer giv es is incom petent or is m erely careless or negligent depends upon what reasonably is necessary 12 in the circu mstanc es, i.e., the facts and circumstances of the particular case. Attorney Grievance Commission of Maryland v. Kem p, 335 M d. 1, 10, 6 41 A.2 d 510, 5 14 (19 94). This Court finds in this case that, if the Petitioner had maintained an appropriately efficient and reliable system to process her client s matter and manage her case files, the Clerk s Office error would have been discovered prior to the Statute of Limitations expiring. The failure of the Respondent to notice that the Butler Complaint and the Brown Complaint w ere assigned the same case number and that the check from the Butler Complaint was not negotiated by the Clerk s Office was a result of no t having such a system in place in her office, not merely negligent or careless oversight in this particular case. [T]he thoroughness and preparation reasonably necessary for competent representation includes the proper management of case files. Attorney Grievance Commission v. O ber, 350 Md. 616, 63 0, 714 A .2d 856 , 863 (1 998). Therefore, this Court co ncludes tha t the Petitioner established by clear and c onvincing evidence that Respondent exhibite d incom petenc e in han dling th e Butle rs case . B. 1.2 Scope of Representation Rule 1.2 provides that [a] lawyer shall ab ide b y a client s decisions concerning the obje ctives o f repres entation , . 13 . . and, when appropriate, shall consult with the client as to the means by which they are to be pursued. The lawyer shall abide by a client s decision whether to accept an offer of settlement of a matter. Initially, the Respondent was given a clear directive by the Butlers to seek not less than $10,000.00 as settlement of their claims. M s. Penning ton pursue d this amou nt during the negotiations with Amica b oth before and after the filing of the Butler Complaint. Despite the Respondent s efforts, the nature of the Butlers claim changed after the Clerk s Office error was discovered, the Statute of Limitations had run on their claim, and the dismissal of their claim without consultation or consent of the Butlers. A t this point, the P etitioner is corre ct in contending that the personal injury claimed changed to a possible malpractice claim against the Respondent. Mrs. Butler testified and Respondent agrees that settlement for $10,000.00 was to be with Amica. The Butlers were never provided the necessary information to leap to the conclusion that they wou ld have settled with the Respondent in a malpractice suit for the same a moun t. The Respondent did not and could not rely on the Butlers decision to accept an offer of settlement for $10,000.00 as a means of making her clients whole because there was no settlement offer to be accepted. The Butlers clearly did not give 14 the Respondent the authority to settle a possible malpractice claim against her because they were not alerted to the facts that would give rise to such a claim. For these re asons, this Court concludes that Petitioner established by clear and convincing evidence, that Respondent violated this Ru le. C. Rule 1.3 Diligence The Petitioner contends that the Respondent was not diligent in her representation of the Butlers because of her failure to assur e prope r filing o f the B utlers C ompla int. The Respondent argues that the only lack of diligence is the failure to discover the lack of diligence of the employee of the Clerk s Office in carrying out h is or her appointed duties. Further, the Respondent argues that at most the failure to make this discov ery can b e chara cterized as negl igent or careles s. Rule 1.3 requires the la wyer to act w ith reasonab le diligence and promptness in represe nting a client. This Court finds that t he fa ilure to discov er the error made b y the Clerk s Office was in fact a violation of Rule 1.3. It is the respon sibility of the attorney to en sure that the C omplaints th ey file on behalf of the client are filed p roperly. See Attorney Grievance Commission v. Gran ger, 374 M d. 438, 8 23 A.2 d 611 ( 2003) . 15 In this matter, Mrs. Butler suffered medical conditions that required that settlement neg otiations be d elayed until a determination was made as to whether or not those medical conditions were the result of the motor vehicle accident that Mrs. Butler w as invo lved. However, once suit was filed the Respondent was aware of the fact that the Statute of Limitations would soon be expiring. The Respondent had an affirmative duty to ensure that the Complaint was properly filed and docketed and not allow the Statute of Limitations to expire on their claim . Thus, the Petitioner has proven through clear and convin cing ev idence that the R espon dent vio lated this Rule. D. Rule 1.4 Communication There appears to be no dispute that the Respondent violated Rule 1.4(a). The facts clearly indicate the Respondent did not disclose to her clients the error made b y the Clerk s Office, that their case was dismissed with prejudice after the Statute of Limitations had expired, and that they no longer had a viable perso nal injury claim. T hese und isputed facts alone provide clear and convincing evidence to this Court that Respo ndent v iolated R ule 1.4( a). Howev er, there is a dispute as to whether the Respondent violated Rule 1.4(b). The Respondent contends 16 that, because the Butlers had stated that they would be satisfied to settle their claim for $10,000.00, no additional information was ethically required to be imparted to the Butlers to allow them to make in formed d ecisions reg arding the s ettlement. Th is Court disagrees. The Butlers did not know the circumstances surrounding their case or the source of the purported settlement checks. The Butlers assumed that the settlement checks were from Amica. The Respondent never disclosed the actual source of the funds or the true circumstances and status of their case after it was d ismisse d with p rejudice . The proper course of action would have been for the Respondent to disclose to the Butlers the status of their case and advise them to seek independent counsel. Only in this situation would the Butlers have been reasonably informed to make an informed decision in this mat ter. This Court therefore concludes by clear and convincing eviden ce that b oth pro visions of Ru le 1.4 w ere viola ted. E. Rule 1 . 7(b) Con flict of Intere st: Gene ral Rule A conflict of interest arises when the econom ic interests of a lawyer are at odds with those of the client. See Attorney Grievance Commission v. R oberso n, 373 Md. 328, 818 A.2d 1059 (20 03). The R esponde nt provides , by way of exa mple in her brief, the most obvious situation where a lawyer purp orts to 17 represent both sides in a dispute. W hile this is the most obvious and prob ably the most c ommo n, it does not present a co mplete picture of the con flicted relation ships the Rule a ddress es. See Rule 1.7 C omme nts. The initial engagement of the Responden t by the Butlers did not presen t a conflict of interest. How ever, an eco nomic conflict of interest between the Respondent and the Butlers arose as soon as the Butlers Comp laint was dis missed w ith prejud ice. The Respondent argues that a conflict occurs when an event is economica lly detrimental to a c lient is econo mically beneficial to the lawyer. That is correct and this case provides an illustration of such a situation. The Butlers were injured because their lawyer never provided them the information necessary to determine if they wanted to accept a settlement offer from the Respondent or pursue their claim against her through a legal malpractice action. The Respondent was benefitted economically because she avoided the costs and expenses of defending a possible malpractice claim that was availab le to the B utlers. Despite the Respo ndent s fa ilure to acknowledge a possible malpractice claim, the fa ct remains that, once the Joint Dismissal was filed in this case, the malpractice claim became a reality. The Respondent s successful attempt to placate the 18 Butlers by providing what appeared to be a gross recovery of $10,000.00 from her own pe rsonal fun ds is not suf ficient to eliminate, or even mitigate , the con flict. This cannot represent the amount that would have been recovered in a malpractice claim. The Respondent further argues that, because the Butlers received what they anticipated, there was no injury. The fact remains that the Butlers were deprived of the potential malpractice claim and that, in this Court s view, is a substantial injury to the clie nt. See Graves v. State of Maryland , 94 Md.A pp. 649 , 619 A .2d 123 (1991 ). The Respondent s argument is further w ithout merit because even if she did not believe a conflict of interest existed, under the Rule she had an affirmative duty to disclose the facts to the client, advise them of their right to seek independent counsel, and obtain a consen t before rep resentation o f the clients could proceed any further. There is no evidence in the record that refle cts that th ese ma ndates of the R ule we re follo wed. This Court concludes th at there is clear and convincing eviden ce that th ere wa s a viola tion of R ule 1.7. F. Rule 1.16(a)(1) This Rule merely provides that a law yer shall not represent a client or, w here repres entation ha s comm enced, sha ll 19 withdraw from the representation of a client if the representation will result in violation of the Rules of Professional Conduct or other law. F or the re asons p reviou sly stated, Respondent clearly violated this Rule because she failed to withdraw from representation of the Butlers after her representation gave rise to their cau se of ac tion aga inst her. G. Rule 8.4 M isconduct The Petitioner complains that the Respondent has violated Rule 8.4(c) and 8.4(d ). Respectively, these provisions find that a lawyer engages in professional misconduct if a lawyer: engage[s] in conduct involving dishonesty, fraud, deceit or misrepresentation and engage[s] in conduct that is prejudicial to the administration of justice. The Petitioner alleges that the Respondent, in an attempt to make it ap pear like the p urported se ttlement checks were from Amica, prepared and presented a Statement of Settlement that was almost identical to the Statement of Settlement presented to them ba ck in 1999 for the settlem ent of their property damage claim. This, the Petitioner adds, i s a perfect example of an overt act designed to mislead the clients. It is undisputed that the Respondent never disclosed the facts surrounding the dismissal of the case to the Butlers, that the Respondent never communicated to them the source of the 20 funds used to make them whole and, in addition, that the Respondent negotiated a reduction of Mrs. Butler s medical expenses by representing to certain health care providers that there w as a pos sible settl emen t in this m atter. The Respondent contends that her actions were not intentional or willful and thus could not been v iewed to v iolate Rule 8.4(c) and (d). T his Court sim ply does not b elieve that Respondent did not intend the natural consequences of her action and nonaction, especially when the Respondent testified that she never wanted the Butlers to become aware of the source of the funds or the status of their claims. Intentional fraud can be sustained by means of concealmen t. Attorney Grievance Commission v. Clem ents, 319 Md. 28 9, 572 A.2d 17 4 (1990); See also Attorney Grievance Commission v. P inkney , 311 Md. 137, 532 A.2d 13 67 (1987) (Resp ondent prepared fictitious pleadings to give her c lient the impre ssion that her case was filed in court, when in fact, she had failed to do so.) The act of concealment is exactly the condu ct of the R esponde nt in this matter. The Respondent argues an independent defense of reliance of counsel to not only the misconduct claims but also the conflict of interest claim. T he Resp ondent co nsulted w ith Mr. Wiggins and wa s incorrectly adv ised by him tha t she could proceed with providing the Butlers $10,000.00 from her own 21 funds without disclosing to the Butlers the source of the funds or the circumstances of the ir distribution. To support this contention, the Respo ndent relies o n the follow ing cases: United States v. Peter son, 101 F.3d 375, 381 n.4 (5th Cir. 1996) and Manown v. Ada ms, 89 M d.App . 503, 51 4, 598 A .2d 821, 826 (1991 ). How ever, rel iance o n these cases is m isplaced . In Peters on, the Court clearly h eld that goo d faith reliance on counsel is not a defense to securities fraud. It is simply a means of de monstrating good faith and repres ents possible evidence of an absence of any intent to defraud. 101 F.3d at 3 82. In Adam s, the Court s pecifically states th at [i]t is true that reliance on an attorney s advice may, in a civil action, negate wrongd oing wh ere the adv ice has bee n based o n full disclosure of the relevant facts. 78 Md.App. at 514, 598 A.2d at 826 citing Derby v. Jenkin s, 32 Md.App. 386, 391, 363 A.2d 967 (1967). The Court continues, however, that [t]his rule allows lay peop le to rely on an attorney s ability to view the facts calm ly and disp assio nate ly and to jud ge the facts in their legal bearings. (Emphasis added). Adams at 78 Md.App. at 514, 598 A.2d at 826 (citing Derb y v. Jen kins, 32 Md.App. 386, 391, 363 A.2 d 967 (19 67)). It is clear that in these cases the Court was not presented with a situation where an attorney relied on the advice of counsel and that these cases do not deal 22 with disciplin ary action s. Furthermore, the bar is set higher for an attorn ey then a la yperson . Attorneys admitted to practice in the state of Maryland are deemed to know the Rules of Professional Conduct and have the obligation to act in conformity with those standards as a requirement to practice law. Attorney Grievance Commission v. Stein, 373 Md. 531, 543-544, 819 A.2d 372, 379 (2003) (citing Attorn ey Grie vance Com missio n v. Jete r, 365 Md. 279, 292, 77 8 A.2d 390, 39 7 (200 1). This Court could find no Maryland case law in which good faith reliance on advice of counsel was an affirmative defense in a disciplin ary action . Howe ver, the Co urt of Ap peals has rejected the defense of a respondent s claim of reliance on the advice of an ethics opinion or a certified public acco untant. See Attorney Grievance Commission v. Greg ory, 311 Md. 522, 536 A.2d 64 6, 651 (19 88); Attorney Grievance Commission v. Gavin, 350 Md. 176, 711 A.2d 193, 202 (1998). As such, the Respon dent, in this Court s opinion cannot rely on the good faith reliance on the defense of couns el as this is not the rule in Marylan d. Some jurisdictions h ave affirm atively held that th e good faith reliance on the advice of counsel is never defense in a disciplinary action. See Pe ople v. K atz, 58 P.3d 1176, 1187 (Co. 2002) ( It is the individu al attorney s duty an d obligation to 23 comply with Rules of Professional Conduct. The attorney may not delegate that duty or responsibility to another under the umbrella of advice of counsel and thereby create a defense to a violation of those rules. ); Conduct of Gatti, 330 Or. 517, 526, 8 P.3d 966, 972-973 (O r. 2000) ( advice from disciplinary counsel is a not a defen se to a disciplinary violation. ) Furthermore, the Respondent s argument is further negated since the advice relied upon was from Mr. Wiggins, an attorney with no familiarity with the Maryland Rules of Professional Conduct and who is not admitted to p ractice law in Marylan d. Fin ally, the Respondent contends that even if good fa ith reliance on the advice of counsel is not a complete defense, then it should stand as a mitigating factor. The factors recognized by Maryland Courts as mitigating circumstances in disciplinary matters are: absence of a prior disciplinary record; absence of a dishonest or selfish motive; personal or emotional prob lems ; time ly good faith effor ts to make restitution or to rectify consequences of miscond uct; full and free disclosu re to disciplinary board or cooperative attitude toward proceedings; inexperience in the practice of law; chara cter or reputation; physical or mental disability or impairme nt; delay in disciplinary proceedings; interim rehabilitation; imposition of other penalties or sanctions; remorse; and finally, remoteness of prior of fenses . Attorney Grievance Com missio n v. Tho mpso n, 367 Md. 315, 330, 786 A.2d 763, 772-73 (2001) (quoting Attorney Grievance 24 Commission v. Jaseb , 364 Md. 464, 481-82, 773 A.2d 516, 526 (2001) (in turn quoting Attorney Grievance Commission v. Glenn, 341 Md. 448, 488-89,671 A.2d 463,483 (1996) (citations omitted )). It is the provin ce of this C ourt to make findings in regards to facts that it be lieves mitigate in respect to the conduct of a respondent in attorney discipline m atters. Attorney Grievance Commission v. Van derlind e, 364 Md. 376, 384, 773 A.2d 463, 467 (2001). M oreover, this C ourt is to bring what it believes to be mitigating circumstances, in respect to the conduct involved, to the attention of [T he Court of A ppeals], not to offer its views as to whether any such circumstance, or the lack of any such circumstances, justifies any lesser or greater sanctio n. Vand erlinde , 364 Md. at 384, 773 A.2d at 467. In discharging this r espo nsib ility, this Court brings to the attention of the Court of Appeals its finding that the Respondent in good faith relied on the incorrect advice provided to her by Mr. Wiggins and, because of that reliance, did not impart to the Butlers information about the status of their claims or the source of the funds that they received. Furthermore, during the hearing, Respondent displayed a high degree of remorse for her actions. These actions should therefore be considered as mitigating factors when fashioning any sanction. 25 This Court concludes that clear and convincing evidence was presented that the Res ponden t violated this R ule 8.4(c) and (d). Furthermore, the Respondent has f ailed to sh ow b y a preponderance of the evidence that good faith reliance on the advice of counsel is an affirmative defense to the claims of misconduct and conflict of interest. This Court does conclude that the good faith reliance on advice of counsel as a mitigating factor was sufficiently proven by the preponderance of the eviden ce. V. Summary Respondent violated seven separate Rules of Professional Conduct. Each of these violations compounded a situation resulting from the Respondent s failure to notice an error made by the Clerk s Office for Circuit Court for Prince George s County. Nothing in this proceeding evidenced Responden t s lack of knowledge or understanding of the law, or her inab ility to repre sent clie nts com petently. Respondent has practice d alone fo r a consider able period of time. W hile the Co urt of Ap peals mus t determin e whether and to w hat extent the Respondent is deserving of discipline, your Cha ncellor respe ctfully suggests that a suspension of 120 days and a p robationary period under the tutelage of a capa ble lawyer w ith strong ad ministrative sk ills 26 would prove beneficial to the Responden t and her future clients. II. Both parties have filed exceptions to the findings and conclusion of the hearing judge. The hearing judge s findings of fact are prima fac ie correct and will not be disturbed unless clearly errone ous. Attorney Grievance v. Ellison, 384 M d. 688, 7 07, 867 A.2d 259, 270 (2005). When the find ings are not clea rly errone ous, ex ception s will be overru led. Id. Our review is de novo as to the hearing judge s concl usions of law . Id. A. Respondent s Exceptions The Circuit Court found that respon dent vio lated R ules 1.1 Competence, 1.2(a) Scope of Representation, 1.3 Diligence, 1.4 Communication, 1.7(b) Conflict of Interest, 1.16(a)(1) Withdrawal from R epresentatio n and 8.4(c ) and (d) M isconduc t. Respond ent excep ts to these findings. Responden t s overarchin g defens e before th is Court, and underlying the most serious of her exceptions, is that she relied on the advice of counsel and that all charges should be dismissed. The hearing judge, notin g that this Court has not addres sed the app licability in attorney disciplinary proceedings of the affirmative defense o f reliance on advice of counsel, began with the black letter propositio n that all attorne ys admitted to p ractice in Maryland are presumed to know the law, and concluded that such a defense is not available to an attorney in disciplinar y actions. Determining that Maryland law does not allow for an affirmative defense of reliance on advice of counsel in attorney discipline matters, the hearing judge also found that respondent could not rely on the defense because the advice she relied upon was 27 from an attorney with no familiarity with the Maryland Rules of Professional Conduct and who is not adm itted to p ractice la w in M aryland. The closest this Court has come to addressing reliance on advice of counsel as a defense in an attorney grievance case is in Attorn ey Grie v. Com n v. Gr egory, 311 Md. 522, 536 A.2d 64 6 (19 88), whe re the atto rney argued that his misconduct should be excused because he acted in reliance upon a formal ethics opinion of the Committee on Ethics of the Maryland State Bar Association . Although this Cou rt rejected Gregory s argument because he, in fact, was not relying upon an opinion that dealt with the circumstances of his miscond uct, we went further and stated that an opinion of the Ethics Committee of the Bar Ass ocia tion is adviso ry, and is not binding on this Court. Id. at 531-32, 536 A.2d at 651. We stated as follows: As a practical matter, however, where an attorney can demonstrate reasonable reliance upon an ethics opinio n on poin t, that fact is likely to hav e a significan t effect on the initial decision of the Attorney Grievance Commission concerning the filing of a complaint, as well as upon the determination or disposition of those charges that may be filed. Id. Finally, we pointed out that this general principle may be modified by rule or statute, as is the case with Md. Rule 1231 creating a Judicial Ethics Committee, now encompassed within Md. R ule 16-81 3, which p rovides pro tection to a jud ge who complies w ith an opinion issued b y that com mittee. Id. at 531 n.6, 536 A.2d at 651 n.6. Maryland law does recognize the defense of reliance on the advice of counsel in some cases. See, e.g., Brashears v. Collison, 207 Md. 339, 349-51, 115 A.2d 289, 294-95 (1955 ). Relying on Brashears, the Court of Special Appeals, in VF Corp. v. Wrexham Aviation, 112 Md. App. 7 03, 686 A.2d 6 47 (19 96), aff d in part and rev d in part, 350 Md. 693, 715 A.2d 188, held that reliance on advice o f counsel is a defense in a fraud case as it bears on scienter. VF Corp., 112 Md. App. At 716, 686 A.2d at 654. Scienter is the intent to defraud or 28 deceiv e. Id. at 715, 686 A.2d at 653. Writing for the unan imous panel, Chief Judge Robe rt Murphy, later Chief Judge of this Court, stated as follows: To prevail on an advice of coun sel defense, howe ver, appellants were required to persuade the jury (1) that they communicated to counsel all facts they kne w or reaso nably should have known; and (2) that they relied in good faith upon the adv ice give n. Id. at 716, 686 A.2d at 654; see also United States v. Butler, 211 F.3d 826 , 833 (4th Cir. 2000). Common expressions of the necessary elements to establish an advice of counsel defense have fleshed out the requirements stated by the VF Corp. court as follows: To establish the a dvice-of-c ounsel de fense, the p arty raising it must show that: (1) he is acting in good faith in the belief that he has good cause for his action and is not seeking an op inion in order to shelter himself; (2) he has made a full and honest disclosure of all the material facts within his knowledge or belief; (3) he is doubtful of his legal rig hts; (4) he ha s reason to know that his counsel is competent; (5) he honestly complied with his counsel s a dvice; and (6) his coun sel is of such training and experience that he is able to exercise prudent judgment in such m atters. G.S. E nterpris es, Inc. v . Falm outh M arine, In c., 571 N.E.2d 1363, 1371 (Mass. 19 91); see also Liss v. United States, 915 F.2d 287, 29 1 (7th Cir. 1990). The affirmative defense of reliance on the advice o f counse l arises most c ommo nly in tax cases and in cases which require specific intent. Many courts have held that the defense is only available as agains t specif ic intent c rimes. See e.g., United States v. Cross, 113 F. Supp. 2d 1253, 1264 (S.D. Ind. 2000) (holding that advice of counsel is no defense to the general intent crime of operating an illegal gambling business because the defen dant s specific intent or kno wledge w as not an es sential eleme nt of crime ); United States v. Dyer, 750 F. Supp. 1278, 1293 (E.D. Va. 1990) (stating that [i]n general, an advice of counsel defense applies only where the violation requires proof of specific intent, that is, proof that a defendant has actual knowledge that his condu ct is illegal ); United States v. Soares, 998 29 F.2d 671 (9 th Cir. 1 993) (affirming the district court s decision that an offense under 18 U.S.C. ยง 1954 was not a specific intent crime and, therefore, the defendant could not offer an advice of counsel defense); United States v. Carr, 740 F.2d 339, 346 n.11 (5th Cir. 1984) (stating that [s]trictly speak ing, good f aith reliance o n advice o f counse l is not really a defense to an allegation of fraud b ut is the basis for a jury instruction on whether or not the defendant possessed the requisite specific intent ). The re ason give n as unde rlying this limitation is that the defense is deemed relevant to negate proof of a defendant s intent to violate th e law. The defense of reliance on advice of counsel was raised by an attorney in a disciplinary matter in Colora do. See People v. Katz, 58 P.3d 1176 (Col. 2002). The attorney was charged w ith violating C olo. R. Prof . Conduc t 8.4(c), based on allegatio ns that he withdrew money from a joint account without the knowledge or consent of the firm with whom he collabo rated. Katz argued, inter alia, that he relied on the advice of counsel that he could withdraw the funds in question, and that in so doing, he could not be held to have violated the Ru les of P rofessi onal C onduc t. Id. at 11 87. D isbarring the e rran t atto rney, the Colora do Su preme Court r ejected his argu ment, o n two g round s. First, it is presumed that Katz as an attorney himself understands and will adhere to the Rules of Professional Conduct. It is the individual attorney s duty and obligation to comply w ith the Rules of Profe ssional Co nduct. The attorney may not delegate that duty or responsibility to another under the umbrella of advice of counsel and thereby create a defense to a violation of those Ru les. Second , the facts of this case establish ed that Ka tz withheld material information from Wollins du ring the discu ssion in which Katz contends the legal advice was provided. Absent full, fair and honest disclosure of all known relevant information concerning the issue, the advice of cou nsel de fense is not ava ilable. Id. at 1187 (citations omitted). 30 Responden t s reliance on advice of counsel from Mr. Wiggins, a lawyer not admitted to practice in the State of Maryland, is not a defense to her violations of Rule 8.4 (c) and (d) Miscon duct, or to Rule 1.7(b) Conflict of Interest, or, for that matter, any of her conduct in this case. As a member of the Bar of this State, respondent took an oath to comply with the Rules of Professional Conduct and to act in c onfor mity with those sta ndards . See Attorney Grievance v. Stein, 373 Md. 531, 542, 819 A.2d 372, 379 (2003). The hearing judge found, by clear and convincing evidence, that she neve r disclosed th e true facts o f the dismiss al to her clients, that she never communicated the source of the funds to her clients, and that she created and prese nted a settlem ent sheet to her clients that could only have created an impression by them that the case had settled. As the Colorado court stated well, an attorney may not delegate the responsibility to another under the umbrella of advice of counsel and thereby create a defen se to a v iolation of the R ules of Profe ssional C onduc t. Every lawyer in this State should know that the misrepresentation to the client that occurred in this case was a v iolation of the R ules. Moreover, even if the defense were applicable generally to attorney discipline matters, respondent s attempt to raise the defen se would fail. First, misrep resentation u nder Ru le 8.4(c) and conduct prejudicial to the administration of justice under (d) do not requ ire specific intent. Second, respondent consulted a lawyer not admitted to practice law in this State, and, given her deceitful conduct, she could not have believed, in good faith, her conduct was prop er. Finally, a predic ate for estab lishing the de fense is that th e party asserting the defense establish that she has made a full and honest disclosure of all the material facts within her knowledge or belief. There is absolutely no evidence in this record, either from respondent or Mr. Wiggins, that respondent advised Mr. Wiggins that she 31 intended to present a statement of settlement form to the clients.9 As the hearing judge found, this form, similar to the one respondent used with this client in a prior case, clearly created an impression that the case was settled. This misre presentation to the client is at the heart of respondent s miscond uct, and ther e is no evide nce that M r. Wiggins a pproved this conduct. Moreo ver, even if he did, for th e reasons w e have state d, it would not be a defense to the Rule violations. 9 The transcript indicates that respondent told Mr. Wiggins of the following f acts during a telephone conversation: I told Mr. Wiggins that I represented Mr. Butler and Mrs. Butler in an automob ile accident. That I had filed suit in August of 1999. That I had learned from the in surance co mpany that th e suit was n ot accepted by the Clerk properly. That Mr. Butler had authorized or dir ected me to accept $10,000 to settle their respective claims. That the statute of limitations ran on September the 14th or 15th of [2002], and that I ha d decided that I wante d to pay them. And I shared with him a little bit about why (un intelligib le) . . . And I told him about that after the statute had expired. And that I wanted to make her whole. I wanted to make them both whole. And I wanted to know wheth er there was an ything w rong w ith that, g iving th em my m oney. Respondent testified as to the advice she received from Mr. Wiggins. He called me back and told me that, as I said, he had done a fair amount of research, actually, had read the Maryland Code Section on Professional Responsibility, the Rules. And ha d done, ha d read a lot o f the cases c ited in those Rules. And concluded that there was absolutely no problem, whatsoever, with my giving Mrs. Butler and Mr. Butler the money. And that was my main issue. That was one of the major one, or at least equal . . . And, two, that there was no reason, either, to disclose the source. That means that I was giving them the money. And anything related to this, the Clerk s error, and the conseq uence s that flo wed f rom the Clerk s error. Mr. Wiggins testimony as to the substance of the conversation with respondent conforms to respondent s testimony. His testimony made no reference to respondent s intent to present a State ment o f Settlem ent fo rm. 32 The argument underlying most of respondent s other exceptions is that the Butlers could not have filed a malpractice suit against he r, and, therefo re, she wa s not require d to disclose to the Butler s the true natu re of the se ttlement or to suggest tha t they retain independent counsel. Respondent argues that since the Butlers had determined their claims to be worth $10,000, the Butlers suf fered no d amage b y her $10,000 settlement with them. This argumen t fails to consider that the Butlers willingness to settle for $10,000 is not determinative of the valu e of their claim s. Respon dent, acting on the Butlers behalf, sought a settlement of $20,000, rejected Amica s $9,500 settlement offer, and filed a lawsuit seeking $100,000. Respondent could not determine the value of the Butlers claims unilaterally. We overrule these exceptions. Respondent excepts to the hearing judge s conclusio n that her letter to Metro Orthopedics seeking a reduction of medical charges stated that the Butlers had accepted a settlement. She claims instead that the letter stated that the Butlers had received a settlement offer. We overrule this exception. Although respondent did not represent that the Butlers had accepted a settlement, this fact is beside the point. Respondent s letter was written after the Butlers claim was dismissed, but she nonetheless referred to the settlement offer, and stated that a medical fee reduc tion will facilitate an expeditious resolution of the subject third party claim. Respondent excepts to the hearing judge s conclusion of la w that she had violated Rule 1.4(a). Responden t argues that her failure to disclose the clerk s error or the dismissal of the case was warranted because she feared that Mrs. Butler, a client with whom she had developed a friendship, would feel some remorse or discomfort in taking money from responde nt. Respondent relies upon the term reasonably informed in Rule 1.4, arguing that her dec ision no t to disclo se was reason able. 33 The Comment to Rule 1.4 discusses the appropriateness of withholding information. The Comment states as follows: Withholding information. In some circumstances, a lawyer may be justified in delaying transmission of information when the client wou ld be likely to react impru dently to an imm ediate communication. Thus, a law yer might withhold a ps ychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client. A lawyer may not withhold information to serve the lawyer s own interest or conve nience . . . . Respondent did n ot merely delay disclosure to the Butlers. Instead, she executed a settlement with them and, according to her testimony, intended that they not learn of the dismissal of the suit. Moreover, the Comment makes clear that a lawyer may not withhold information to serve the la wyer s own interest. As the hearing judge f ound, responden t s failure to provide the Butlers with the information regarding the dismissal deprived them of the information necessary to determine if they wished to pursue a malpractice claim against her. Her conduct violated Rule 1.4. Respondent presents several exceptions to the hearing judge s findings of fact. Respondent excepts to the hearing judge s description of settlement negotiations with Amica as basically corre ct but too ters e to convey the full flavor of the history it addresses. We overrule this exception . The hear ing judge is n ot required to set out all the fa cts in his findings and m ay select th ose dee med re levant a nd app ropriate . See Attorney Grievance v. Zdravkovich, 381 Md. 680, 694, 852 A.2d 82, 90 (2004) (quoting Attorney Grievance v. Stolarz, 379 M d. 387, 398, 842 A.2d 42, 48 (2004), for the proposition that the hearing judge as the trier of fact may elect to pick and choo se which eviden ce to rely upon ). Respondent excepts to the hearing judge s finding as to the timing of the filing of th e complain t. We accept respondent s correction and find that the complaint was filed on August 12, 200 2. Respondent excepts to the hearing jud ge s findin g that she did not consu lt 34 with the Butlers before seeking dismissal of their case with prejudice or advise them of her actions afterward s. Respon dent represents that the Bu tler case wa s not dismiss ed with prejudice, but rather the complaint and all pleadings were returned to the parties and the line of dismissal was never acted upon. We overrule this exception. Respondent was asked repeatedly at the hearing about the line of dismissal, and she never controverted this fact. In fact, she authenticated petitioner s exhibit no.14 as the line of dismissal, and it was received into eviden ce withou t objection. T he line of dismis sal, signed by res ponden t, is entitled LINE OF DISMISSAL WITH PREJUDICE and asks the clerk to enter the claim as dismissed WITH prejudice. R esponde nt excepts to two find ings related to respondent s decision to consult with Mr. Wiggins. The hearing judge s findings are not clearly erroneous and we overrule these exceptions. Respondent excepts to the hearing judge s finding that she purposefully omitted lines from the Statement of Settlement, arguing that she omitted those lines to avo id misleading the Bu tlers. The hearing judge s inferences drawn from the facts are not clea rly errone ous, an d we o verrule the exc eption. Fina lly, respondent excepts to the hearing judge s findings that Mrs. Butler testified that she believed that her case was still viable, that her case had settled with Amica, and that the check she originally received was from Amica. We accept respondent s correction and find that Mrs. B utler did not te stify to these sta temen ts. We note, however, that the hearing judge did not rely up on M rs. Butle r s belief s in any of its conc lusions of law . Rathe r, the hearing judge relied upon the undisputed facts th at respond ent did not d isclose the fa cts surrounding the dismissal of the case or the source of the funds. Additionally, the hearing judge relied upon respond ent s testimony that she intended for the B utlers to be unaware of the sou rce of th e fund s and th e status o f the ca se. 35 We grant respondent s exception as to Rule 1.1 Competence, and Rule 1.3 Diligence. The record indicates that the parties stipulated that the statute of limitations had run on the client s complaint before respondent discovered the filing error. Based upon this stipulation, the Circuit Court found that if the Petitioner had maintained an appropriately efficient and reliable system to process her client s matter and manage her case files, the Clerks s Office error would h ave been discovered prior to the Statute of Limitations expiring, and thus, respondent exhibited incompetence in handling the Butlers case. Re sponden t appears to have filed the complaint in the Butler case properly; it was the Clerk s Office error that resulted in the problem. Respondent s problem arose in her failure to detect that the check she gave to the Clerk s Office for the Butler complaint was not negotiated. While a better office system would have detected the problem, we do not think that such oversight or negligence constitutes sanctionable conduct under Rule 1.1. See Attorney Grievance v. Thompson, 376 Md. 500, 512, 830 A.2d 474, 481 (2003) (stating that a single mistake does not necessarily result in a violation of Rule 1.1, and may constitute negligence but not misconduct und er the rule ). Respondent clearly violated Rule 1.4 Com municatio n, Rule 1.7 (b) Conf lict of Interest, Rule 1.16 (a)(1) With drawal fro m Repre sentation, an d Rule 8.4 Miscon duct. B. Petitioner s Exceptions Bar Counsel excepts to the hearing judge s conc lusion that res ponden t s good fa ith reliance on advice of counsel as a mitigating factor had been proven by a preponderance of the evidence . Bar Cou nsel mainta ins that this conclusion is inconsistent with the hearing judge s findings o f fact and other conc lusions of la w. We d isagree and overrule this exception. Judge Platt heard the witnesses testify and had the unique opportunity to assess 36 their credibility. Although he rejected reliance on advic e of counsel as an affirmative defense to whether the Rules of Professional Condu ct had bee n violated, it is not neces sarily incons istent to f ind that r espon dent s c ontact w ith Mr. W iggins w as a mitig ating fa ctor. Bar Counsel also excepts to Judge Platt s conclusion that respondent displayed a high degree of remorse for her actions. At the hearing before the Circuit C ourt, respon dent did not express remorse for her misrepresentations and deceitful conduct. Respondent testified during cross-examination that I am saying I d id not wan t to mislead the cl ients in an y way, shape, form or fa shion. She als o testifie d that I d on t be lieve, M s. [Bar Coun sel], that I have told any untruths to the clients. So that s it. Her testimony constituted a continued denial of respon sibility. She repeate dly denied any disho nesty. We agree with Bar Counsel and grant the exception. III. Sanction We turn now to the app ropriate sanction. Bar Counsel maintains that respondent should be disbarred. We agree. In fashioning the appro priate sanction to be imposed, we are guided by our interest in protecting the public and the p ublic s c onfide nce in th e legal p rofessi on. Attorney Grievance v. Powe ll, 369 Md. 462, 474, 800 A.2d 782, 789 (2002). As we have often stated, the purpose of attorn ey disciplinary proc eedings is n ot to punish the lawyer, bu t to protect the public as well as to deter other law yers from engaging in simila r misco nduct. Attorney Grievance v. Ellison, 384 Md. 688, 714, 867 A.2d 259, 274 (2005). The public is protected when sanctions are imposed that are commensurate with the nature and grav ity of the violatio ns and the inten t with w hich the y were co mmitte d. Id. 37 Although responde nt violated R ules 1.2, 1.4 (a ) and (b), 1.7 ( b), and 1.16 (a)(1), it is the violations of Rules 8.4(c) and (d), and the conduct underlying those violations, that lead the Court to conclude that disbarment is the appropriate sanction. To reiterate, Rule 8.4 (c) and (d) provide as follows: It is professio nal miscon duct for a la wyer to: *** (c) engage in conduct involving dishonesty, fraud, deceit or misreprese ntation; (d) engage in conduct th at is prejudicial to the administration of justice[.] Responden t s misrepresentation[s] and deceitful conduct in concealing the true account of how she mishandled the Butlers claims, falsifying a supposed settlement of those claims with the insurer, intentionally misrepresentin g matters in n egotiations w ith third-party health care provid ers to reduce their charges to the Butlers, and concealing from the Butlers the facts that might have supported lodging a professional negligence claim against respondent, implicate the core responsibilities of truth and honesty expected of attorneys. As Judge Battaglia wrote for the Court in Attorney Grievance v. Angst, 369 Md. 404, 420, 800 A.2d 747, 757 (2002 ): We recently iterated the unparalleled importanc e of hone sty in the practice of law: Unlike matters relating to co mpe tenc y, diligence and the like, intentional dishonest conduct is closely entwined with the most important matters of basic character to such a degree as to make intentional dishonest conduct by a lawyer almost beyond exc use. Hon esty and dishonesty are, or are not, present in an attorney s charac ter. See Attorney Grievance Comm n v. Lane, 367 Md. 633, 646, 790 A.2d 621, 628 (2002) (quoting Attorney Grievance C omm n v. Vanderlinde, 364 Md. 376, 41 8, 773 A .2d 463 , 488 (2 001)). 38 Vanderlinde, involving the intentional financial misappropriation genre of conduct violative of Rule 8.4 (c), is a sem inal case, in tha t it sought to return som e measure of consiste ncy to the analysis of san ctions in inten tional dishon esty cases. After documenting the tortured and sometimes inexplicable all-over-the-ballpark array of sanctions in cases of attorney dishonesty that prec eded it, 3 64 M d. at 389 -413, 7 73 A.2 d at 471 -485, Vanderlinde endeavored to restore a principal, guiding star for the sanctions in such cases: Disbarment ordinarily should be the sanction for intentional dishonest conduct. Id. at 418, 773 A.2d at 488. Respondent was adm itted to the Bar of this State in January, 1989. She has had one prior disciplinary action in which she received a reprimand for violation of Rule 1.8(e). See Attorney Grievance v. Pennington, 355 Md. 61 , 78, 733 A.2d 10 29, 1038 (1999 ). Respondent offers little in the way of mitigation. As we ha ve disc ussed, supra, respondent did not express remorse f or her deceitful actions. Resp ondent s protestations of remorse ring hollow when placed next to her tes timo ny, during cross-examination by Bar Counsel at the evidentiary hearing, that, I don t believe, Ms. [Bar Co unsel], that I have told any untruths to the clients. So that s it. Likew ise, regarding the obviou s conflict of interest with her clients interests, respondent testified at the eviden tiary hearing: Ms. [Bar C ounsel], if you will help m e to und erstand . I really don t understand your claim of conflict of interest. To the extent respo ndent exp ressed rem orse, it is more in the nature of damage control than of sincere remorse. Any other evide nce of m itigation in this ca se is also insu ffic ient t o jus tify a sanction less than disbarment. Respondent s attempt to purchase a plenary indulgence with her own money is more indicative of a selfish plan to conceal than of a praiseworthy desire to make the client whole. Whether respondent acted to prevent her clients from knowing that they 39 had a potential malpractice claim ag ainst her, or whether she ac ted out of a desire to spare her ill client further anguis h, the profe ssion is harm ed whe n an attorne y intentionally misreprese nts matters to a client and behaves in the manner as did respondent. Although respondent did seek advice from Mr. Wiggins, who, unfortunately, gave her incorrect advice 10 , her choice of Mr. Wiggins s counsel does little to mitigate the severity of her misdeeds. Her consu ltation w ith Mr. W iggins, a n attorn ey with o ffices in Wash ington , D.C., and who is not admitted in Maryland, smacks of a lack of good faith in seeking an objective and reliable ethics o pinion, and seems rather to reflect a hope for ratification, from an uninformed, but friendly, source, of a course of conduct already selected.11 Moreover, there is no evidence that she f ully disclosed to him the proposed misrepresentations and d eceit. Even had she done so, his blessing of the conduct could not be mitigating. As we have indicated, every lawyer is presu med to know a nd abide b y the Rules of Profession al Condu ct. Disbarment of respondent is the appropriate sanction in order to protect the public and to inform other att orneys o f the type o f misco nduct th at will no t be toler ated. 10 In addition to the poor advice Mr. Wiggins gave to respondent regarding her plan to pay the clients from her own funds without disclosing the source, it appears to us that the entire premis e unde rlying resp onden t s action s, i.e., that the statute of limitations had expired before respondent realized that the complaint had been misfiled, is erroneous. The complaint had been timely filed; it was erroneously docketed by the Clerk s Office and as such, the statute of limita tions may w ell have bee n tolled by the p roper filing o f the com plaint. 11 Mr. Wiggins also represented respondent in the earlier disciplinary matter for which she received a public reprimand. We also were a dvised at oral argumen t here that Mr. Wiggins is respondent s child s godfather and a close personal friend of respondent as well. 40 IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING C O ST S O F A L L T R A N S C R I P T S, PURSUANT TO MARYLAND RULE 16-715, F O R W H ICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMM ISSION AGAINST JILL JOH NSO N PE NNI NGT ON. 41 IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG No. 12 September Term, 2004 ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. JILL JOHNSON PENNINGTON Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Dissen ting Op inion b y Bell, C. J . Filed: June 22, 2005 Misapp ropriation of entrusted fu nds, we h ave adm onished, is an act infec ted with deceit and dishonesty, and, in the absence of compelling extenuating circumstances justifying a lesser sanction, will result in disbarment. Attorney Griev. Comm n v. Bakas, 323 Md. 395, 403, 593 A.2d 1087, 1091 (1991 ). See Attorney Griev. Com m n v. Spery, 371 Md. 560, 568, 810 A.2d 487, 491-92 (2 002); Attorney Griev. Comm n v. Sullivan, 369 Md. 650, 655-56, 801 A.2d 1077, 1080 (2002); Attorney Griev. Comm n v. Vanderlinde, 364 Md. 376, 410, 773 A.2d 463, 483 (2001). That same admonition has been given, and thus applies, in the case of conduct involv ing mis represe ntation, see Vanderlinde, 364 Md. at 380, 773 A .2d at 46 5. See also Attorney Griev. Com m n v. Levitt, 286 Md. 231, 238, 406 A.2d 1296, 1299 (1979); Fellner v. B ar Ass n o f Balt. City, 213 Md. 243, 247, 131 A.2d 729, 732 (1957), especially when the attor ney has a history of such co nduct. Attorney Griev. Comm n v. Myers, 333 Md. 440 , 449, 635 A.2d 1 315-1319 (19 94). Whether the misconduct occurred is a question to be determined by the hearing court, whose findings in that regard are importa nt and e ntitled to defere nce. See Attorney Griev. Comm n v. Parker, 306 Md. 36, 46, 506 A .2d 118 3, 1188 (1986 ). The intent with which the misconduct was committed also is entrusted to the determination of the hearing court. That determination is of further importanc e in that it speak s directly to the quality and degree of misconduct for sanction purposes. Attorney Griev. Comm n v. Tomaino, 362 Md. 483, 498, 765 A.2d 653, 661 (2001) (reasoning that the state of mind of the attorney at the time of the violation [is] important in the contex t of mitigation ); Attorney Griev. Comm n v. Sheridan, 357 Md. 1, 29, 741 A.2d 1143, 1158 (1999) ( We agree with Respondent that his state of mind at the time he violated the ethical rules is important in the context of mitigation. ); Attorney Griev. Comm n v. Awuah, 346 Md. 420 , 435, 697 A.2d 4 46, 454 (1997). ( Although ignorance does not excuse a violation of disciplinary rules, a finding with respect to the intent with which a violation w as comm itted is relevant o n the issue o f the appro priate sanctio n. ). The hearing cou rt found that the r espon dent vio lated R ules 8.4 (c) and (d), and thus engaged in conduct involving misrepresentation. It also concluded that she did so intentionally, that the intent with which she acted was not a defense: The Respondent contends that her actions were not intentional or willful and thus could not b een view ed to violate R ule 8.4(c) an d (d). This Court sim ply does not believe that Respondent did not intend the natural consequences of her action and nonaction, especially when the Respondent testified that she never wanted the Butlers to become aware of the source of the funds or the status of their claims. Intentional fraud can be sustained by means of concealment. Attorney G rievance C ommissio n v. Clem ents, 319 Md. 289, 572 A.2d 174 (1990); See also Attorney Grievance Commission v. Pinkney, 311 Md. 137, 532 A.2d 1367 (1987) (Respondent prepared fictitious plead ings to give her client the impression that her case was filed in court, when in fact, she had failed to do so.) The act of concealment is exactly the conduct of the Respondent in this matter. The court also rejected the independent defense of reliance of counsel, which the respondent argued answered both the allegatio ns with respec t to Rule 8.4 and Rule 1.7. That defense was based on the respondent s having consulted with Mr. Wiggins concerning the appropriateness of proceeding to reim burse her client for a loss necessitated by her inaction, without fully disclosing to that client the circumstances and that it was her money, rather than that of an in surance co mpany, that w as being used to make the reimbursement. After 2 conducting the analysis and reviewing the pertinent cases, the hearing court concluded, the Respondent ... cannot rely on the good faith reliance on the defense of counsel as this is not the rule in Maryland. Nevertheless, it offered mitigating factors to be used when fashioning a sanction. Specifically, the hearing court made a finding that the Res ponden t in good fa ith relied on the incorrect advice provided to her by Mr. Wiggins and, because of that reliance, did not impart to the Butlers information about the status of their claims or the source of the funds that they receive d. In additio n, the hearin g court noted that, during the hearing, Respondent displayed a high degree of remorse for her actions. Thes e actions sh ould therefore be considered as mitigating factors when fashioning any sanction. Despite the Hearing court s mitiga tion finding s and, notw ithstanding its recognition of the purpose of attorney discipline, the majority orders the respondent disbarred. The goal of atto rney discipline in this state is well settled and has been stated often: The primary purpose in imposing discipline on an attorney for violation of the Rules of Professional Conduct is not to punish the lawyer but rather to protect the public and the public's confidence in the legal profession. Attorney G riev. Com m n v. Stein, 373 Md. 531, 533, 819 A.2d 37 2, 375 (2003); Attorney Griev. Co mm n v . Powell, 369 Md. 462, 474, 800 A.2d 782, 789 (2002). W hen sanc tions that are c ommen surate with the nature and grav ity of the violations and the intent with wh ich they were committed are impos ed, the pub lic is protected. Attorney Griev. Comm n v. Awuah, 346 Md. 420, 435, 697 A.2d 446, 454 (1997). See Attorney G riev. Com m n v. Sh einbein, 372 M d. 224, 2 55, 812 A.2d 9 81, 999 (2002); Attorney Griev. Comm n v. Hess , 352 M d. 438, 453 , 722 A.2d 905, 913 (1999); Attorney Griev. Comm n v. Webster, 348 Md. 662, 678, 705 A.2d 1135, 1143 (1998). In determining the appropriate sanction, the C ourt is required to consider the facts and circumstances of each particular case , includin g consid erati on of any mitigating f actors. See Attorney Griev. 3 Comm n v. Atkinson, 357 Md. 646 , 656, 745 A.2d 1 086, 1092 (200 0); Atto rney Griev. Comm n v. Gav in, 350 M d. 176, 1 97-98 , 711 A .2d 193 , 204 (1 998). The absence o f a dishon est or selfish m otive is a facto r that this Court has determined to be a mitigating factor, entitled to some weigh t. Attorney Griev. Comm n v. Thompson, 367 Md. 315, 330, 786 A.2d 76 3, 772-73 (2001); Attorney Griev. Comm n v. Jaseb, 364 Md. 464, 481-82, 773 A .2d 516, 52 6 (2001); Attorney Griev. Comm n v. Glenn, 341 Md. 448, 488-89,671 A.2d 463,483 (1996). We have also recognized remorse as a mitigating factor. Attorney Griev. Comm n v. Post, 379 M d. 60, 71, 839 A .2d 718, 72 5 (2003); Attorney Griev. Comm n v. Wyatt, 323 Md. 36, 38, 591 A.2d 467, 468 (1991). Accordingly, I believe that an indefinite suspension, rather than disbarment, is the appropriate sanction. That adv ice of cou nsel is not a defense or that the hearing court found that the respondent intend[ed] the natura l consequences of her action and nonaction, does not mean that, as a matter of law, the respondent acted with a dishonest or selfish motive. As we have seen, the hearing court concluded that the respondent had no intent to harm her client. It necessarily follows, therefore, that she acted without a dishonest or selfish motive. That f inding and co nclusio n is entitle d to we ight. That is true notwithstanding the facts that the hearing court could h ave reached the op posite conclusion and , more to the point, that that opposite conclusion is the one that this Court prefers and, as factfinder, would have reached. Nor can it be ignored that the hearing court concluded that the respondent expressed a high degree of remor se. Here ag ain, that findin g is entitled to weight. That the majority s review of the record leads it to the opposite finding does not undermine the finding an d certainly is not a basis for its vitiation. When the hearing court s motive finding is considere d with its finding of a high degree of remorse, disbarment simply is not warranted. There really is no good reason, and the public is not protected, when an attorney, acting, as found by the 4 hearing court, without a selfish or dishonest motive is disbarred. Imposition of such a sanction under those circumstances, amounts to nothing more than punishment. Perhaps recognizing the logic of this position, the majority totally disregards the hearing court s motive findings1 and trivializes the remorse finding; in tha t way, the majo rity justifies its punishm ent - the exa ction of the pound o f flesh it believ es required - of the resp ondent. 1 It is interesting to me, given the fact that the holding is that reliance on advice of counsel is not a defense, the emphasis that the majority places on where Mr. Wiggins is barred, going so far as to suggest that seeking advice from someone not barred in Maryland and, therefore, presumably, not familiar with Maryland procedure, s omehow is more reprehensible, that her fau lt may have b een less had she sought the advice of a Maryland attorney. Qua ere: why do we refer f requently to commentators, experts, in many fields of endeavor, without regard to where they are barr ed? Cur ious ly, som etim es, quite f requ ently, in fact, the opinion o f the com mentator f inds its way into appellate opinions, even those of this Court. It is perhaps obvious, but I want to be clear, I do not share the majority s view. 5
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