Attorney Grievance v. Ellison

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Attorney Grieva nce C omm ission v. E llison, No. AG46, Sept. Term 2003. Opinion b y Harrell, J. ATTORNEY GRIEVANCE DISCIPLINARY ACTION RULES OF PROFESSIONAL CONDUCT DISHONEST CONDUCT Disbarment is the appropriate sanction for intentional dishonesty, in the absence of adequate, countervailing mitigating factors. Responden t attorney violated MRPC 1.15 (c), 1.15 (a), 8.1 (b), 8.4 (c) and (d), and Maryland Rules 16-606 and 16-609. Attorney s intentional dishonest conduct towards third party assignee / health care provider in the representation of a client in a personal injury claim, and Bar Counsel and its investigator in the course of investigating the assignee s complaint, merited disbarment despite mitigating factors of an absence of a prior disciplinary record and relative inexperience in the practice of law. IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG No. 46 September Term, 2003 ATTORNEY GRIEVANCE COMMISSION v. JARED K. ELLISON Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Harrell, J. Filed: February 4, 2005 This attorney conduct matter arises out of the on-again / off-again / on-again legal representation of John P. Moody in a personal injury claim and the assign ment of recovery proceeds from that claim to one Avraham Strulson, a physical therapist who treated Moody for injuries suffered in the underlying motor vehicle accident. The Attorney Grievance Commission of Maryland (AGC), Petitioner, acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action against Jared K. Ellison, Esqu ire, Respon dent, charg ing him with violations of Maryland Rules of Professional Conduct (M RPC) 1.5(c) (Fe es),1 1.15 (a), (b),and (c) (Safekeeping P roperty),2 8.1 (a), (b) (Bar Adm ission and Disciplinary Ma tters),3 1 MRPC 1 .5(c) provides: A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. The terms of a contingent fee arrangement shall be communicated to the client in writing. Th e comm unication sh all state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and wh ether such e xpenses a re to be deducted before or after the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer sh all provide the client with a written statement stating the outcome of the matter, and, if there is a recovery, showing the remittance to the client and the method of its determination. 2 MRP C 1.15 pr ovides in p ertinent part: (a) A law yer shall hold property of clients or third persons that is in a lawyer s possession in connection with a representation separate from the lawyer s own pro perty. Funds sh all be kept in a separate account maintained pursuant to Title 16, Chapter 600 of the Maryland Rules. Other property shall be identified as (continued...) and 8.4 (c), (d) (Misconduct). 4 Petitioner also charged Respondent with violations of (...continued) such and appropriately safeguarded. Complete records of such account funds and of oth er property shall be kept by the lawyer and shall be preserved for a period of five years after termination of representation. (b) Upon receiving funds or other property in which a client or third person ha s an interest, a law yer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third p erson is entitled to receive and, upon request by the client or third person, shall promptly render a ful l accounting rega rding suc h pro perty. (c) When in the co urse of representation a law yer is in possession of property in which both the lawyer and another person claim interests, the property shall be kept separa te by the lawyer until there is an accounting and severance of their interests. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved. 3 MRPC 8 .1 provides: An applicant for admission or reinstatement to the bar, or a lawyer in connection with a bar admission application or connectio n with a dis ciplinary matter, sh all not: (a) knowingly make a false statement of material fact; or (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or kn owingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this Rule does not require disclo sure of inf ormation o therwise protected by Rule 1.6. 4 The relevant portions of MRPC 8.4 state: It is profession al miscond uct for a law yer to: (continued...) 2 Maryland Rules 16-6065 and 16-609.6 Pursuant to Rule 16-752(a), we referred this matter to the Honorable Melanie Shaw G eter of the C ircuit Court f or Prince G eorge s C ounty to condu ct a hea ring an d mak e findin gs of f act and propo sed con clusion s of law . Judge Geter concluded, from the facts found credible by her and to a clear and convincing standard, that Respondent violated MRPC 1.5(c); 1.15 (a),(b); 8.1(b); and 8.4(c). She further concluded that Respondent violated Md. Rules 16-606 and 16-609. Bar Counsel excepted to Judge Geter s refusal to find a violation of MR PC 8.4(d ) and, regard less of its (...continued) (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice. 5 Md. Rule 16-606 states: An attorney or law firm shall maintain each attorney trust account with a title that includes the name of the attorney or law firm and that clearly designates the account as Attorney Trust Account , Attorney Escrow A ccount , or Clients Funds Accou nt on all checks and deposit slips. The title shall distinguish the account from any other fiduciary account that the attorney or law firm may maintain and from any personal or business account of the attorney or law firm. 6 Md. Rule 16-609 states: An attorney or law firm may not borrow or pledge funds required by these Rules to be deposited in an attorney trust account, obtain any remuneration from the financial institution for depositing any funds in the account, or use any funds for any unauthorized purpose. An instrument drawn on an attorney trust account may not be d rawn payable to cash o r to bearer. 3 exception, recommended disbarment as the appropriate sanction. E llison excep ted to each of Judge Geter s conclusions of law and urged his version of the facts. In addition, Ellison excepted to a pre-hearing order rejecting his m otion for an order com pelling discovery regarding the Com plainant, Strulson. R esponde nt recomm ended, in light of his exceptions, that we dismiss Bar Counsel s complaint, or, if we should find grounds for any violations, they warranted no more than a reprimand. I. We begin by considering Judge Geter s findings based on our independent review of the record . Attorney Grievance Comm n v. Stolarz, 379 Md. 387, 397, 842 A.2d 42, 47 (2004) (citing Attorney G rievance C omm n v. Garfield , 369 Md. 85, 97, 797 A.2d 757, 763 (2002); Attorney Grievance Comm n v. Wallace, 368 M d. 277, 288 , 793 A.2d 535, 542 (2002)). We have organized her findings in the following contexts for review: first, those relating to events occurring prior to Strulson s complaint to the AGC; second, as revealed during the AGC s investigation prior to the evidentiary hearing before her; and third, additional facts brought to light at the hearing. A. Moody was injured in an automobile accident on 10 July 2002. He entered S trulson s care, upon referral by his primary physician, on 7 August for treatment of injuries inflicted during the acc ident. Strulson, a Maryland-certified physical therapist, treated Mood y until 4 October 2002. 4 At the start of his treatment, Moody provided to Strulson only his automobil e insurance provider, GEICO, as a source of payment for his care, although Moody had Medicare and Government Employees Hospital Association (GEHA) insurance coverage as well. When Moody completed the medical data form, he listed uninsured as the person responsible for payment of the treatm ent. 7 During and after his treatment of Moody, Strulson submitted Moody s medical bills initially only to GEICO, Moo dy s Personal Injury Protection (PIP) insurer. At the conclusion of Moody s treatment and after the exhaustion of Moody s PIP coverage (which occurred on 18 Novemb er 2002), Moo dy s account w ith Strulso n had a balanc e due o f $1,02 2.00. On 11 October 2002 Moody signed a retainer agreement with the law firm of Donald M. Temple, P.C. (the Firm), to represent him in the personal injury matter. Ellison, a close friend of Mood y s since at least 2000, was emp loyed by the Firm 8 and signed the Firm s retainer agreeme nt, on Firm le tterhead station ary, as the Res ponsible A ttorne y. The retainer agreement also provided for a contingency fee of thirty-three and one-third percent of any recovery to be paid to the Firm should the claim be settled prior to litigation. 7 Moody later would state, at the hearing before Judge Geter when he testified as a witness for Ellison, that he informed Strulson of his Medicare and GEHA coverage and that he provided Strulson s assistant with his insurance cards so that she could make copies of them. 8 Although Temple characterized Ellison as an associate, E llison more p recisely was a contractual employee who received a percentage of the profits of the cases on which he wo rked. 5 On 14 Octo ber, Ellison, o n Firm letterh ead statione ry, informed S trulson that [ t]his office has been retain ed to represent M oody and re quested a c opy of M oody s med ical bills and records. Stru lson offer ed to send the bills and records after Moody and Ellison signed an Assignment and Authorization form (the Assignment) and paid a $50 administrative charge. The Assignment form authorized and directed Moody s attorney to immediately pay all bills received from Avi Strulson, PT, from the proceeds of any recovery on [his] case as soon as the fund s were rec eived. The Assignm ent also con tained a clau se purportin g to require any attorney to whom [Ellison] refer[red] this case, within or outside the f irm, to honor this Assignment, as a condition of the referral. Ellison responded to the request by sending a personal check to Strulson for $50 and then signed and faxed to him a copy of the fully executed Assignment on 4 November. Moody then picked up the records from Strulson s office. The Firm and Ellison s representation were terminated by a letter dated 6 November 2002 sent by Moody to Ellison.9 The letter stated that Mood y was terminating the Firm s 9 A copy of this letter first app eared in this record as part of Ellison s 25 Feb ruary 2003 res ponse to Bar Cou nsel s ini tial in vestigato ry inquiry. The copy of the le tter sent to Bar Coun sel stated , [t]his letter is to inform you that I am terminating your firm s representation of my personal injury claim. Please forward any and all correspondence regarding my case to me. A copy of a similar letter from Moody to the Firm, also dated 6 November 2002, was sent by Ellison to the Office of Bar Counsel for the District of Columb ia with a letter dated 14 Febru ary 2003. Th is copy of the le tter stated, [t]his is to inform you that I will be handling my own claim. I am terminating the services of the Temple Law Offices, effective immediately. If you have any questions, please feel free to contac t me. 6 representation of his claim and implied that he would be handling his own claim. In a letter dated 7 November 2002, also on Firm stationery, Ellison informed Strulson that our Firm no long er repr esented Moo dy and th e Assig nmen t was n ow nu ll and vo id. Some time in mid-to-late November, Strulson returned a phone call from Ellison regarding the account balance for Moody. Strulson claimed that he merely told Ellison the account balance and that there w as no discussion abo ut whether M oody s personal injury claim was settled (nor, according to this record, was there any discussion about E llison s letter of 7 Nove mber). Strulson treated M oody on 7 Ja nuary 2003 for an injury un related to the personal injury claim and learned during this session that the personal injury claim had been settled. He called E llison the same d ay. Strulson stated that Ellison claimed during this phone conversation that he no longer represented Moody, there had been no settlement of Mo ody s claim, Ellison did not owe Strulson any money, and Strulson should bill Medicare for the balanc e due o n Mo ody s acc ount. On or about 11 January 2003, Strulson received a letter, dated 9 January 2003, from Ellison stating that the Firm no longer represented Moody and that it [had] been bro ught to my attention, [sic] that my first letter [the letter dated 7 November 2002] informing your office that we longer represent Mr. Moody was not received. Strulson filed a complaint with the AGC on 10 February 200 3, against Ellison as a mem ber of the Firm.10 Strulson 10 Strulson also filed concurrently a complaint against D onald Te mple with the Office (continued...) 7 claimed that Ellison, w hile acting on behalf of Mood y as his attorney, violated the terms of the Assignment by not paying the balance due on Moody s account from the proceeds of the settlement. B. Bar Counsel sent a letter to Ellison at his home address on 21 February 2003 requesting a response to Strulson s complaint. In a letter on Firm stationery dated 25 February 2003, Ellison responded that Moody terminated the representation of our law office and that Stru lson s Ass ignment a nd his sub sequent co mplaint co ncerning u npaid medical bills were invalid and unmerited, respectively. Attached to his letter were copies of the retainer agreement betw een the Firm and Moody; Moody s termination letter as to the representation; two letters allegedly sent from the Firm in November 2002 and January 2003 to Strulson informing him that the Firm no longer represented Moody; a copy of the Assignment between Strulson, Ellison, and Moody; and an affidavit by Moody. Ellison also attached a letter, dated 24 F ebruary 200 3, from D onald Te mple wh ich stated that all docume nts that [the Firm ] has relating to Mr. John P. Mood y were enclosed. Tem ple s letter confirmed that he believed the Firm s representation of Moody was terminated by the 6 November 2002 letter from Moody and that Strulson s claim was specifically designed 10 (...continued) of Bar Counsel for the D istrict of Colu mbia. Th e Firm resp onded to th is investigation with a letter dated, 2 5 Februa ry 2003, that M oody had term inated the F irm s represe ntation in order to represent himself and that Strulson had no claim against Temple or the Firm under the Assign ment. 8 to harass this law firm and Mr. Ellison. He is duly aware that we have no responsibility for Mr. M oody s m edical b ills. John W. Reburn, Bar Counsel s investigator assigned to the complaint, conducted an investigation of Ellison. Bar Counsel received a letter dated 2 April 2003 from Ellison, on Firm statio nery, stating that Moody had informed Ellison that Strulson was paid in full. On 8 April 2003, Reburn contacted GEICO by telephone and learned that a $5,000.00 settlement check had been issued on 1 5 Nove mber 20 02 in settlement of Moody s personal injury claim.11 Reburn learned that Ellison continued to represent Moody in his personal claim and that the settlemen t check w as drafted in both of their names and had been ma iled to Ellison s home address. The PIP coverage, which Strulson had been billing for Moody s care, became exhausted at or about the same time the settlement check was issued. On 15 April 2003, Reburn met with Ellison to review Ellison s documents regarding Moody s representation and discuss further the inve stigation . Ellison claimed initially that his file was unavailable because the Office of Bar Counsel for the District of Columbia had it. Over the course of the interview, Ellison admitte d that he had represented Moody throughout the pende ncy of his claim and had n egotiated th e settlement with GEICO. 11 GEICO would later confirm this information in a letter dated 15 March 2004 to Bar Counse l. The attached copies of its ordina ry business records dealing w ith Mr. Mood y s claim included a copy of Mr. Ellison s demand letter faxed on 5 November 2002, a letter from GEICO dated 18 November 2002 sent to Mr. Ellison as Mr. Moody s attorney, and a release signed by Mr. Moody and faxed from Mr. Ellison s home fax under his cover sheet on 2 December 2002. 9 Reburn also asked Ellison about the settlement check. Ellison stated that he paid the funds he received from GEICO to Moody. When Reburn asked if he had received a fee for his services, Ellison replie d, I paid it to Mr. Moody. Ellison also stated that he either had not prepared or retained a cop y of the settlement sheet for M oody s settlement funds. Re burn concluded the interview by requesting information regarding the settlement funds received and disbursed, the demand letter sent to GEICO, and the medical records and source of the $50 fee sent to Strulson at the time the Assignment was executed. Ellison responde d to Reburn on his personal stationery by letter of 16 April 2003. He stated that he was not able to locate a copy of the actual demand letter sent to GEICO, but enclosed an unexecuted copy while he continued to search for a copy of the original. Ellison also explained that the $50 fee paid to Strulson came from Mr. Moody and was not from his escrow account. He concluded by stating that the settlement check of five thousand dollars ($5,000.00) from GEICO was endorsed by myself and Mr. Moody and was deposited into my IO LTA accou nt and I then pa id Mr. M oody. Reburn followed with a letter dated 1 May 2003. He requested a full accounting of the funds rec eived and disbursed o n behalf o f Moo dy, copies of a ll bank statements and cancelled checks regarding Moody s funds, and an accounting of how Ellison paid the $50.00 fee to Strulson for the medical records. He further requested an explanation as to why Ellison did not disclose his continued representation of Moody in his initial response to Bar 10 Counsel s initial inquiry in February 2003 and whether the Firm knew that Ellison continued to represent Moody after 6 November 2002. Ellison finally explained in a letter dated 13 May 2004 that he had represented Moody in his settleme nt and rece ived a fee f or his services. H is enclosed bank statem ents and checks revealed that he deposited the $5,000.00 check on 2 December 2004 in an account labeled Jared K. Ellison, Esq. IOLTA 12 and that h e had disbu rsed $1,71 5.00 to himself on 3 De cember f or legal serv ices rendere d. He the n distributed $ 3,285.00 to Moody from th e acco unt, by ch eck, on 4 Decem ber 2002. He also stated that the $50.00 receiv ed from Mr. M oody to p ay Avi S trulson w ent direc tly to Avi S trulson. The letter continued that the Firm did not know that Ellison continued to represent Moody after 6 November 2002. He did not disclose his continuing representation of Moody in response to Bar Counsel s initial inquiry because he honestly believed that all agreem ents with Avi Strulso n terminated becau se [he] sign ed the auth orization an d assignm ent while handling Mr. Moody s case on behalf of the firm. Ellison further asserted that he believed that Bar Counsel merely wanted to know when the Assignment was terminated which I believe d ende d any ob ligation that I had to Avi S trulson. Reburn continued his correspondence with Ellison with a letter dated 20 May 2003. He requested the Firm s and Ellison s personal injury case file for Moody, a copy of Ellison s 12 Ellison later would claim that his client trust fund account at Bank of America was named in that fashion because the bank said this is how that could be set up, and this is how the nam e and a ll go on your acc ount. 11 written contingent fee agreement with Moody, and an explanation as to why Ellison did not inform Temple that he continued to represent Moody after 6 November 2002. Ellison responded via le tter d ated 28 M ay 2003. He stated that he submitted to [Reburn] all the docume nts that I have relating to Mr. John Moody. Contrary to his previous assertion at the 15 April 2003 interview when he stated the Moody file was still in the possession of the Office of Bar Counsel for the District of Columbia Bar, he also stated that his personal Moody file was the same file the Firm h ad. Ellison could not locate a written contingency fee agreement, but forwarded an exact duplicate of the retainer agreement that Mr. Moody would have signed. He did not inform the Firm that he was continuing to represent Moody after 6 November because he was doing a fav or fo r Mr . Mo ody. . . because Mr. Moody was a n eighbo r of min e. Temple stated at his pre-hearing deposition that Ellison was free to represent other clients outside of the Firm, although he did not know of any that Ellison had so represented in 2002.13 Temple acknowledged his understanding that the Firm had been retained by Moo dy, but tha t Moo dy later term inated th e repres entation . With regards to E llison s represe ntation of Moody, Temple averred that he did not know that Ellison continued to represent him until Bar Counsel commenced its investigation. Temple also stated that he did not know Ellison received a fee from Mood y, but that fact did 13 Temple was unavailable to testify at the hearing. His deposition was submitted in to evid ence at the hear ing in lieu of his tes timo ny. 12 not bother him in the slightest. He did not believe the Firm was owed any portion of the fee from the settlement. Finally, in Temple s opinio n, Ellison did n othing w rong in this matter. C. At the two-day hearing on 8 and 9 July 2004 before Judge Geter, Ellison testified. Judge Geter w eighed his testimony in the follow ing manner: At the hearing , Respon dent ackn owledg ed that the retainer agreement he had Moody sign was on Tem ple Law letterhea d, and although it listed him (Respo ndent) as the respon sible attor ney, the agreement was between Moody and Donald M. Temple, P.C. Responden t also testified, however, that Moody was never a clien t of the Tem ple Law Office, and that it was a mistake for him to use the firm s letterhead because it made it seem as [though] Temple Law O ffices was representing Mo ody, when Temple Of fices did not represent Moody. Respondent further testified that Moody understood that he was not retaining the firm because Moody was [Respon dent s] client prior to [Respondent] going to [work at] Temple Law Offic es. Respondent also testified that he did not recall Moody signing another agreeme nt once Respondent began representing Moody after the termination. Respondent further testified that he d id not ever recall giving Moody [a written statement] and he signing it once Respond ent received the settlement from GEICO in Moody s case. Respondent explained that assuming arguendo he never executed a second retainer agreement between himself and Moody, it was because he and Moody verbally agreed to the same terms as those contained in the previous agreement, including the same percentage for the contingency fee. After Respondent received the settlement check in Moo dy s case, he admitted ly did not call Stru lson to notify him that a 13 settlement had been received. Respondent testified that during a telephone conversa tion initiated by Stru lson in late November of 2002, Strulson informed Respondent that he was already aware that Moo dy s case had been settled . Strulson did not tell Respondent how he had obtained the information. Although Strulson likewise testified that he returned a call from Respondent in mid to late November of 2002, he also testified that the conversation was only regarding Moody s account balance for treatment rendered and Respondent made no mention of a settlement having been received. In fact, Strulson testified that he did n ot find out th at the case h ad been s ettled until January 7, 2003, when Moody was referred back to him for treatment of an old military injury. Respondent acknowledged that at the time he disbursed the settlement funds to himself and Moody in early December of 2002, he had not received information, and had not taken any steps to find out, whether Medicare had paid Strulson. Strulson said that he asked M oody about his personal injury case, at which point Moody informed him that the case had been settled. Strulson fu rther testified tha t he imme diately called Respondent to inquire ab out the settlement and to inform h im that there was a balance on Moody s account that Respondent was obligated to pay in accordanc e with the [Assign ment]. According to Strulson, Respondent told him that he was no longer representing Moody, there had been no s ettlement in the case, that he (Respondent) did not owe Strulson any money, and to bill Medicare for the balance owed. II. A. Before proceeding to the exc eptions to Judge G eter s written findings and conclusions, we address Ellison s contention regarding the denial of his pre-hearing motion 14 to compel discovery from Strulson.14 Ellison believes that Strulson used the attorney grievance process as an unlawful means to leverage Ellison and Mood y into overpaying for Moody s medical trea tment. The refore, his req uest to inquire further into that suspicion was denied im prop erly. Strulson received a subpoen a duces tec um to app ear for dep osition with all documentation concerning: complaints against Strulson before any licensing body; any contact Strulson ha d with the AGC regarding Ellison or an y other lawyer; an d any civil suit or AGC grievance complain t for any violations of assignment payment terms between Strulson and any other lawyers. Strulson attended the deposition, but without these documents, if any existed. Strulson also did not file an objection to the subpoena or a motion for a protective order as generally prescribed by Md. Rules 2-510(f) and 2-403.15 14 Maryland Rule 16-710 (a) directs that post-charging discovery in an attorney grievance case proceed in accordance with Chapter 400 of Title 2 of the Rules, the rules for discovery in civil cases in the circuit courts. The hearings are governed by the same rules of law, evidence and procedure as are applicable to the trial of civil pro ceedin gs in eq uity. Md. Rule 16 -710 (d). 15 The applicable portion of Md. Rule 2-510 (f) states: A person serv ed with a subpoena to attend a deposition may seek a protective order pursuant to Rule 2-403. If the subpoena also commands productio n of docu ments or o ther tangible things at the deposition, the person served may seek a protective order pursuant to Rule 2-403 or may file, within ten days after service of the subpoena, an objection to production of any or all of the designated materials. 15 On 24 May 2004 , Ellison filed his motion pursua nt to Rule 2-432 (b) (G ).16 In his memorandum in support of the motion, Ellison argued tha t Strulson s co mplaint to the AGC was nothing more than a bill-collecting strategy using the AGC and Bar Counsel as a means to compe l payment fo r his services. It w as hypotheca ted that disco very likely would show Strulson s technique of bringing complaints against lawyers through Bar Counsel as a means to obtain paymen t of his b illings. If so dem onstrated, it was posited that this would reflect negativ ely upon Strulso n s cha racter an d credib ility in the pr esent ca se. Bar Counsel responded to Ellison s motion with its own motion in limine and request to limit the s cope o f disco very. In its motion, Bar Co unsel noted that discovery of S trulson s extrinsic conduct was unrelated and irrelevant to Ellison s conduct regarding the Assignment and Moody s representation. Strulson s conduct, which was not subject to an investigation by Bar Counsel, was also not the subject of the petition in the present case. Furthermore, information relating to other Bar Counsel investigations initiated by Strulson s complaints, if any, would be confidential and generally protected from discovery by Rule 16-723 (b). The h earing ju dge ref used to accord relief to E llison. Ellison relies on Attorney Grievance Comm n v. Stolarz, 379 Md. 387, 842 A.2d 42 (2004) on this issue. W e, howev er, did not part so broad a swath in the ocean of prohibited attorney conduct in Stolarz as Ellison conceives. First, Ellison points out that we stated in 16 Section (b) allow s a party to mov e for an order c ompe lling disc overy if: . . . (G) a nonparty deponent fails to produce tangible evidence without having filed written objection under R ule 2-5 10 (f). 16 Stolarz that use of a grievance against an attorney as a means to collect a debt is ce rtainly not a legitimate or appropriate use of the grievance procedures of this state. Id. at 396, 842 A.2d at 46. Although we undeniably included those words in Stolarz, a review of that sentence fragment in context with the rest of the paragraph of which it was a part in that opinion reveals that we merely were restating the hearing judge s conclusions of law as he discussed Stolarz s arg ument a s to why he threatened the complainant in that case with a defama tion lawsu it: Stolarz maintains that he believes the Complainant threatened to bring this action in a n effort to collect his client s debt, which is certainly not a legitimate or appropriate use of the grievance procedures of this state. . . . Based upon the aforementioned reasons this Court [referring to the hearing judge] finds by clear and convincing evidence that Respondent did not act unreason ably in warnin g Com plainant that a defam ation claim would be asserted when he rationally believed that Complainant would defame him. Id. at 396, 842 A.2d at 46-47. The hearing judge in that case ultimately concluded that Stolarz s warning of a defamation claim against the complainant did not rise to a violation of MRPC 8.4(d). Our actual holding was quite succinct and limited solely to Bar Counsel s exception to the hearing judge s conclusion regarding Bar Counsel s inability to prove by clear and convincing evidence a violation of M RPC 8 .4(d); [t]his fin ding is not cle arly erroneous based on the limited reco rd in this case and we th erefore decline to o verrule it. Id. at 401, 842 A.2d at 5 0 (footnote omitted). 17 Ellison also claimed in his motion that he did not believe Strulson had a valid interest in the settlement proceeds and that, even if he did, the amount due was clearly in dispute. Under this theory, discovery might reveal that Strulson had used the AGC or other civil remedies to obtain payments for other invalid interests or disputed balances under assignme nts from other attorneys and th eir clients. On ce again, E llison relies inco rrectly on Stolarz, this time employing it in an exercise in inverse logic. In Stolarz, we stated, evaluating a claim ed viola tion of M RPC 1.15(b ), that [i]f the creditor s c laim is a valid interest and the amount of that interes t is undispute d, then the law yer should disp erse directly to the creditor from the settlement proceeds. Id. at 400, 842 A.2d at 49. Stolarz had signed an assignme nt to a client s len der in the amount of $300.00 and then, by innocent oversight, failed to pay the assignment when he received and disbursed the settlement proceeds. What we did not state in Stolarz, and what we can only conclude that Ellison appears to rely on, is the inverse when th ere is a dispu te as to the am ount of th e claim, the lawyer has no obligation either to pay the a ssignmen t or ascertain the correct amount due under the assignme nt. Such a reading of Stolarz as Ellison urges is irreconcilable with the directions of MRP C 1.15(b ) that place an affirmative burden o n the attorne y both to no tify the third party assignee upon receipt of burdened funds and deliver the proper amount due to the third party. Lastly, as Bar C ounsel co rrectly stated in its motion, records of an investigation by Bar Counsel are confiden tial generally. No ne of the re cognized exception s to this 18 confiden tiality are argued to be applicable here. Thus, any B ar Counsel investigation of attor neys initiated by complaints by Strulson ordinarily would not be discoverable under R ule 16-723 (b). Ellison s exception in this regard is overruled. B. We turn to review of the exceptions of Ellison and Bar Counsel, in turn, to Judge Geter s written findings and conclusions. [W]e review the findings of the hearing judge to determine whether they are based on clear and convincing evidence, that the hearing court s findings of fact are prima fac ie correct and will not be disturb ed unless they are shown to be clearly erroneous. Attorney Grievance Comm n v. Culver, 371 Md. 265, 274, 808 A.2d 1251, 1256 (2002) (quoting Attorney Grievance Comm n v. Barneys, 370 Md. 566, 577, 805 A.2d 1040, 1046 (2002) (citations omitted in original)). When the findings are not clearly erroneous, exceptions will be overruled. Attorney Grievance Comm n v. Brown, 380 Md. 661, 669, 846 A.2d 428, 432-33 (2004) (citing Attorney Grievance Comm n v. McCoy, 369 Md. 226, 234-35, 798 A.2d 1132, 1137 (2002)). Our review of the hearing judge s conclusions of law is de novo. Stolarz, 379 Md. at 397, 842 A.2d at 47 (citing Attorney Grievance Comm n v. McL aughlin, 372 Md. 467, 493, 813 A.2d 1145, 1160 (2002); Attorney G rievance C omm n v. Dunietz , 368 Md. 419 , 428, 795 A.2d 7 06, 711 (2002)). Ellison exc epts to the supporting findings and conclusion that a violation of MRPC 1.5(c) occurred. He maintains that the written contingency fee retainer agreement signed by Moody with the Firm satisfied his obligation under MRPC 1.5(c). Furthermore, he asserts 19 that an itemized settlement statement was unnecessary when he disbursed the settlement proceeds because Ellison believ ed there w as no third p arty assignee to pay, notwithstanding the As signm ent to S trulson. Judge Geter f ound, c ontrary to Ellison s contentions, that M oody retained the Firm with regard to his personal injury claim and then terminated that representation with his 6 November 2002 letter. The now-invalid contingency fee arrangement with the Firm did not meet the requirement for a written fee arrangement between Ellison, acting outside the Firm, and Moody. Although Judge Geter credited Ellison with having an oral arrangement with Moody for a contingency fee, her findings that there was neither a written contingency fee agreement nor a written settlem ent statemen t are not clearly erro neous. Th is exception is overruled. Ellison excepts to the finding s and con clusions as to the violation of Rule 16-606, for not properly desig nating his atto rney trust accou nt; Rule 16-609, for disbursing unauthorized funds to h imself and M oody befor e satisfying the A ssignmen t; and MRPC 1.15(a), for not complying with Title 16, Chapter 600 of the Maryland Rules. The hearing judge observed that Ellison s incorrectly designated accoun t checks were sufficient to violate both Rule 16606 and MRP C 1.15(a). We overrule these exceptions. Rule 16-606 is q uite clear; it requires that all attorney trust accounts be designated in one of three mann ers. Ellison did not comply with this Rule, whether by ignorance or willful intent. Attorney Grievan ce Comm n v. Blum, 373 Md. 275, 300, 818 A.2d 219, 234 (2003) 20 ( the hearing judge was correct when he concluded that Blum violated Maryland Rule[] 16606 . . . when he named his attorney trust account Bruce D avid Blum L aw Firm IOLTA ); see Attorney G rievance C omm n v. Bernstein , 363 M d. 208, 2 28, 768 A.2d 607, 618 (2001) ( ever y attorney is deem ed to know the Rules o f Professio nal Cond uct and is charge d with t he kno wledg e of ho w to op erate an d main tain a tru st accou nt ). The hearing judge correctly concluded that Rule 16-609 was violated. The Assignment between the Firm (by Ellison) and Moody on one hand and Strulson on the other was valid even after the Firm no longer represented Moody. The Assignment, by its terms, applied to any referral o f Moo dy s claim to a lawyer inside or outside th e Firm an d certainly purports to apply to Ellison s continued representation of M oody. The v alidity of this specific clause was not c ontested be fore Judg e Geter. A lthough E llison conteste d the validity of the Assignmen t before the AGC , he conceded be fore us that he no longer maintained any contention regard ing the v alidity of th e Assig nmen t. Thus, J udge Geter s factual findings were not clearly erroneous; nor was her finding incorrect that the distributions to Moody and Ellison were unauthorized while the Assignment remained in force. Ellison further argues that the violation of MRPC 1.15(a) is duplicative of the charge of violating Rule 16-606 , but offers no other explanation for why this result is incorrect. The gravamen of his exce ption is misp laced; it is not outside the purview of this Court to draft overlapping rules, a narrow one for m anaging a ttorney client trust fund accounts and a broader one to set a minimum standard of professional conduct in dealing with attorney/client 21 trust funds. As such, a set of facts that constitutes a violation of one may violate also the other without the re necessa rily arising a n unfa irly duplica tive set o f sancti ons. His exception to supposedly duplicative violations is overruled. We shall consider later this exception, however, with regard to the proper sanction that may be imposed here. Ellison s exception to the reco mmend ation of a v iolation of M RPC 1 .15(b) also is misfounded and consequently overruled. Although he claims that Strulson had knowledge from GEICO of the personal injury claim settlement as early as November and thus Ellison had no need to inform S trulson, his asse rtion of w hen Strulso n gained th at know ledge is irrelevant. MRPC 1.15(b) places an affirmative burde n on the attorney to contact the third party assignee and deliver the appropriate funds to that third pa rty. See Attorney Grievance Comm n v. Sheridan, 357 Md. 1, 21-22, 741 A.2d 1143, 1154 (1999) (quoting Roberts v. Total Health Care, Inc., 349 Md. 49 9, 519, 709 A.2d 14 2, 151-52 (1998)). It w as not clearly erroneous for Judge Geter to conclude that Ellison made no effort to contact Strulson after he received the settlement funds (in fact, Ellison made substantial efforts to avoid such contact). Ellison further asserts, as he did in his pre-hearing motion for discovery, that he was required to deliver funds under MRPC 1.15(b) only to parties he believed had a valid interest in the settlement proceeds and then only when the amount of the funds due was undisputed. In Ellison s opinion, Strulson did not have a valid interest beca use the A ssignmen t was nu ll and void. Furthermore, he claims that he did not receive any billing statements from 22 Strulson and therefore it was im possible for him to con form with M RPC 1.15(b ). Fina lly, he defends his inability to comply because the amount due to Strulson was disputed. We already have addressed Ellison s failed extension of Stolarz in addressing his pre-trial discovery motion. Ellison w as subject to a valid Assig nment an d Judge G eter had am ple evidence before her supporting the conclusion she reached that Respondent did not fulf ill his obligati on to no tify or pay S trulson. Ellison next excepts to Judge Geter s conclusion that he violated MRPC 8.1(b) because he failed to disclose that he received a fee for representing Moody. Ellison highlights the following exchange during cross-examination of Reburn at the hearing that he claims makes Judge Geter s associated fact-finding clearly erroneous: [RESPO NDEN T S COU NSEL ]: He nev er actually said to you, in these words, I never received it, a fee, did he? [MR. REBUR N]: Those words, I never received a fee? [RESPONDE NT S COUN SEL]: Yeah? [MR. REBUR N]: No. In reaching her conclu sion, Judge Geter instead credited Reburn s testimony on direct examination. Reburn there stated that he asked Ellison during the 15 April 2003 interview if he received a fee and that Ellison replied I paid it to Mr. Moody. Ellison maintains that he never knew there was a misunderstanding about the fee he received from Moody and, in accordance with the Comment to MRPC 8.1, he cannot be in violation of that rule.17 17 In his opinion, there w as never a q uestion thro ughout h is The relevant portion of the Comment states, [t]his Rule also requires affirmative (continued...) 23 correspondence with Bar Counsel and Reburn that he represented Moody at all times and the Firm never represented Moody. Contrary to this contention, Judge Geter correctly found a violation based on the executed retainer agreement and fee arrangement with the Firm, the termination letters from Moody to the Firm, and the letters and conversations between Strulson and Ellison regarding representation of Mo ody. In addition, during Rebu rn s interview on 15 A pril 2003, he asked Elliso n if he had received a fee. At that point, Ellison knew that there was a question regarding the representation, fee arrangement, and disbursement of settlement proceeds to Moody; he was on notice of the misrepresentations and did not make the appropriate disclosures to correct the misapprehension of Bar Counsel and Reburn throughout the investigation. Ellison lastly excepts to Judge Geter s finding of a violation of MRPC 8.4(c). Judge Geter explained that Ellison s 7 November 2002 letter, in which he informed Strulson that the Firm no lo nger represented Mo ody and to direct all futu re inquiries to Mo ody, misrepresented his ongoing represen tation of Mood y. Judge Geter found th at this letter s main purpose was to declare erroneously the Assignment null and void and allow Ellison to avoid paying Strulson under the Assignment. Furthermore, the hearing judge found that Ellison s dishonesty in misrepresenting the facts to Reburn supported finding a violation of (...continued) clarification of any misunderstanding on the part of th e admissio ns or disciplin ary authority of wh ich the p erson in volved becom es awa re. 24 MRPC 8.4(c). Once ag ain, there is am ple eviden ce in this reco rd to support Judge G eter s findings and conclusions. III. Bar Counsel excepts to Judge Geter s refusal to find that Ellison s conduct violated MRPC 8.4(d). The same evidentiary findings supporting the violations of MRPC 8.4(c) and 8.1(b) provide clear and convincing evidence that Ellison engaged in conduc t that is prejudicial to th e administra tion of justice . Bar Cou nsel is correc t. We previously have found violations of MRPC 8.4(d) when a lawyer s specific act of dishonesty might cause the public to lose confidence in lawyers generally and respect for the judicial system as a whole. Attorney Grievan ce Com m n v. W hite, 354 Md. 346, 364, 731 A.2d 447, 457 (1999) (citing Attorney Grievance Comm n v. Richardson, 350 Md. 354, 368, 712 A.2d 525, 532 (1998) (citing Maryla nd State Bar Ass n v. Agnew, 271 Md. 543, 549, 318 A.2d 811, 814 (1974 ))). It is almost axiomatic that at the foundation of the rule of law is respect for the law, courts and judges who administer it. Attorney Grievance Comm n v. Link, 380 Md. 405, 425, 844 A.2d 1197, 1209 (2004). In White, we overruled the respondent s exception to violations of MRPC 8.4 (c) and (d) where her testimon y under oath was at the very least, dishonest, deceitful, and misrepresented the truth about her involvement in the case. 354 Md. at 363, 731 A.2d at 457. This same dishonesty, which was clea rly a violation of MRPC 8.4(c), also violated 8.4 ( d) becaus e it engend ered pub lic disrespect of the courts that was prejudicial to the administration of justice. 25 In Attorney Grievance Comm n v. Link, we fashioned a test to determine when an attorney s non-crim inal condu ct might rise to a violation of MRPC 8.4(d). We stated that conduct violated M RPC 8 .4 (d) whe n it was so e gregious a s to make the harm or potential harm, flowing from it pate nt will that conduct be considered as prejudicing, or being prejudicial to, the administration of justice. Link, 380 Md. at 429, 844 A.2d at 1211-12. We did not conclude that Link s condu ct violate d MR PC 8.4 (d) because his inappropriate verbal conduct towards Maryland Vehicle Administration employees d id not rise to a level where the harm o r poten tial harm flowin g from his com ments w as paten t. Id. at 429, 844 A.2d at 1212. The analytical test employed in Link was rejected by some mem bers of this Court as lacking sufficiently fair notice to lawyers of potential future conduct that would violate the standard, and consequently, MRPC 8.4(d ). Id. at 432, 8 44 A.2 d at 121 3 (Rak er, J., dissenting). The dissent fashioned an alternative test to determine when an attorney s noncriminal conduct was prejudicial to the administration of justice that, in the dissent s view, more properly aligned our interpretation of MRPC 8.4 (d) with our prior holdings. Judge Raker stated that an attorney s non-criminal conduct must have some connectio n, directly or indire ctly, to the p ractice o f law, before it violates 8.4(d). Id. In her dissent in Link, Judge Raker cited approvingly to Judge Eldridge s exacting research of our cases considering alleged violations of MRPC 8.4 (d) in his diss ent in Attorney Grievance Comm n v. Sheinb ein, 372 Md. 224, 277-78, n. 12, 812 A.2d 981, 1012- 26 13, n. 12 (2002) (Eldridge, J., dissenting). Judge Eldridge noted there that we had found violations previously of MRPC 8.4 (d) for non-criminal conduct where an attorney s personal conduct concerned his or her own legal practice or relation ship w ith his or her clien ts. Id. For example, in Attorney Grievance Comm n v. Bridges, 360 Md. 489, 514, 759 A.2d 233, 246 (2000), we held that Bridges direct attempt to conceal inappropriate behavior was sufficient to find a violation of MRPC 8.1 (b). That same conduct (refusing to respo nd to Bar Counsel s requests for information and refusing to attend a hearing before an Inquiry Panel) and concealing his whereabouts from Bar Counsel before a hearing of the Inquiry Panel was suff icient to support a violation of M RPC 8.4 (d). Regardless of this diaspora within the C ourt, both camps agree that Ellison s conduct satisfies either test. We sustain Bar Counsel s exception and conclude that Ellison s conduct violated MRPC 8.4 (d). His failure to disclose to Bar Counsel (and Reburn) his continued representation of Moody (and his $1,750.00 fee), until faced with producing the ultima te documentation of his violation, w as misleadin g and an a ttempt to avo id disclosure . His dishonest and deceitful conduct regarding Strulson and the A ssignmen t not only violates his obligations under the Maryland Rules of Professional Condu ct, but also en genders a public disrespect for attorneys and the courts. This conduct is connected inherently with the Ellison s practice of law on behalf of a client and with his cavalier manner of addressing valid assignments with third-party assignees. 27 Furthermore, his continued dishonest and deceitful conduct with Reburn and Bar Counsel regarding his allegedly-severed ties with Moody also engenders disrespect for the attorney grievance p rocedure a nd the judic ial system as a w hole. This c onduct is b oth directly and indirectly connected with the practice of law implicating the appropriate ethical obligation of an honest response to Bar Counsel s investigation and revealing Ellison s disrespect as a who le for his ob ligations und er the Ma ryland Rules o f Professio nal Cond uct. IV. We now a ddress the app ropriate sanctio n. We reiterate that [t]he purpose of these proceedings is not to punish the lawyer, but any sanction imposed should deter other lawyers from engaging in similar misconduct. Stolarz, 379 Md. at 402, 842 A.2d at 50 (citing Attorney Grievance Comm n v. Mooney, 359 Md. 56, 96, 753 A.2d 17, 38 (2000)). We protect the public by preventing future attorney misconduct only when the sanctions imposed are commensurate with the nature and gravity of the violations and the intent with which they were c omm itted. Id. (citing Attorney Grievance Comm n v. Awuah, 346 Md. 420, 435, 697 A .2d 446 , 454 (1 997)). It is once again useful to remind ourselves of the American Bar Association s sugge sted inq uisitory fra mew ork fo r fashio ning an approp riate san ction. (1) whether the lawyer has violated a duty owed to a client, to the legal system, or to the profession; (2) whether the lawyer acted intentionally, knowingly, or negligen tly; (3) the amount of the actual or potential injury caused by the misconduct; and 28 (4) the existence of any aggravating or mitigating factors. Model Ru les for Lawyer Disciplinary En forcement R. 10 (c) (1999). We have discussed already Ellison s n umerou s ethical lapse s in this case. H is transgressions include dishonesty with and misrepresentations to Bar Counsel in connection with this disciplinary matter, improper contingency fee arrangements, improper handling of property belonging to a third party assignee, various Maryland Rules violations regarding the handling of funds in attorney trust accounts, a nd attorney m isconduc t involving d ishonesty and the admin istration o f justice . In reviewing Judge Geter s findings, we find that Ellison acted intentionally, the most culpable mental state, because he acted with a conscious objective or purpose to accomplish a particular result. Attorney Grievance Comm n v. Glenn, 341 Md. 448, 485, 671 A.2d 463, 481 (1996) (citing Standard 3.0 of the ABA Standards for Imposing Lawyer Sanctions, reprinted in Selected Statutes, Rules and Standards on the Legal Profession, 287, cmt. at 300 (1987)). 18 It is evident from Judge Geter s findings that Ellison acted with intent to deny Strulson his fees. He further acted with intent to hide from Bar C ounsel and Re burn his continuing representation of Moody and the receipt of a fee for that representation. Ellison knew o f the details o f his represe ntation of M oody and h is duty to fulfill the Assignm ent. The hearing judge found that Ellison knew, or should have known, from the 18 The M odel Rule s were originally adopted in August 1989 by the American Bar Association s House of Delegates and last amended in August 2002. The version of the standards cited in Glenn is substantially identical to the current Model R ule 10(c). 29 plain text of the A ssignmen t that it was still valid . His subse quent conduct during the investigation demons trated his inten t to obscure the facts fro m the eyes of Bar Co unsel. There was no actual loss suffered by the Complainant, Strulson, because Moody eventually paid the ba lance. Altho ugh Ellison claims that M oody was h appy with his representation, the fact rem ains that M oody paid $1 ,022.00 to S trulson out o f his personal funds. Lastly, we exam ine any aggra vating and mitigating fa ctors. Con trary to Bar Counse l s belief that there are no mitigating factors, we credit Ellison with an absence of a prior disciplinary record and relative inexperience in the practice of law after his admission to the Maryland Bar in 2000. In regard to the latter factor, however, we note that Ellison is not necessarily youthful, having received his baccalaureate degree in 1993. A lso, we take note that two sets of violations found to have occurred here are pre dicated on the same c onduct the Rule 16-606 and 16-609 vio lations and the violation of M RPC 1.15(a). These mitigating factors, however, do not temper sufficiently the intentional dishonesty exhibited by Ellison throughout his interactions with Strulson over the Assignment and with the Office of Bar Counsel during the investigation. This conduct alone, which cuts to the core of our ethical standards for attorneys, merits disbarment. We find Judge Cathell s words from Attorney Grievance Comm n v. Vanderlinde, 364 Md. 376, 418, 773 A.2 d 463, 48 8 (2001), c ompelling still: Unlike matters relating to competency, diligence and the like, intentional dishonest conduct is closely entwined with the most 30 important matters of b asic charac ter to such a d egree as to make intentional dishonest conduct by a lawyer almost beyond excuse. Honesty and dishonesty are, or are not, pre sent in an attorney s charac ter. Hone sty is of paramount importance in the practice of law. Attorney Grievan ce Comm n v. Blum, 373 Md. 275, 304, 818 A.2d 219, 237 (2003) (ordering disbarment for attorney that made multiple misrepresentations in an attempt to obfuscate the truth and save his own skin ). In the absence of more significant mitigating factors than are present here, intentional dishonesty by a lawye r admitte d to the M aryland B ar merits disbarm ent. Attorney Grievance Comm n v. Goodman, 381 Md. 480, 499, 850 A.2d 1157, 1168 (2004) (ordering disbarment of attorney that com mitted intentional dishonesty in representing himself as another attorney); Vanderlinde, 364 Md. at 419, 773 A.2d at 488 (attorney intentionally embezzled money from her employer); Attorney G rievance C omm n v. White, 354 Md. 346, 367-68, 731 A.2d 447, 459 (19 99) (attorney inte ntionally comm itted perjury and other misrep resenta tions). We thus order that Ellison be disbarred. IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING THE COSTS OF ALL TRANSCRIPTS, PURSUANT TO MARYLAND RULE 16-715(C), FOR WHICH SUM JUDGEMENT IS ENTERED IN FAVOR O F T H E A T T O R N E Y G R I E V A N CE COMMISSION AGAINST JARED K. ELLISON 31

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