Attorney Grievance v. Lee

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Attorney Grievance Commission v. Lee, AG N o. 8, Sep t. Term 2004. ATTORNEY GRIEVANCE - MARYLAND RULES OF PROFESSIONAL CONDUCT 1.3, 1.4(a), 8.1(a), 8.4(c) - SANCTION - INDEFINITE SUSPENSION Indefinite suspensio n with leave to rea pply no earlier th an one year w as an app ropriate sanction where, in the absence of mitigating circumstances and the presence of prior Maryland Rules of Professional Conduct ( MRPC ) violations, the Respondent violated MRPC 1.3 (diligence), 1.4(a) (communication), 8.1(a) (Bar admission and disciplinary matters), and 8.4(c) (misrepresentation) by largely neglecting his client s case for nearly two years, failing to respond to his client s repeated requests for both information regarding the status of the matters for which he was retained and the return of transcripts and papers, and misrepresenting to Bar Counsel the reason for inactivity in the case. Circuit Co urt for Baltim ore Cou nty Case # 03-C-04-005400 IN THE COURT OF APPEALS OF MARYLAND AG N o. 8 September Term, 2004 ATTORNEY GRIEVANCE COMMISSION v. NORM AN JO SEPH L EE, III Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Harrell, J. Filed: July 26, 2006 This is the second round with this Court for this particular case. Previously, in Attorney Grievance Commission v. Lee (Lee I), 387 Md. 89, 874 A.2d 897 (2005), we remanded this matter to th e hearing ju dge poten tially to receive new evidence and to revis it, in light of a ny new eviden ce, her credibility determinations and findings of fact and conclusions of law as t o certain witnes ses and Respo ndent, N orman Joseph Lee, III. Lee I, 387 Md. at 119-120, 874 A.2d at 915. The impetus for the remand was a factual dispute as to whether Responden t s client, Mr. John Henry Sm ith, or his wife (the Com plainant ), received certain written communications claimed to have been sent to them from Respondent s law office. We shall not repeat at this point much of what was stated in our earlier opinion. The fuller background of the underlying complaint against Respondent may be found there. A summary of the earlier evidentiary hearings and the hearing judge s findings of fact and conclusions of law will be reiterated later in this opinion. In furtherance of the remand, a hearing was held by the hearing jud ge, the Ho norable Vicki Ballou-Watts, on 1 September 2005. Respondent produced as a witness Ms. Kathryn Jacobs, Superviso r of the M ail Room at the Western Co rrectional Institution ( WCI ), w here Respondent s former client, John Henry Smith, is incarcerated. Ms. Jacobs has been employed in the Mail Room at the facility since it opened in 1996. Her work responsibilities included everything that goes on in the Mail Room . . . [including] the processing of legal mail. 1 Logbooks are maintained with the date of receipt of each piece of legal mail, the recipient inmate s cell location (coded by his unique Division of Corrections identifying number), the sending person s o r entity s name, and a written signature of receipt by the inmate. Testifying from the re levant pages in the log books (copies of which were received in evidence), Ms. Jacobs established that pieces of legal mail emanating from Responden t s law office were received at WCI and acknowledged as received by Smith on: 7 May 2001; 29 November 2001; 1 May 2002; 17 May 2002; 20 May 2002; 10 July 2002; and 19 Ju ly 2002.2 No one in the administration or the guards at WCI knew the content of the leg al mail. 3 Respondent then sought to elicit testimony before the hearing judge from the Assistant Bar Counsel prosec uting the disc iplinary matter. It ap peared tha t Mr. Lee wished to interrogate Assistant B ar Coun sel with reg ard to repres entations Bar Counsel made at the October 2004 he arings relating to his efforts to ascertain from conversation with personnel 1 Legal mail was define d by Ms. Jacobs as a nything from courts, attorneys [and] Parole Commissioner[s] to inmates. 2 Bar Counsel objected to the testimony of Ms. Jacobs and the do cumenta ry exhibits based on th e rep resentati on th at, at the p rior e vide ntiar y hearing on 8 October 2004 , Mr. Smith had denied receiving only a copy of a 29 April 2002 letter from Respondent to the State Parole Co mmission requesting a hearing in Mr. Smith s case. The hearing judge overruled Bar Counsel s objection. 3 Although a guard watches the recipient inmate open the e nvelope, the only concern of the guard is to foreclose the receipt of contraband. The guard is not supposed to read the communication. 2 at WCI the bonafides of whether Respondent had sent legal mail to Mr. Smith. The hearing judge granted Assistant Bar Counsel s motion to quash the witness subpoena. On 17 October 2005, Judge Ballou-Watts filed additional written Findings of Fact and Conclusions of Law. In relevant part, she stated: In its Petition, the Attorney Grievance Commission sought disciplinary action against Respondent for alleged miscond uct, in violation of the Maryland Rules of Professional Conduct, as follows: A. Violatio n of R ule 1.1, b y failing to provide competent representation by accepting representation in a legal matter involving the investigation and pursuit of post conviction relief or other court p roceeding s at a time when the Respondent relied significantly upon his paralegal s expertise in post conviction matters; B. Violation o f Rule 1.3 , by failing to act w ith reasonab le diligence and promptness over nearly a two year period in the pursuit of the release from incarce ration of Jo hn Hen ry Smith either through court proceedings or by means of parole; C. Violation of Rule 1.4 (a) (b), by failing to respond to his client s repeated requests for information in a timely fashion; failing to advise his client of the status of the legal matter for which he was retained; and failing to afford the client information necessary to make decisions about the legal matter and the representation; D. Violation of Rule 1 .5 (a), by charging and retaining an unearned and therefore unreasonable fee in the amount of $3,500.00; E. Violation o f Rule 1.16 (d), by failing to refund a significant portion, if not all, of the $3,500 fee received upon te rmination of representation in February 2003; 3 F. Violation of Rule 5.3 (a) (b) (c) and Rule 5.5 (a) (b), by employing a disbarred attorney, Lester V. Jones, and entrusting him to perform services without appropriate supervision which otherwise constituted the unauthorized practice of law; G. Violation of Rule 8.1 (a) and Ru le 8.4 (b) (c) (d), b y falsely stating or misrepresenting to the Attorney Grievance Commission that the reason for delay in pursuing the matter for which he was retained was the unavailability of transcripts. Petitioner abandoned the Rule 1.1, Rule 5.3, and Rule 5.5 violations. Findings of Fact and Conclusions of Law were filed on November 29, 2004. This court found by clear and convincing evidence that the Respondent committed violations of the Maryland Rules of Professional Conduct 1.3, 1.4 (a), 8.1 (a) and 8.4 (c). This matter was been rem anded by the Court of Appea ls as a result of R esponde nt s request f or conside ration of ne wly discovered evidence. During the original evidentiary hearing, Western Correctional Institute (WCI) inmate John Henry Smith testified that he did not receive a copy of Respondent s April 29, 2002 letter to the Maryland Parole Commission. In the letter, Respondent requested a parole hearing. During the ev identiary hearing, Bar Counsel suggested that the inmate had never received a ny written com municatio n from the Respon dent. After this court completed its Findings of Fact and Conclusions of Law, Respondent filed a post-h earing mo tion in connection with new ly discovered mail records from WCI which, if admitted, w ould tend to show tha t the inmate did receive a copy of Responden t s April 29th letter, along w ith certain additional correspondence from Responden t s law office. In its Opinion and Order dated M ay 12, 2005, the Court of Appea ls remand ed the case to this court to consider the newly 4 discovered evidence, if admitted. [ ]. Respondent argued that this evidence might be a basis for questioning John S mith s testimony at the evidentiary hearing and any weight afforded to this testimony by the [hearing] judge. [ ]. Therefore, the issue on remand is whether this evidence, and its implication on the overall credibility assessments of Lee and Bar Counse l s witnesses, are potentially material to each of the cou rt s underlying Findings of F act and resultant Conc lusions. [ ]. III. FINDINGS OF FACT At the evidentiary hearing conducted on September 1, 2005, this c ourt rece ived testim ony from Kathryn Jacobs . Ms. Jacobs is the mailroom supervisor at WCI. As the mailroom supervisor, she is responsible for processing all incoming and outgoing mail for inm ates includ ing corresp ondence , which is characterize d as legal mail. Legal mail includes correspondence from the courts, attorneys, and the Maryland Parole Commission. Accord ing to Ms. Jacobs, who testified regarding mailroom procedures during the relevant time period (20 02), whe never lega l mail was delivered to WCI, it was separated from other correspondence. Legal mail was r ecorded in a logbook for the specific housing unit where the inm ate resid ed. The legal mail was then bound to the logbook and placed in a mailbag. That bag was transported to the designated housin g unit. Onc e delivered to the unit, the mail was given to the inmate by a correctional officer. The inmate was required to sign the logbook for each correspondence receive d. Mail was not opened until the inma te received it from the correctional of ficer. In addition, neither the correctional officer nor the mailroom staf f read the inmate s mail. Responden t s Exhibit 1 consists of photocopies of various lega l mai l logbook entries for m ail re ceiv ed by inmate John Hen ry Smith in housing unit 3. Also included in the exhibit was a copy of the cover of the aforementioned logbook. These logbook entries show that inmate Smith signed for correspondence from Respo ndent s law office on May 1, 2002, 5 May 7, 2002, May 17, 2002, May 20, 2002, July 10, 2002, and July 19, 2002. During the original evidentiary hearing, Mr. Smith denied receiving correspondence from Respondent, which was dated April 29, 200 2. [ ]. Although th e specific co ntents of m ail received by Smith on May 1, 200 2 (or any other date) is unknown, a reasonable inference can be drawn that John Henry Smith received one or both letters addressed to Mr. Smith and the Maryland Parole Commission, respectively. Both were dated April 29, 2002. As for the additional correspondence signed for by Mr. Smith in May and July 2002, a re asonable inference can be drawn that he was sent letters or copies of letters from the Responden t s law office as reflected in Respondent s E xhibits 8, 9, 11, and 12 from the original evidentiary hearing. The Complainant Mary Ellen Smith testified that she did not receive copies of certain correspo ndence from Responden t s law office. However, the testimony of Ms. Kathryn Jacobs shed s no n ew light on M s. Sm ith s cred ibility. In fact, while this court accepts as true the testimony and exhibits offered during the September 1 , 2005 evidentiary hearing, the original cr edibility assessments, findings and conclusions remain unchanged. The assessments, findings an d conclus ions rema in unchanged because they were primarily based upon the many inconsistencies between Respondent s testimony and the content of his exhibits, including but not limited to Respondent s client ledger, list of itemized calls, correspondence and internal office memorandum. CONCLUSION This court has made additional findings of fact based upon the testimony and exhibits offered during the September 1, 2005 evidentiary hearing. However, this new evidence has no 6 material effect up on the cou rt s original Findings of Fact and Conclusions of Law. As a result, the findings and conclusions that Respondent violated Maryland Rules of Professional Conduct 1.3, 1.4 (a), 8.1 and 8.4 (c) are hereby restated and reaffirmed. Neither Bar Counsel nor Respondent filed further written exceptions4 with this Court to Judge Ballou-Watts supplemental Findings of Fact and Conclusions of Law filed on 17 October 2005, although Respondent had filed extensive written exceptions5 to her earlier 4 Md. R ule 16-75 8 provide s, in pertinent p art: Rule 16-758. Post-hearing proceedings. (a) Notice of the filing of the record. Upon receiving the record, the Clerk of the Court of Appeals shall notify the parties that the record has been filed. (b) Exceptions; recommendations. Within 15 days after service of the notice required by section (a) of this rule, each party may file (1) exceptions to the findings and conclusions of the hearing judge and (2) recommendations concerning the appropriate disposition und er Rule 16-759 (c ). 5 Regarding this Court s analysis when exceptions are filed and when they are not filed, Md . Rule 16-7 59 (b) prov ides, in pertine nt part: Rule 16-759. Disposition. * * * (b) Review by Court of Appea ls. (1) Conclusions of law. The Court of Appeals shall review do novo the circuit cou rt judge s conclusions of law. (2) Findings of fact. (A) If no exceptions are filed . If no exceptions are filed, the Court may treat the findings of fact as established for the purpose of determining appropriate sanctions, if an y. (B) If exceptions are filed. If exceptions are filed, the Court of (contin ued...) 7 Findings of Fact and Conclusions of Law filed on 29 November 2004. Bar Counsel filed with the Court on 4 January 2006 a written Recommendation for Sanction suggesting that indefinite suspension of Respondent was appropriate in this case. See Md. Rule 16-758 (b) (2). Respondent offered no written recommendation for disposition. Both sides appeared for oral argument before the Court on 3 February 2006, at which time Respondent argued for dismissal of the charges. I. As a thresho ld matter , we mus t dete rmin e the impact, if any, of Respondent s decision not to file additional exceptions to Judge Ballou-Watts 17 October 2005 supplemental findings of fact on our analytical obligations under Md . Rule 16-759 (b) (2). Based on the particular circumstances of this case, we conclude that Md. Rule 16-759 (b)(2)(B) (when exceptions are filed) should guide our consideration of any factual disputes. 5 (...continued) Appea ls shall determine whether the findings of fact have been proven by the requisite standard of proof set out in Rule 16-757 (b). The Court may confine its review to the findings of fact challenged by the excep tions. The Court shall give d ue regard to the opportunity of the hearing judge to assess the credibility of witnesses. Md. Rule 16-7 57 (b) prov ides that [t]h e petitioner ha s the burde n of prov ing the ave rments of the petition by clear and convincing evidence. A respondent who ass erts an affirmative defense or a matter of mitigation or extenuation has the burden of proving the defense or matter b y a prepo nderan ce of th e evide nce. 8 In her 17 October 2005 supplemental findings of fact and conclusions of law, Judge Ballou-W atts recanted only one set of factual findings from her 29 November 2004 findings and conclusions, that is, that John Henry Smith had not received from R espondent s law f irm certain mail commun ications during Ma y and July 2002 regarding R espondent s representation of Mr. Smith. In all other respects, the hearing judge reaffirmed the remaining assessments, findings, and conclusion s of her ea rlier decision. H er apparen t reasoning in reaching that result was that the remaining assessments, findings, and conclusions w ere primarily based upon the many inconsistencies between Respondent s testimony and the content of his exhibits, including but not limited to Respondent s client ledger, list of itemized calls, correspondence and inte rnal off ice mem orandu m. (Emphasis in original). Also, the hearing judge noted that the new evidence adduced by Respondent at the hearing held on remand did not refute in any direct way the Complainant s earlier testimony regarding not receiving letters or copies of other letters assertedly sent to her by Respondent s office regarding her husband s case. As noted earlier, Respondent filed extensive written exceptions to the hearing judge s 29 November 2004 findings of fact and conclusions of law. Because the hearing judge s 17 October 2005 supplemental findings of fact and conclusions of law, on virtually all material points, re-adopted her earlier decision, Respondent s earlier exceptions remain as relevant and responsive as their intrinsic m erit will reveal by our analysis to f ollow. It w ould eleva te insupporta bly form over substance, under these circumstances, to require a mere repetition 9 of those earlier exceptions in response to the 17 October 2005 supplemental findings and conclusions, especially in view of the fact that Respondent prevailed on the limited factual scope of the reman d. Accord ingly, we shall consider those earlier exceptions by Respondent which remain relevant, according to the standa rd of M d. Rule 16-759 (b)(2)(B), as applied to the hearing judge s combined findings and conclusions. II. The hearing judge concluded that Respondent committed violations6 of Maryland Rules of Professional Conduct ( MRPC ) 1.3 7 (diligence), MRPC 1.4(a)8 (communication ), 6 Prior to the hearing judge taking the case under advisement, Bar Counsel withdrew charges that Lee violated MRPC 1.1, 5.3, and 5.5. 7 MRPC 1 .3 states: Rule 1.3. Diligence. A lawyer shall act with reasonable diligence and promptness in representing a client. 8 MRPC 1 .4(a) states: Rule 1.4. Communication. (a) A lawyer sh all keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. 10 MRPC 8.1(a)9 (Bar admission and disciplinary matters), and MRPC 8.4(c)10 (miscond uct) as alleged in the Petition for Disciplinary Action. In Lee I, we outlined the findings of fact and conclusions of law by the hearing judge: The Petition for D isciplinary Actio n alleged violations of MR PC 1.3 [ ] (diligen ce), M RPC 1.4 [ ] (communication), MRPC 1.5(a)[ ] (fees), MRPC 1.16(d)[ ] (declining or terminating representation), MRPC 8.1(a) [ ] (bar admission and disciplinary matters), and MRPC 8.4(b), (c), (d)[ ] (miscond uct). In his answer to the petition, L ee denied any miscond uct. A two day evidentiary hearing was held before Judge Vicki Ballou-Watts of the Circuit Court f or Baltimo re Coun ty on 8 and 13 O ctober 2004. Af ter hearing testimony from Lee, Mary Smith, John Smith, an official from WC I, and Lee s secretary, the hearing judge issued her Findings of Fact and Conclusions of Law on 29 November 2004. She found, by clear and convincing evidence, that Lee v iolated MRP C 1.3, 1.4(a), 8.1(a), and 8.4(c). Lee violated MRPC 1.3, she concluded, by failing to review personally Smith s case materials for nearly two years; failing to forward to his clients the results of any research or draft documents, as promised in various correspondence; failing to manage properly his workload; and, failing to meet w ith or speak to John and Mary Sm ith for nearly a two year period. The hearing judge concluded that Lee 9 MRPC 8 .1(a) states: Rule 8.1. Bar admission and disciplinary matters. An applicant for admission or reinstatement to the bar, or a lawyer in connec tion with a bar adm ission applica tion or in con nection w ith a disciplinary m atter, shall not: (a) kno wingly m ake a f alse state ment o f mater ial fact[ .] 10 MRPC 8 .4(c) states: Rule 8 .4. Mis cond uct. It is profession al miscond uct for a law yer to: *** (c) eng age in c onduc t involv ing dish onesty, fra ud, dec eit or mis represe ntation[ .] 11 violated MRPC 1 .4(a) by failing to respond to the Smiths requests for information, both written and made by telephone; failing to forward the results of any research or draft documents, as promised in various correspondence; and, failing to respond to Mary Smith s repeated reques ts for the return of transcripts and papers for a period of three weeks. The judge also concluded that Lee violated [MRPC] 8.1(a) and 8.4(c) when he misrepresented to the Attorney Grievance Commission that the cause for delay in pursuing the legal matter for which he was retained was due to the unavailability of transcripts. Judge Ballou-Watts, however, found no clear and convincing evidence to support a conclusion that Lee violated MRPC 1.5(a) and 1.16(d). Rather, she was persuade d by Lee s clie nt ledger to conclude that there w as not sufficient eviden ce from w hich to find that no appreciable work had been performed. She stated that, altho ugh it wa s pos sible that M ary Smith may have been entitled to a refund of a po rtion of her retainer, there was insufficient evidence to accurately determine what portion of the fee was unearned. Lee filed several exceptions to the h earing judge s written Findings of Fact and Conclusions of Law, disputing several, if not most, of the factual findings. Lee also filed a Motion for Reconsideration Based on Fraud, Deceit and Misrepresentation, supported by alleged new evidence that was not introduced or considered at the evidentiary hearing, which he boldly alleged d emonstra ted that Bar Counse l deliberately had presented false testimony. Lee also argued that the hearing judge precluded him from im peaching Bar Counsel s witness, Mary Smith, by improperly preventing him from introducing evidence of statements reportedly made by her at the Peer Review Panel me eting that suppo sedly were inc onsistent w ith some of her statements made at the evidentiary hearing. Although Bar Counsel filed a response to Lee s exceptions requesting that his exceptions be overruled, no exceptions were taken by bar counsel to the hearing judge s findings of fact or conclusions of law. Bar Counsel seeks an indefinite suspension as the appropriate sanction for Lee s violations. (Footnotes omitted). Lee I, 387 Md. at 99-102, 874 A.2d at 903-04. 12 As state d, supra, the hearing judge reviewed the new e vidence tak en with reg ard to Mr. Smith s receipt of written correspondence from Respondent and concluded that the new evidence ha[d] no material effect upon the court s original Findings of Fact and Conclusions of Law because she based her conclusions in large part upon earlier testimony and exhib its offered by Respondent which were not impeached by the remand procee ding. In reviewing the hearing judge s findings of fact and conclusions of law, we shall take into account the new evidence, which established that certain pieces of legal mail emanating from Respondent s law office were received at the correctional facility and acknowledged as received by Mr. Smith on: 7 May 2001; 29 November 2001; 1 May 2002; 17 May 2002; 20 May 2002; 10 July 2002; and 19 July 2002. III. We accept a hearing jud ge s findin gs of fact u nless we d etermine tha t they are clearly erroneous. Attorney Grievance Comm n v. Stolarz, 379 M d. 387, 3 97, 842 A.2d 42, 47 (2004); Attorn ey Grie vance Com m n v. C ulver, 371 Md. 265, 274, 808 A.2d 1251, 1256 (2002). This deference accorded to the hearing judge s findings is appropriate, in part, because the fact finder is in the best position to assess the demeanor-based credibility of a witness. Stolarz, 379 Md. at 398, 842 A.2d at 48; Attorney Grievan ce Comm n v. Sheridan, 357 Md. 1, 17, 741 A.2d 1143, 1152 (19 99); see also Md. Rule 16 -759 (b)(2)(B) ( Th e Court shall give due regard to the opportunity of the hearing judge to assess the credibility of witnesses. ). The hearing jud ge is perm itted to pick a nd choo se which evidence to rely 13 upon from a conflicting array when determ ining fin dings o f fact. Attorney Grievance Comm n v. Fezell, 361 Md. 234 , 253, 760 A.2d 1 108, 1118 (200 0) (Citation omitted). In deciding whether the hearing judge s findings of fact are clearly erroneous where exceptions are filed, this C ourt looks f irst to Md. Rule 16-759 (b)(2)(B), which states that the Court of Appeals shall determine whether the findings of fact have been proven by the requisite standard of proof set out in Rule 16-757(b ). Under M d. Rule 16-757(b ), where exceptions to findings of fact are filed by Bar Co unsel, we c onsider tha t Bar Cou nsel, before the hearing judge, ha[d ] the burden of proving the averments of the petition by clear and convincing evidence. See also Attorney Grievance Comm n v. DiCicco, 369 Md. 662, 681, 802 A.2d 1014, 1025 (2002) ( Clear and convinc ing evidence mu st be more than a m ere preponderance but not beyond a reasonable doubt. ) (Internal quotations omitted) (Citations omitted). Thus, where the exceptions are filed to finding s that were favora ble to the Respondent attorney, under Md. Rule 16-757(b), we consider also that the attorn ey who asserts an affirmative defense or a matter of mitigation or extenuation has the burden of proving the defense or matter b y a prepo nderan ce of th e evide nce. 11 See also Attorney 11 Md. Rule 16-7 10 (d) states: Factual findings shall be supported by clear and convincing evidence. We have previously addressed the relationship of Md. Rules 16-710 (d) and 16-757 (b ): [t]he clear and convincing standard of Rule [16-710 (d)] applies to the measure of proof imposed upon the Attorney Grievance Comm ission in factu al determinations essential to establishing its case against the attorney. It does not ap ply to (contin ued...) 14 Grievance Comm n v. Garfield , 369 M d. 85, 797 A.2d 757, 765 (2002) (stating that an attorney in a d iscip linar y proceeding need only establish factual matters in defense of an attorney s position by the preponderance of the evidence, including whether mitigating circumstances existed at the tim e of the alleged misco nduct ). IV. Based on our rev iew of the record, w e sustain on e of Resp ondent s e xceptions regarding a finding th at Respon dent failed to commu nicate with Mr. Smith for nearly two years. Despite sustaining that exception, we overrule Respondent s other exceptions and sustain the hearing judge's conclusions of law that Respo ndent violated M RPC 1.3, 1.4(a), 8.1(a), and 8.4(c). 12 11 (...continued) factual matters sought to b e established by the attorney in defense of the attorney s position, including whether mitigating circumstances have b een sho wn. As to this, the preponderance of the evidence standard is the applicable measure of proof. Attorney Grieva nce C omm n v. G arfield, 369 Md. 85, 99 n.13, 797 A.2d 757, 765 n.13 (2002) (Alteration in original) (quoting Attorney Grievance Comm n v. James, 355 Md. 465, 483, 735 A.2d 1027, 1037 (1999) and Attorney Grievance Comm n v. Bakas, 322 Md. 603, 606, 589 A.2d 52, 53 (1991)). 12 The hearing judge also concluded that Respondent did not vio late M RPC 1.5 (attorney fees) o r 1.16(d ) (declin ing or te rminatin g repre sentatio n). Petitioner filed no exceptions to the Findings of Fact and Conclusions of Law. Hence, we shall not review the findings or conclusion s regarding MR PC 1.5 or 1.16(d). 15 A. As to the hearing jud ge s findin gs of fact re levant to the R ule 1.3 violatio n, Respondent excepted to the hearing judge s factual determinations that Respondent failed to (1) re view pers onally, for nearly two years, th e transcripts, ple adings an d other do cuments delivered to his office by the C omplaina nt; 13 (2) forward to the Com plainant an d Mr. Sm ith documentary results of any research, draft petition, Petition for Writ of Error, and a Motion to Correct Illegal Sentence, as promised in correspondence dated 4 May 2001, 28 November 13 Respondent met with the Complainant, at her request and on behalf of her husband, on 9 Janu ary 2003 to discu ss the ca se. The Complainant testified that Respondent appeared to be unfam iliar with case and that R esponde nt requested an addition al month to review the case in order to recom mend how th e case s hould p roceed . Respondent claimed that he was familiar with the case, but needed the additional time to review the documents because he wanted to explain why no post-conviction petition or other court proceeding could be pursued. According to the client ledger introduced into evidence by Respondent, the only activity involving a review of transcripts or other case materials by Respo ndent w as the 6 .5 hours spent reviewing the case do cuments a nd transcrip ts on 14 Jan uary 2003, ne arly two years afte r the Co mplain ant had paid the retainer fee. The hearing judge found that Respondent requested the additional month for review because he had not been actively involve d in the case , knew v ery little about it, and delegated responsibility for the review, research, client contact and day-to-day management of the client file to his part-time paralegal Lester V. Jones. The hearing judge further found that there was no credible evidence that Respondent ever monitored the progress of the c ase file, performed a periodic review of the Smith file, set internal office time deadlines for the completion of work or made an independent assessment of the course of action, if any, to be taken on John He nry Smith s behalf before the meeting w ith Comp lainant on 9 January 200 3. After ne arly two years, Respondent finally met with the Complainant and began reviewing the transcripts. 16 2001, 15 May 2002, and 17 July 2002; (3) manage his case workload in a manner which would allow for th e timely research, review, evaluation, and pursuit of the matters for which he was re tained; and (4) meet w ith or talk w ith Mr. S mith ov er nearl y a two-yea r period . The hearing jud ge explicate d specifica lly the basis fo r her factua l findings in th is regard by highlighting the testimonial evidence and exhibits offered by Re spondent, Mr. Sm ith s testimo ny, and P etitioner s exhib its. We find clear and convincing evidence on this record to suppo rt the hearing judge s findings in support of her conclusion that Respondent violated MRPC 1.3, except the blanket finding of fact that Re sponden t [f]ailed to meet or talk with Mr. Smith over nearly a twoyear period. We perceive that the hearing judge intended by the latter finding to mean that Respondent failed to comm unicate with his client for nearly a two-year period. This perception is based on the fact that M RPC 1 .3 does no t dictate the modality of communication that an attorney might employ when representing his client in a rea sonably diligent and prompt manner. We conclude that this particular finding by the hearing judge was not suppo rted by clear and convincin g evidence, and was therefore clearly erroneous, in light of (1) the new evidence admitted at the September 2005 hearing that established that Mr. Smith received legal mail correspondence from Respondent on 7 May 2001, 29 November 2001, 1 May 2002, 17 May 2002, 20 May 2002, 10 July 2002, and 19 July 2002, and (2) Respondent s client ledger, which the hearing judge o bviously and necessarily credited, indicating by notation that Respondent or his paralegal accepted collect telephone 17 calls from Mr. Smith on the following dates: 6 April 2001 for 0.2 ho urs; 17 Ap ril 2001 for 0.2 hours; 4 May 2001 for 0.5 hours; 9 July 2001 for 0.2 hours; 1 November 2001 for 0.2 hours; 10 Jan uary 200 2 for 0 .2 hour s. See Attorney Grievance Comm n v. Maignan, 390 Md. 287, 295, 888 A .2d 344, 348-49 (2 005). 14 MRPC 1.3 provides that [a] lawyer shall act with reasonable diligence and promptness in representing a client. We conclude that Respondent violated R ule 1.3 because he neglected his client s matter as ev idenced by his failure to review case docu ments until nearly two years after he was retained, failure to manage his case workload in a manner which would allow for the timely research, review, evaluation, and pursuit of the matters for 14 When deciding that Respondent failed to com municate with M r. Smith for n early a two-year period, the hearing judge chose to believe the testimony of Mr. Smith to that effect and Res ponden t s client ledger (which sh e perceive d as indicating that when a telephone call placed by Mr. Smith was accepted by Respondent s office it was Lester Jones, the paralegal, that spoke with Mr. Smith) over the testimony of Respondent claiming that he had talked with Mr. Sm ith during that time period. Respondent excepted, stating that the client ledger w as incomp lete and therefo re the absen ce of an in dication that R esponde nt, rather than his staff, talked w ith Mr. Sm ith should n ot be determ inative. Resp ondent, however, cited no specific dates that he spoke personally with Mr. Smith on the telephone. Despite the failure of Respondent to note specific dates that he spok e with M r. Smith on the telephone, we o bserve that the client ledger, in fact, does indicate by notation that Respondent accepted c ollect telepho ne calls from Mr. Sm ith on the following dates: 6 April 2001 for 0.2 hours; 17 April 2001 for 0.2 hours; 4 May 2001 for 0.5 hours; 9 July 2001 for 0.2 hours; 1 Nove mber 2 001 fo r 0.2 ho urs; 10 J anuary 2 002 fo r 0.2 hours. The hearing judge conceded also that Respondent spoke with Mr. Smith at least on these latter three occasions. We note also that the hearing judge implicitly accepted as credible in her original evidentiary findings that Respon dent sent co rresponde nce, whic h Mr. Sm ith received, dated 4 May 2001, 28 November 2001, 15 May 2002, and 17 July 2002, because she found that Respondent failed to forward to Mr. Smith or Complainant the results of pleadings or papers promis ed in tha t corresp onden ce. 18 which he was retained, and failure to prepare any written pleading s or papers in the pursu it of the matter as promised to the client in correspondence.15 See Attorney G rievance Com m n v. Lee (Lee II), 390 Md. 517, 526, 890 A.2d 273, 278 (2006) (concluding in another case that Respondent displayed lack of diligenc e in viola tion of M RPC 1.3 by neglecting his client s legal matter for almost one year, during which Respondent filed no pleading, nor indicated to his client that there was no ba sis to do so). B. The hearing judge concluded that Respondent violated MRPC 1.4(a) in several respects. She found that Respondent failed to respond to ma ny telephone calls placed by M r. Smith requesting information regarding the status of matters for which Respondent was retained. The hea ring judge b ased this finding of fact upon the testimon y of Mr. Sm ith and Respondent and the client ledger introduced by Respon dent. 16 Accord ing to the client ledger, 15 On 29 April 2002, Respondent sent a letter to the Maryland Parole Commission requesting a parole hearing for Mr. Smith, which was noted for June 2002. Mr. Smith, however, requested an indefin ite postpone ment of th e parole he aring wh en he me t with the Division of Corrections case manager on 30 May 2002. The hearing judge also noted the Complainant s testimony that she disagreed w ith the pursu it of a parole hearing before the 2002 Gubernatorial election, citing then-Governor Parris N. Glendening s well-established life means life policy for violent offenders, an accurate description of Mr. Smith s reason for incarce ration. Despite Respo ndent s single letter to the parole commission in April 2002, we conclude that for the r easons indicate d, supra, Respon dent violated MRP C 1.3 by large ly neglecting his client s case over the two year representation. 16 Respondent claims that the hearing judge place[d] too much emphasis on the client ledger that he offered as Exhibit 16: The ledger was adm itted for purposes of addressing (contin ued...) 19 the hearing jud ge found that Mr. Sm ith placed a total of 188 collect calls to Respondent s law office between 16 March 2001 and 17 June 2003. Thirty-five calls were accepted by Responden t s office and, of those accepted, only eleven calls were of a duration of seven minutes or more. On 4 May 2001, 1 August 2001, and 10 October 2001, Respondent s law 16 (...continued) Responden t s alleged misconduc t, in violation of Rule 1.5(a), that he charge d and reta ined an unearne d and therefore unreason able fee in the amount of $3,500; also, it was admitted to explain the alleged misco nduct in violation of R ule 1.16(d), by failing to refu nd a signific ant portion, n ot all of the $3,500 fee received upon termination of representation. Respondent testified at trial that because he had accepted [Mr.] Smith s case on a flat fee basis, that he did not keep as detailed time records with regard to that representation. Therefore, after hearing at the Peer Review Committee from [Bar Counsel] and Comp lainant, that nothin g had be en done a t all in Responden t s representation of Smith, he directed his secretary to document all phone calls, correspondence to and from Complainant and [Mr.] Smith, correspondence to Warden Galley, the Maryland Parole Commission, letters to attorneys involved in represen tation of [M r.] Smith and his codefendent in 1972, etc. Respondent s secretary did so, putting estimated time to those do cumente d events, w hich are ref lected in the client ledger admitted as Re spondent s Exhibit 16. Respondent further testified that this client ledger did not include a lot of other time expended by Respondent and his paralegal that could not be definitely documented by phone logs or other correspondence. The client ledger, like the testimony offered by M r. Smith, the Complainant, and Respondent at the earlier hearing, was evidence for the hea ring judge to consider as part of her f actfinding undertaking. We give due regard to the hearing judge to assess the credibility of witnesses. We permit the hearing judge to choose which evidence to rely upon from a conflicting array. We sha ll not overrule the hearing judge s findings of fact here as they were supported by the client ledger. 20 office accepted Mr. Smith s collect calls, and, according to Respondent s client ledger, the hearing judge found that Mr. Smith spoke with Respondent s paralegal, Lester Jones, not Respon dent, on those dates. The hearing judge highlighted that, according to the client log, Respondent only spoke with Mr. Smith on three occasions 9 July 2001, 11 November 2001, and 10 Januar y 2002 for a co llective to tal of se ven m inutes. Respondent excepted to the finding that he did not respond to Mr. Smith s telephone inquiries about the case, stating that Mr. Sm ith participated in on-going discu ssions with Mr. Jones, and that Respondent spoke with Mr. Smith on several occasions using th e speakerphone function on his paralegal s telephone, noting his own testimony to that effect (although he did not iden tify the particular occasions in addition to the three occasions noted in the client ledger). Respondent also indicated that he visited Mr. Smith on 11 January 2003, nearly tw o years af ter the re presen tation be gan. As stated, supra, we sustain ed Resp ondent s exception to the hearing judg e s blanket finding that Respon dent failed to commu nicate with Mr. Sm ith for nearly a twoyear period in part because we observed that the client ledger admitted at the original evidentiary hearing (and relied upon by the hearing judge in her findings) indicated by notation that Respondent accepted collect telephone calls from Mr. Smith on the following dates: 6 April 2001 for 0.2 hours; 1 7 Apr il 2001 for 0.2 hours; 4 M ay 2001 for 0.5 hours; 9 July 2001 for 0.2 hours; 1 Nov embe r 2001 for 0.2 hours; 1 0 Janu ary 2002 for 0.2 hours. Thus, we find that the hearing judge s somewhat contradictory finding that Respondent did 21 not speak with Mr. Smith on 4 May 2001 is not supported by clear and convincing evidence. Even so, the evidence that Respondent or his paralegal accepted six collect telephone calls from Mr. Smith over the course of the representation is not sufficie nt, howev er, to overrule the hearing judge s finding of fact that Respondent failed to respond to the repeated telephone calls by Mr. Smith requesting information regarding the status of matters for which Respondent was retained. The ledger does not indicate the topic of discussion during any accep ted pho ne calls. W e theref ore sus tain this f inding . The hearing judge also made a finding of fact that, for a three-week period, Respondent failed to respond to the Complainant s repeated requests for the return of transcripts and papers on beh alf of M r. Smith . Respondent excepted, stating that this finding of fact was based on the Complainant s original grievance to the Commission and was not addressed specifically at the earlier evidentiary hearing. Respondent contends that, had he been questioned about the issue during the hearing, he would have testified that the transcripts and papers were available to the Complainant to pick up from his office, which she eventually did, after cancelling several appointments, due to conflicts in her schedule. Contrary to Respondent s non-testimonial assertions, we note that the Complainant s grievance was received by the hearing judge a s Petitioner s E xhibit 1. W e overrule th is excep tion. As stated previo usly, we sustain the finding of fact that Responden t failed to forward to Mr. Smith or th e Complainant the documentary results of any research, draft petition, 22 Petition for Writ of Error, and a Motion to Correc t Illegal Senten ce, as prom ised in corresp onden ce date d 4 M ay 2001 , 28 No vemb er 2001 , 15 M ay 2002 , and 17 July 2002 . In further sup port of the conclusion that Respondent violated MRPC 1.4(a), the hearing judge dete rmined tha t Respon dent failed to respond to the Complainant s written requests for information about the case in letters dated 14 July 2002 and 22 October 2002, and failed to forward to the Complainant the results of any research or production of any pleading drafts.17 Respondent excepted to the finding that he did not respond to the 17 Respon dent exce pts, stating that M r. Smith w as his client; therefore [he] was not aware of the nee d to discuss anything with the Complainant until she asked for her one and only meeting. H e noted tha t his secretary direc ted the Co mplainan t s telephone calls to Lester Jones throughout the representation. In Attorney Grievance Comm n v. Lee (Lee II), 390 Md. 517, 890 A.2d 273 (2006), we concluded that Respondent violated Rule 1.4 when he failed to com municate with his client, who was incarcerated at the time of representation, or his client s mother, the person who paid the attorney s fees and contacted Respondent several times over the course of representation with inquiries about her son s case: After execution of the retainer agreement and payment of the retainer fee, all communication on the part of Mr. Lee essentially stopped. There were inquiries from Mrs. Coleman on behalf of her son, [the client,] but the only response from Mr. Lee was a delayed response that was not very meaningful. If Mr. Lee did not inten d to comm unicate with his client through his mother, he could have explained that to the client. Having failed to do so, the course of dealings with [the client] suggested that Mr. Lee would respond to [the client] through his mother. Therefore, we sustain the Petitioner s exceptions and conclude that violation of Rule 1.4 was proven by clear and convincing eviden ce. Lee II, 390 Md. at 526 , 890 A.2d at 278 . In the present case, Respondent s course of conduct with Mr. Sm ith indicates tha t Respon dent wo uld comm unicate w ith Mr. Sm ith through h is (contin ued...) 23 Complainant s written requests for information about the case, asserting that he could not find any letter dated 14 July 2002 (implying that it did not exist) and that Respondent replied to the 22 October 2 002 letter by meeting with the C omplainant on 9 Ja nuary 2003, nearly three months later. We observe that Respondent introduced evidence indicating that Lester Jones sent a letter to the Complainant on 17 July 2002 in which he acknowledged the Complainant s letter dated 14 July 2002, but provided no information regarding the status of the case, except to state that there were several options available that we were considering filing. We note too tha t, according to Respo ndent s 20 June 200 3 letter, he told the Complainant at the 9 January 2003 meeting that he needed more time to review the transcripts and related papers before he could inform her about the status of the case. We overrule his exception. MRPC 1.4(a) provides th at a lawyer sha ll keep a clien t reasonably informed about the status of a matter a nd prom ptly comply with reaso nable requ ests for information. According to the susta ined fin dings o f fact, supra, Respondent sen t seven letters to Mr. Smith over the course of the nearly two-year representation. Respondent did not me et with his clie nt until nearly two years after payment of the retaine r fee. Resp ondent fa iled to respon d promp tly or meaningfully to many of Mr. Smith s telephonic inquiries about the case. Respondent failed to produce written attorney w ork product as prom ised in corresponden ce to Mr. Smith. 17 (...continued) wife, th e Com plainan t. 24 Respondent also failed to respond to the Com plainant s req uests for the return of transcripts and papers on behalf of her husba nd for ov er a three-w eek period . Respon dent failed to respond meaningfully to either the 14 July 2002 letter or her 22 October 2002 letter, both of which were written requests for information from the Complainant on behalf of her husband. We conclude that, based on these sustained findings of fact, Re sponden t failed to keep Mr. Smith reasonably informed of the status of his case and failed to respond promptly or meaningfully to his client s reasonable requests for information, in violation of MRPC 1.4(a). 18 18 The hearing judge also found that Respondent failed to meet with or talk to the Complainant from 21 April 2001 until 9 January 2003 based upon the Com plainant s testimony and the client ledger. Respondent excepts to this finding, claiming that he courtesy-copied to the Complainant correspon dence sen t to Mr. Sm ith. Respon dent points to the new evidence admitted at the September 2005 hearing, which established through the use of mail log books kept by staff of the correctional facility, that Mr. Smith received letters from Respondent on 7 May 2001, 29 November 2001, 1 May 2002, 17 May 2002, 20 May 2002, 10 July 2002, and 19 July 2002. Respondent asserts that, if Mr. Smith received the letters, then it can be inferred that the Complainant received copies as well. The hearing judge, however, was not required to draw that inference, in the face of the Complainant s testim ony to the c ontrary. In addition, Respondent asserts that the Complainant neither testified that she had requested any meetings before he r October 2002 letter nor placed phon e calls to Respondent s office that were not returned. Respondent claims also that the Complainant talked with members of R espondent s office staf f often, as the Com plainant testified, Mr. Jones always followed through with things I asked him about. We need not resolv e this exception because we conclude, based upon the other sustained findings of fact regarding the state of Respondent s communications with Mr. Smith, that Respondent violated MRPC 1.4(a) regardless. 25 C. The hearing judge concluded that Respondent violated MRPC 8.1(a) and 8.4(c) based upon her findings o f fact that R esponde nt misrepres ented to Bar Counsel that the cause for his delay in pursuing the legal matter for whic h he wa s retained w as due to the unavailab ility of transcripts an d that the C omplaina nt was tard y in delivering c ase materia ls to Respon dent: The court finds that in his letter dated June 20, 2003, the Respondent knowin gly misreprese nted to the [Attorney Grievance] Comm ission that the reason fo r the delay in pursuing Smith s ca se was du e to the lack o f available transcripts for review. [(Petitioner s Exhibit 3)] He also stated that the Complainant eventually delivered a box full of transcripts, pleadings, Memorandums of Law and voluminous research materials false ly implying that these docume nts were delivered to his office much later than April 21, 2001. (Petitioner s Exhibit 3) H e knew this statement was a misrepresentation because he had acknowledged receipt of the same documents in his May 4, 2001 letter to Mr. Sm ith (Respondent s E xhibit 1). Respondent excepted to these findings of fact, claiming tha t he never re presented to the Commission that the reason for the delay was the lack of available transcripts for review and that this Court should consider his testimony that without those transcripts, he was not prepared to file what would be perceived to be as another frivolous m otion for po stconviction relief . . . . (Emphasis in original). Respondent asserts that it was not Responden t s intention to mislead anyone in his initial response to Complainan t s comp laint, but that the letter expressed his best recollection at the time he wrote the letter. 26 MRPC Rule 8.1(a) provides that a lawyer, in connection with a d isciplinary matter, shall not knowingly make a false statement of material fact. MRPC Rule 8.4(c) provides that it is professional misconduct for a lawyer to eng age i n conduct inv olving disho nesty, fraud, deceit or misrepresentation. A finding of deceit and mis representation in a disciplinary action must be found to be intentional, supported by clear of convincing evidence. Attorney Grievan ce Comm n v. Mooney, 359 Md. 56, 78-79, 753 A.2d 17, 28-29 (2000) (citing Attorney Grievance Comm n v. Glenn, 341 Md. 448, 470, 671 A.2d 463, 474 (1996) and Attorney G rievance C omm n v. Cleme nts, 319 Md. 289, 298, 572 A.2d 174, 179 (1990)). In Mooney, we concluded that the evidence did not support a finding that Respondent violated MR PC 8.1 or 8.4(c) when he told the Bar investigator that he believed the case had been assig ned to an a ssociate in his of fice. Mooney, 359 Md. at 79-81, 753 A.2d at 29-30. Respondent explained that he had made this statement to the Bar investigator because he knew that the case w as set in Princ e Georg e s Coun ty and assumed that a particula r associate who was usu ally assigned ca ses in that cou nty would handle it. Mooney, 359 Md. at 79, 753 A.2d at 29. Respondent also acknowledged that he had no specific knowledge that the particular associa te did, in f act, han dle it. Id. We therefore de termined that clear and convincing evidence did not support a finding that Respondent made intentional false representations to the Bar investigator when it was later revealed that the associate had not been a ssigned the case at issue. Id. 27 In contrast to the equivocal statement made by the respondent to the Bar investigator in Mooney, the respondent in Attorney Grievance Commission v. Kapoor, 391 Md. 505, 894 A.2d 502 (2006), made an unequivocal statement of fact to Bar Counsel, which was proven at the evid entiary he aring to be false . In Kapoor, we adopted the hearing judge s conclusion of law that a respondent violated M RPC 8 .1(a) whe re the respo ndent com municate d to the Commission during a disciplinary investigation that his client never tendered a $50 check. Kapoor, 391 Md. at 524, 530, 894 A.2d at 507, 513-14. The statement constituted a material fact and the attorney was aware of the falsity of the statement because he had accepted the tendered check an d deposited it into his person al acco unt. Kapoor, 391 Md. at 524, 894 A.2d at 507. In the present case, we overrule the exception because clear and convincing evidence supports the hearing judge s findings of fact that Respondent intentionally misled the investigator by implying, through emphatic statements of fact, that the reasons for the case s delay was due to unavailable transcripts and the Complainant s late delivery of transcripts, which if believed by Bar Counsel, may have c aused t he Co mplain t to be dis missed . In his 20 June 2003 letter to the Commission, Respondent stated: We attempted to secure transcripts of the pr oceeding s in Harford, Cecil and Kent Counties; however, due to the many years since these cases were tried in the early 1970's, the transcripts were not available from either the Courts, the prosecuting attorneys, or the defe nse attorneys an d Public Defenders. Mrs. Smith did eventually provide a box full of transcripts, pleadings, Memorandums of Law, and voluminous 28 research materials that John Henry Smith had used in his many appeals and Petitions for Post Conviction Relief. From Marc h, 2001 until September, 2002, there was much correspondence to and from my office regarding all of the above-referenced matters. In September, 2002, the paralegal assigned to this matter was admitted to a local hospital for what had been anticipated to be a routine surgical procedure. There were apparent complications as a result this [sic] medical procedure and he was put on a respirator for six weeks and then was required to remain [sic] bed rest for several months thereafter during his rec overy. Thereafter, he never returned to work for me. I met with Mrs. Smith in my office in January, 2003, to discuss the status of her husband s case. While Mrs. Smith had understood that there had not been much progress during my paralegal s medical difficulties, she was anxious that someone else be assig ned the matter. I explained that I was in the process of interviewin g paralega ls; howev er, that I would review all the materials in my possess ion but that I n eeded at lea st a month to make any significant progress given the voluminous nature of the materials and the fact that I was extremely busy due to his (paralegal s) absence from the office. She agreed with my proposal. Responden t s letter to the Commission offers several possible reasons/representations for the lack of activity in the case: unavailable transcripts; the Complainant eventually delivering a box of transcripts (the letter is unclear as to whether the box the Complainant delivered contained the unav ailable transcripts ) and case materials to Respondent that, the hearing judge found, Respon dent did no t review un til January 2003 ; the volum inous natu re of the case materials; and Respondent s paralegal s absence from September 2002 up to the 9 January 2003 meeting. As revealed by the hearing judge s previously sustained findings, the 29 true reason for inactivity in the case was Respondent s failure personally to review the case materials for two years and his failu re to mana ge his case w orkload in a manner th at would allow for the timely research, review, evaluation, and pursuit of the matters for which he was retained not any unavailable transcript or voluminous box of case materials.19 Moreover, Respondent intentionally misr epresented the time perio d when the Com plainant delivered the single box of transcripts and case materials because he acknow ledged rec eipt of the m aterials from the Complainant in April 2001 in a letter dated 4 May 2001. We therefore conclude 19 We note that Respondent s theory of the case and reasons for his inactivity shifted throughout his representation of M r. Smith, as well as during Bar Counsel s investigation. The hearing judge considered Respondent s testimony and other evidence regarding Respondent s theory of the case: Respondent testified that he reques ted the paro le hearing in April 2002 after a review of Smith s original convictions, the various post conv iction hearing s, the issues raised in those proceedings and the cou rt decisio ns in tho se proc eeding s. As a result, by April 2002, Respondent said that he had concluded that Smith s best hope for a release from commitment would be through a parole hearing after the election of a new g overnor. The hearing judge noted evidence presented at the hearing that contradicted R espondent s claim that he evaluated the file, concluded that parole was the only viable option, and discussed his conclus ion with Mr. Smith. In contradiction to Responden t s testimony, Mr. Smith testified that he never spoke with Respondent by telephone. The client log of case activity neither reflec t any calls to Mr. Smith about the parole option nor activity involving review of trans cripts at th at time. Letters from R esponde nt to Mr. S mith dated after April 2002 reflect that Respondent would proceed with a Petition for Writ of Error (letter dated 15 May 2002), there were several options available . . . including but not limited to the filing of a Motion to Correct Illegal S entenc e, (letter dated 1 7 July 200 2). Lester Jones gave the Respondent a memorandum on 11 December 2002 recommending that Respondent file a Writ of Review to Vacate Judgment. Respondent sent two letters on 15 May 2002 to attorneys reque sting assistanc e in obtainin g a transcript. 30 that Respondent violated MRPC 8.1(a) and 8.4(c) by misrepresenting his reasons for inactivity in Mr. Smith s case. V. The purpose o f sanctions is to protect the public, protect the integrity of the legal profession, and to deter other lawyers from engaging in violations of the Rules of Professional Cond uct. Attorney Grievance Comm n v. Cassidy, 362 Md. 689, 698, 766 A.2d 632, 637 (2 001). T he purp ose is no t to pun ish the e rrant atto rney. Id.; Lee II, 390 Md. at 527, 890 A.2d at 279. The severity of the sanction to be imposed in any particular case depends upon the individual f acts and circ umstance s, taking into account any aggravating or mitigating factors. Cassidy, 362 Md. at 699-7 00, 766 A.2d a t 637 (C itations o mitted). In determining the appropriate sanction, we consider also whether the attorney has been disciplined in the pa st. Attorney Grievance Comm n v. Granger, 374 Md. 438, 460, 823 A.2d 611, 624 (2003); Cassidy, 362 Md. at 700, 766 at 637-38 (citing Attorney Grievance Comm n v. Manning, 318 Md. 697, 704-05, 569 A.2d at 1250, 1254 (1990)). Moreover, an attorney s voluntary termination of the misc onduct, accompanied by an appreciation of the serious impropriety of that past conduct and remorse for it, has been viewed as evidence that the attorney will no t thereafter en gage in su ch unethic al conduc t if permitted to continue practice . Attorney Grievan ce Comm n v. Jeter, 365 Md. 279, 291, 778 A.2d 390, 296-97 (2001). Petitioner recommends an indefinite suspension. 31 In Attorney Grievance Commission v. Granger, supra, 374 Md. at 460, 823 A.2d at 624, we sanctioned an attorney with indefinite suspension, with permission to reapply no sooner than six months, where he violated MRPC 1.1, 1.2, 1.3, 1.4, 8.1, and 8.4 in connection with a bankru ptcy representa tion. Based upon the s ustained fin dings of f act in Granger, we held that Respondent misreprese nted the fa cts to Bar C ounsel an d to the hea ring judge in his statements regarding that which he told [the Complainant] she needed to do prior to her filing her [bankruptcy] petition and regarding her representation generally. Granger, 374 Md. at 458, 8 23 A.2 d at 623 . The disciplinary proceedings at issue in Granger were the first proceedings brought against that respondent and the charges stemmed from his representatio n of one client. Granger, 374 Md. at 461, 823 A.2d at 625. We also noted in Granger that, although the respondent was untruthful to Bar Counse l, the respond ent was re morsefu l, refund ed the c lient s $2 00 fee , and of fered to rectify the situation free of charge . Id. In Attorney Grievance Commission v. Cohen, 361 Md. 161, 760 A.2d 706 (2000), we sanctioned an attorney w ith indefinite suspension, with the right to reapply no earlier than six months, for violations of MRPC 1.1, 1.3, 1.4, 8.1(a), and 8.4(c) and (d). Among other miscond uct, the attorney faile d to inform several clients of the status of their respective cases and had made false representations to a client and B ar Coun sel about ha ving refun ded all unearn ed fee s in one case. Cohen, 361 Md. at 166-67, 174-75, 760 A.2d at 709, 713-14. Similar to the respondents in Granger and Cohen, Respon dent violated MRPC 1.3, 1.4, 8.1(a), and 8.4(c). The intentional dish onesty comm itted by Respo ndent in his 32 communication with B ar Cou nsel ma kes a re priman d inapp ropriate . See Attorney Grievance Comm n v. Vanderlinde, 364 Md. 376 , 418, 773 A.2d 4 63, 488 (2001) ( U nlike matters relating to competency, diligence and the like, intentional dishonest co nduct is clos ely entwined with the most important matters of basic character to such a degree as to make intentional dishonest conduc t by a lawyer almost beyond excuse . ). The hearing judge found no mitigating factors here. Nor do we. Respondent presents no evidence of remorse or appreciation of the serious impropriety of his conduct. On 12 January 2006, we issued a public reprimand for Respondent s violation of MRPC 1.3 and 1.4 when representing a client seeking post conv iction relief, thu s indicating a systematic violatio n of the R ules of Professional Cond uct. Lee II, 390 Md. at 526, 890 A.2d at 278. We therefore conclude that the fac ts of the presen t case m ake ap propria te an ind efinite s uspen sion. 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 JUDGMENT 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 NORM AN JOSEPH LEE, III 33

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