Attorney Grievance v. Ashworth

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IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG No. 5 September Term, 2003 ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. JOSEPH C. ASHWORTH Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene JJ. Opinion by Bell, C.J. Filed: June 9, 2004 The Attorney Grievance Commission of Maryland, the petitioner, by Bar Counsel, acting pursuant to Maryland Rule 16-751,1 filed a Petition For Disciplinary or Remedial Action against Joseph C. Ashworth, the respondent. The petition charged that the respondent violated Rules 1.4, Communication,2 1.5, Fees,3 1.15 , Saf ekee ping prop erty, 4 8.1, 1 Maryland Rule 16-751, as relevant, provides: (a) Commencement of disciplinary or remedial action. (1) Upon approva l of the Co mmiss ion. Upon approval or direction of the Commission, Bar Counsel shall file a Petition for Disciplinary or Remedial Action in the Court of Appeals. 2 Rule 1.4 provides: (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. (b) A lawyer shall explain a matter to the extent reasonably necess ary to permit th e client to make inform ed dec isions re gardin g the rep resenta tion. 3 Rule 1.5 p rovides, as re levant: (a) A lawyer's fee shall be rea sonable. T he factors to be consid ered in determining the reasonableness of a fee include the following: (1) the time and labor require d, the nove lty and difficulty of the questions involved, a nd the skill requisite to perform the legal serv ice p rope rly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature a nd length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) w hether th e fee is f ixed or conting ent. 4 Rule 1.15 provides: (a) A lawyer shall hold property of clients or third persons that is in a Bar Admission and Disciplinary Matters,5 and 8.4, Misco nduct, 6 of the Maryland Rules of 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, Ch apter 600 o f the Ma ryland Rules. O ther proper ty shall be identified as such and ap propriately safeguarded. Co mplete records of such account funds and of other property shall be kept by the lawyer an d shall be preserved for a period of five years after termination of the representation. (b) Upon receiving funds or other property in which a client or third person has an interest, a law yer shall promp tly notify the client or third perso n. Except as stated in this Rule or otherwise permitted by law or by agreement with the clien t, a lawyer shall pro mptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the c lient or third pe rson, shall pro mptly render a full acco unting re gard ing s uch prop erty. (c) When in the course o f represen tation a law yer is in possession of prope rty in which b oth the law yer and anoth er person c laim interests, the pro perty shall be kept separate 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 resolve d. 5 Rule 8.1 p rovides, as re levant: An applicant for admission or reinstatem ent to the ba r, or a lawyer in connection with a bar admission application or in connection with a disciplinary ma tter, shall not: * * * * (b) fail to disclose a fact necessary to correct a misapprehension known by the perso n to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by Rule 1.6. 6 Rule 8.4, as relevant, provides: It is professio nal miscon duct for a la wyer to: * * * * (b) commit a criminal act that refle cts adversely o n the lawyer s h onesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or 2 Professional Conduct, as adopted by Maryland Rule 16-812.7 We referred the case, pursuant to Rule 16-752 (a), 8 to the Honorable Sean D. Wallace, of the Circuit Court for Prince George s County, for hearing pursuant to Rule 16-757 (c). 9 Following a hearing,10 at which the respondent appeared and participated, misrepresentation; (d) en gage in condu ct that is p rejudici al to the a dminis tration o f justice . 7 The petitioner also charged that the respondent assist[ed] a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law , in viola tion of R ule 5.5 ( b), but w ithdrew it during the evid entiary he aring. 8 Rule 16-752 (a) provides: (a) Order. Upon the filing of a Petition for Disciplinary or Remedial Action, the Court of Appeals may enter an order designating a judge of any circuit court to hear the action and the clerk responsible for maintaining the record. The order of designation shall require the judge, after consultation with Bar Counsel and the attorney, to enter a scheduling order defining the extent of discovery and settin g dates for the com pleti on of discovery, filing of motions, and hearing. 9 Maryland Rule 16-757 (c) provides: (c) Findings and conclusions. The judg e shall prepa re and file o r dictate into the record a state men t of th e jud ge's findings o f fact, includ ing finding s as to any evidence regarding remedial action, and conclusions of law. If dictated into the record, the statement shall be promptly transcribed. Unless the time is extended by the Court of Appeals, the written or transcribed statement shall be filed with the clerk responsible for the record no later than 45 days after the conclusion of the hearing. The clerk shall mail a copy of the statement to each party. 10 The disciplinary hea ring in this cas e initially was sch eduled, w ith the consent of the parties, for Se ptemb er 30, 20 03. On September 4, 2003, the respondent, through counsel filed for bankruptcy, pursuant to Chapter 13 of the Bankruptcy Code, 11 U.S.C. § 1301 et seq., and subsequently, on September 22, 2003, filed a Suggestion of Stay, pursuant to § 362 (a) of that Code. The respondent also filed, in proper person, a motion for continuance of up to thirty days to obtain counsel in the disciplin ary proce edings . Opposing any delay, the 3 the hearing court found facts by the clear and convincing standard and drew conclusions of petitioner filed an Emergency Motion To Direct The Circuit Court For Princ e George s County To P roce ed Pursu ant T o M arylan d Ru le 16 -757 In That A ttorn ey Disciplinary Proceedings Are Exem pt Pursuant To 11 U.S.C. § 362 (b) (4 ). After the respondent answered the motion, this Court postponed the pending disciplinary hearing and scheduled a hearing on the suggested stay. Following that hearing, we ordered the disciplinary proceeding to proceed and the hearing to be rescheduled. We reject the resp ondent s a rgumen t that the autom atic stay provided for by 11 U.S.C. 362 (a) applies to these proceedings. To be sure, pursuant to § 362 (a) (1), as a general rule, the filing of a Chapter 13 bankruptcy petition operates as an automatic stay of administrative proceedings against the debtor. On the other hand, 11 U.S.C. § 362 (b) sets forth exceptions to that genera l rule of automatic stay. Section 362 (b) (4), relevant to this case, for example, provides: (b) The filin g of a pet ition ... does no t ope rate a s a sta y * * * * (4) under paragraph (1) ... of subsection (a) of this section, of the commencement or continuation of an action or proceeding by a governmental unit ... to enforce such governmental unit s ... police and regulatory power, including the enforcement of a judgment other than a money judgment, obtained in an action or proceeding by the governmental unit to enforce such governmental un it s ... police or regulatory power[.] This provision has been interp reted uniformly to exemp t disciplinary proceedings from the automatic stay of § 3 62 (a). See In re Wade, 948 F.2d 1122, 1124 (9th Cir. 1991); In re Friedman & Shapiro, P.C., 185 B.R. 143, 145 (S.D.N.Y . 1995); In re McAtee, 162 B. R. 574, 577-78 (N .D. Fla. 199 3); In re Williams, 158 B.R. 488, 491 (Bankr. D. Idaho 19 93); In re Haberman, 137 B.R . 292, 294-9 4 (Bank r. E.D. W is.1992); In re Fitch, 123 B.R. 61, 63 (Bankr. D. Idaho 19 91); In re Hanson, 71 B.R. 1 93, 194 (B ankr .E.D . Wis. 1987 ); Cooper v. State Bar, 741 P.2d 206, 211 (1987); Risker v. Commission For Lawyer Discipline, 94 S.W.3d 625, 63 2 (Tex. App., 200 2). The respondent attempts to restate the question, urging that it is whether a law license represents property of the bankruptcy estate. He argues that if it is, then no action at all may proceed to deprive its holder and the estate of its value. The respondent also argues that this disciplinary proceeding is the alter ego of a civil action filed in St. Mary s C ounty Circuit Court by the complainant in this case against the respondent. Suffice it to say that we have addressed and answered the pertinent question. A civil action against an attorney by that attorney s client is n ot, and c an not, b e the alte r ego of disciplin ary proce edings . 4 law, as follows. Roger Seltz, the complainant, on July 18, 2001, consulted the responden t in connection with a contract disp ute he had with his former employer, ManTech International ( ManTe ch ). The wr itten retainer ag reement h e entered in to with the respondent provided that the respondent would provide the required legal services for an agreed initial retainer of $ 2000.00, and that those services would commence when A ttorneys receive th e complete payment of $ 2000.00 which will be billed at $ 150.00 per hour. The retainer agreement also provided: If this matter requires litigation, we will obtain anoth er retainer ag reement. ... If and when it becomes apparent that the above amount for fees and expenses will be excee ded und er this agreem ent, an additional sum will be set by attorne ys. The complainan t paid the respondent the retainer and an initial consultation fee of $150.00. Rather than placing the retainer in his escrow account, where the respondent concede s it should ha ve gone, th e respond ent placed it in his operating account. After reviewing the documentation he had received from the complainant and receiving from the complainant approval of a draft that he had been asked to review,11 the respondent sent a demand letter to ManTech on or ab out Au gust 17 , 2001. Accepting the invitation contained in the ManTech response, the respondent and the co mplainan t met with 11 After approving the final demand letter, the com plainant ask ed the respo ndent to delay sending the letter until he had received his executive supplemental paycheck, a request with which the respondent complied. 5 ManTech representatives on October 23, 2001 to discuss the claims. The meeting lasted three to four hours and, although, according to the complainant, the respon dent did a very good job of advocating his position, no settlement was reached. The complainant s demand of $ 150,000.00 was met with a counter-offer of only $ 40,000.00. Following the meeting , the comp lainant adv ised the resp ondent tha t I would like to give ManTech my final demand for $ 150,000, or we will sue. If we sue, we should depose the minimum following people ... lets call their bluff. Thereafter, in early December, 2001, the respondent prepared a draft comp laint that h e asked the com plainan t to revie w. When they met a few days later to discuss the draft, they also consid ered in mo re detail wh at would be involved in the litigation process and a new fee arrangement. As to the latter, the respondent indicated that he wanted a thirty three percent share should the case go to litigation, which, at that time, the complainant thought was fair. At the conclusion of the meeting, the complainant expected the complaint to be filed and to be presented with a new contingen cy fee agreem ent. The day after that meeting, presumably because the complainant had flashed the complain t to a ManT ech official he ran into, ManTech s attorney telephoned the respondent, leaving a message, followed up by a fax, indicating that ManTech would like to revise its offer to resolve this dispute with your client, and asking that the respondent return the call as soon as possible. Although the respondent received the fax t he next d ay, he neither advised the complainant of its receipt nor provided him with a copy. The 6 respondent did return ManTech s call. There were no discussions of settlement proposals or counter-proposals during that call; it involved just ManTech s desire to have further settlement conversations after the attorney talked to his operational people. Sub sequ ently, the respondent prepared a contingency fee agreement for the complainant to execute. H is office ap prised the co mplainan t of the intenti on to file th e complaint he had previously reviewed and requested that the complainant come into the office and review and sign the fee agreeme nt. The fee agreeme nt, the comp lainant wa s told and the complainant believed, called for a contingency fee of 25 percent before suit was filed or 33 percent after it was filed. In fact, the fee agreement contained a typographical error, the inclusion of the word, not in the pro vision relating to the percentage rec overy before filing suit. Read literally, that provision provides that the amount of the fee received by Attorneys will be twenty-five percent (25%) of any sums received if the matter is not resolved prior to litigation. Deletion of the word, not results in the agreement reflecting both parties understanding. The complainan t read and signed the fee agreement. Although he received a copy of the agreement he signed, he never received a fully executed one, as the respondent promised he would provide. A subsequent discussion between the responde nt and M anTech s counsel re sulted in the scheduling of another settle men t mee ting and, although neither had settle men t auth ority, they explored the general ranges at which the ir clients migh t be willing to settle. After the 7 respondent advised the complain ant of the sc heduled s ettlement m eeting, the co mplainant had second though ts abou t paying a 25 perc ent con tingenc y fee. He indicated that if ManTech was willing to negotiate, the respondent should be entitled to 25 percent only if the settlement amount was $ 180,000.00, an amount more than he was e ntitled to receive, rather than the $ 150,000.00 demanded. The respondent did not agree. The respondent and the complainant met to discuss the contingency fee prior to the settleme nt mee ting. At that time, the complainant had rethought his agreement to pay the respondent a 25 percent continge ncy fee. During their preliminary meeting, the complainant expressed his intention to unequivocally revok[e] the contingency fee agreement and to pay the responde nt a flat fee c onsistent w ith a sliding scale he had developed prior to the meeting. The respondent did not agree, standing instead on the written agreement that the complainant had executed. He also advised the complainant of his right to discharge him. Noting that he wanted the respondent to represent him at the settlement meeting, the complainant and the respondent shook hands and the respondent continued to represent the complainant at the settlement meeting both parties subsequently attended. After con sidering nu merous p roposals and counter-proposals, the parties settled for $104,000.00. The settlement agreement provided that each party would pay its own counsel fees and e xpenses a nd that the se ttlement amount would be paid by check made jointly payable to [the complain ant] and [the respondent]. ManTech sent the settlement check, payable as ag reed, to the res ponden t. He deposited the check in h is escrow a ccount, 8 without obtaining the comp lainant s signatu re. The bank negotiated the check, nevertheless. When the complainant received a check from the respondent in the amount of $78,0000.00, along with a letter indicating that he had deducted his 25 percent contingency fee, which constituted the only billing state ment, breakdown of hours, or written justification or explanation of the fee charged that the respondent provided the complainant, the complainant contacted the responde nt to protest. They agreed to mee t to discuss the matter. Although the respondent advised the complainan t that he should have counsel, the complainant attended the meeting unrepresented. No agreement was reached; the respondent rejected the complainant s position that he could, and did, revoke, the contingency agreement. Maintaining that the agreement was binding, he advised the complain ant, I have the check in escrow and I ca n wait. The complainant later negotiated the settlement check, but only after putting the respondent on notice that he was not thereby accepting the v alidi ty of the contingency fee agreement. Subsequently, the respondent withdrew from the escrow account $10,000.00 of the disputed $26,000.00 fee. He made subsequent withdrawals against that amount after the complainant filed this com plaint with the petitioner and after the respond ent had, in response to the p etitioner s inquiry about the complain t, stated: this case is nothing more than a clear and bitter dispute over fe es ... . I am willing, howev er, to have this fee dispute resolved through binding arbitration administered by the Maryland Bar Association. The respondent spoke with the petitioner s investigator concerning his handling of the 9 fees charged the complainant. In response to the investigator s inquiry, he said that he had deposited the initial retainer in his escrow account and that he kept the disputed $26,000.00 fee in that account. The respondent promised to, but did no t, provide rec ords to substantiate those claims. Based on these fin dings, the he aring court c oncluded that the respondent violated Rules 1.4, 1.15, 8.1 and 8 .4 (c) and (d). The Rule 1.4 violation was based solely on the respondent s failure to advise the complainant of the status of his in itial $2,000.00 retainer at any tim e, and mo st especially at the time w hen the fee w as conv erted to a conting ency arra ngem ent. Noting that the new terms were clea rly understood and agree d to by the client when he signed the second retainer agreem ent, the hearing court expre ssly did not find that the respon dent s violation pertained to the change of fee agreement. Nor was the hearing court convinced that the respondent failed to communicate to the complainant developm ents in the negotiation with ManTech. By depositing th e initial retainer in his opera ting accou nt, rather than th e escrow account, and, although c orrectly deposited in the escrow account, by making disbursements from the disputed contingency fee, knowing that it was disputed, the hearing court determined that the respondent violated Rule 1.15 (a) and (c). His failure to notify the complainant when the settlement check was received constituted, it concluded, a violation of section (b) of that Rule. The hearing court rejected the petitioner s argument that the responde nt s failure to provide an accou nting also co nstituted a vio lation of Rule 1.15 (b), pointing out that no 10 request was made for such an accounting as is required by the Rule. The hearing court found a violation of Rule 8.1 because the respondent did not provide the investiga tor with the in formation he reques ted and w hich the respondent promised to deliver, thus, failing to respond to [his] verbal and written requests for information. As indica ted, the respondent told the com plainant and the petitioner s investigator that he was holding the disputed fee in escrow, when that was not the case. The hearing court concluded that, since these statements were factually incorrect and the Respondent knew or should have known that they were incorrect, by making them, the respondent violated Rule 8.4 (c). He violated Rule 8.4 (d) by not holding the disputed funds in escro w and , thus m aking th em un availab le upon any resolu tion of th at dispu te. Nevertheless, the hearing court emphasized that it did not find that the respondent violated the provision in any other regard. Both the petitioner and the respond ent have taken exc eptions. The petitioner s exception challenges the hearing court s failure to find a violation of Rule 1.5 (a). A fee of $26,000.00 was unreasonable, it argues, because [t]he only services provided after the contingency fee agreement was signed on D ecember 13, 200 1, were for Resp ondent s conferences with the Complainant and the Respondent s attendance at one meeting with the former employer s representatives on Decem ber 19, 2001, wh ich, according to Resp ondent s records, lasted appro ximately 3.7 hours. The petitioner concludes that, although perhaps not unreasonable when signed, it became unreasonable when the matter settled with in da ys 11 of the n ew ag reeme nt and w hen the conting ency, litiga tion, did not occ ur. In concluding that Rule 1.5 (a) had not been violated, the hearing court reasoned: Bar counsel s argument ignores the reality that attorneys w ith excellent sk ills and reputations often can obtain satisfactory settlements with the e xpenditure of less effort than those lawyers without such reputation and skill. The cou rt rejects those arguments and concludes that Respondent did not charge an unreasonable fee. Rule 1.5 provides that in determining the reasonableness of the fee, a number of factors are to be considered beyond simply the time and labor required. Among those factors relevant in this case are: the skill req uisite to perform the legal services properly; the fee customarily charged in the locality for similar legal services; the amount involved and the results obtained; the experience, reputation, and ability of the lawyer performing the services; and whether the fee is fixed or contingent. In this case, Respondent had over twenty years of experience, specializing mainly in labor and employment law. The client retained him because of that expertise. Respondent ably represented his client in preparing both a lengthy, detailed demand letter and a draft complain t, both of which brought ManTech to the settlement table. At two settlement negotiations sessions, respondent strongly advocated for his client, and ultimately, was a ble to obtain a satisfactory settlem ent for his clie nt. A twenty-five percent contingency fee for cases of this type is both customary and reasonable. Thus the court concludes that Respo ndent did n ot violate this provisio n by char ging an unreas onable fee. We agree. The petitioner s exception is overruled. The respondent s exceptions are to both the hearing court s findings of fact and conclusions of law. W ith respect to the former, while not excepting to the finding that the retainer was improperly deposited in the respondent s operating account, but noting that the hearing court made no specific finding regarding why, he submits that the testimony indicates that the improper deposit was made in error, not intentionally. Conceding that the information requested b y the petitioner s in vestigator w as not timely provided, the 12 respondent maintains that it was provided during the course of the disciplinary proceedings. He argues, therefore, that the finding that the information was never provided is not suppo rted by the eviden ce. The respondent s exception to the hearing court s conclusion of law relates to the conclusion, with respect to Rule 1.15 (b), that the complainant was not notified of the receipt of the settlement check. His complaint is that because there was testimony that the respondent told his office manager to contact the complainant and have him sign the check, the office manager testified that she called him, and there was a conversation with the complainant within seven days of the check s receipt, the evidence fails to sustain by clear and co nvincin g evide nce a v iolation of Ru le 1.15 ( b). There is ample evidence to support the findings of fact made by the hearing court and, just as im portant, those fact ual f indings j ustif y the conclusions drawn from th em. Exceptions will be ove rruled w hen the finding s are no t clearly erro neous . Attorney Grievance Comm n v. McCoy, 369 Md. 226, 235, 798 A.2d 1132, 1137 (2002). See Attorney Grie vance. C omm 'n v. Garland, 345 Md. 383, 392, 692 A.2d 465, 469 (1997) (citing Attorney Grievance. Comm'n v. Goldsborough, 330 Md. 342, 347, 624 A.2d 503, 505 (1993 )). Turning to the question of the appropriate sanction,12 both the petitioner and the 12 The respondent moved, by motion filed on May 5, 2004, to remand these proceedings to the Circuit Court for consideration of new evidence in mitigatio n of the allegations raised in this matter, specifically new evidence that the Respondent suffered from 13 respondent offer a recom mend ation. The petitioner believes that disbarment is the required sanction. In support of its recommendation, it submits: The Respondent engaged in dishonest and deceptive conduct w ith regard to the disputed fee, failed to hold those funds in trust as required by the Maryland Rules of Professional Conduct and was untruthful when questioned about the funds. Respondent failed to respond to lawful demands for information from Bar Counsel s off ice. This [C ]ourt has he ld on num erous occ asions that intentional dishonest conduct will result in disbarment absent compelling, extenuating circumstances. The Respondent presented no evidence which would constitu te mitiga tion. Attorney Grievance Commission v. Vanderlinde, 364 M d. 376, 4 18, 773 A. 2d 4 63, 488 (2001 ). The respondent, on the other hand, argues for an indefinite suspension with the right to reapply after a short period, in 60 days. He supports h is argume nt by pointing o ut that: This case is not one of blatant misappropriation or one where there is a pattern o f dece itful con duct. The conduct here, except arguably for the two misstatements, does not involve violations arising from deliberation and calculation, where the result achieved was intended, which makes [the respon dent s] a ctions le ss culpa ble for p urpose s of san ctions. The respondent also submits that his improper deposit of the retainer was an error, not intentional, which is relevant on the issue of the sanction for misappropriation. Moreover, although condoning the violation, the respondent con tends that there was no injury caused by his failure to comply with Rule 1.15 (c). This is so, he says, because, in essence, by determining that the contingency fee charge was not unreasonable and that the agreement was not unreasonable, the hearing court found that the complainant owed the fee. Conceding the existence of aggravating circumstances, he has twice been reprimanded, he mental illness at the time that the facts in this case occurred. The motion is denied. 14 points out that [n ]either involv ed dishon esty or the integrity of escrow acco unts. In addition, the violations here concern one client and one case, a factor that should be considered mitigating, and do not am ount to or ap proach the conduct in the cases tha t this Court has recently determ ined to be su ch as to w arrant disbar ment. 13 The purpose o f attorney discip linary proceed ings is well se ttled: to protect the public and not to punish the errin g attorn ey. See Bar Ass 'n of Baltim ore City v. M arshall, 269 Md. 510, 519, 307 A.2d 677, 682 (1973), in which, thirty years ago, we stated that the purpose of disciplinary action s ... is not to punish the offending attorney, as that function is performed in other types of legal proceedings, but it is to protect the public from one who has demo nstrated his unw orthine ss to con tinue the practice of law . More recently, we stated the rule in Attorney Grievance Comm n v. Davis, 375 Md. 131, 166-67, 825 A. 2d 430, 451 (2003). There, we opined: Our consideration of the appropriate disciplinary measure to be taken in any given case involving violation of the Rules of Profe ssional Co nduct is guided by our interest in protecting the public and the public s confidence in the legal profession. Attorney Grievance Co mm n v . Powell, 369 Md. 462, 474, 800 A.2d 782, 789 (2002). The purpose of such proceedings is not to punish the lawyer, but should deter other lawyers from engaging in similar conduct. 13 The respondent specifically references Attorney Grievance Comm n v. Braskey, 378 Md. 425, 461, 836 A.2 d 605, 62 7 (2003); Attorney Grievan ce Com m n v. Ca fferty, 376 Md. 700, 831 A.2 d 1042 (2 003); Attorney Grievance Comm n v. Gallagher, 371 Md. 673, 810 A.2d 996 (200 2); Attorney Grievance Comm n v. Lane, 367 Md. 633, 648, 790 A.2d 621, 629 (2002); Attorney Grievance Comm n v. McLa ughlin, 372 Md. 467, 499-501, 813 A.2d 1145, 1164-65 (2002); Attorney Grievance Comm n v. Vanderlinde, 364 Md. 376, 773 A.2d 463 (2001); Attorney Grievance Comm n v. Wallace, 368 Md. 277, 293, 793 A.2d 535, 545 (2002). 15 [Attorney Grieva nce C omm n v.] Mooney, 359 M d. [56,] 96, 753 A.2d [ 17,] 38 [2000]. T he public is p rotected when w e impose sanctions that are comme nsurate with the nature and gravity of the violations and the intent with which they wer e com mitted. Attorney Grievance Comm n v. Awuah, 346 Md. 420, 43 5, 697 A .2d 446 , 454 (1 997). It is equally well settled that the decision whether to impose a sanction in a particular case and, if so, what the sanction should be, does, and must, depend on the facts and circumstances of that c ase. That dec ision is inform ed and gu ided, how ever, by certain factors: the nature and grav ity of the violations and the intent with w hich they were committed. Awuah, 346 Md. at 435, 69 7 A.2d at 454. See Attorney Grievance Comm n v. Pennington, 355 Md. 61, 77-78, 733 A.2d 1 029, 103 7-38 (199 9); Attorney Grievance Comm n v. Milliken, 348 Md. 486, 519, 704 A.2d 12 25, 1241 (1998); Attorney Grievance Comm n v. Montgom ery, 318 Md. 154, 165, 567 A.2d 112, 117 (1989); the attor ney's prior grievance history, including whether there have been prior disciplinary proceedings, the nature of the misconduct involved in those proceedings and the nature of any sanctions imposed, as well as any fa cts in mi tigation , Attorney Grievance C omm n v. Franz, 355 Md. 752, 762, 736 A.2d 33 9, 344 (19 99); Maryland State Bar Ass'n v. Phoebus, 276 Md. 353, 362, 347 A.2 d 556, 56 1 (1975); w hether the a ttorney is remors eful for the misconduc t, Attorney Grievance Comm n v. Wyatt, 323 Md. 36, 38 , 591 A.2d 467 , 468 (1991), and the likelihood of the c onduc t being r epeate d. Attorn ey Grievance Comm n v. Freedman, 285 Md. 298, 300, 402 A.2d 75, 76 (1979). With respect to the latter factor, the likelihood of recidivism, we have held that the voluntary termination of the charged misconduct, when 16 accompanied by an appreciation of the impropriety of having engaged in it and remorse for having done so, may be evidence that the attorne y will not again engage in such misc onduct. Freedman, 285 Md. at 300, 402 A.2d a t 76. See Attorney Grievance Comm n v. McC lain, 373 Md. 196, 211-12, 817 A.2d 218, 227-28 (2003 ); Franz, 355 Md. at 762, 736 A.2d at 344. See also Attorney Grievance C omm n v. Harris-Sm ith, 356 Md. 72, 90 - 91, 737 A.2d 567, 577 (1999) (acknow ledging the principal ob jective of san ction in that case, deterrence of other non -admitted atto rneys from u ndertaking a federal p ractice from an office in Maryland, was achieved w hen the firm dissolved after bar counsel's investigation comm enced ). To be sure, the conduct in which the respondent was found to have engaged and the rule violations it was found to constitute are quite serious and can n ot be condoned , however, neither the conduct nor the rule violations rises to the level of the conduct or the violations warranting disbarment. The Rule 8.4 violations were found because of the responden t s misrepresentation of the status of disputed funds, because he advised the complainant and Bar Counsel that they were in escrow when he knew they were no t and beca use he did not so hold th em as h e shou ld have done. The hearing court rejected, however, the argument that the respondent engaged in misconduct - misleading the complainant regarding the status of settlement negotiations and obtaining a new settlement agreement - to capitalize on the situation. Finding that argument to be unsupported by the evidence, it found: Respondent did advise the client of the negotiation developments and that the second fee agreement was entered into by the parties fo r their mutua l benefit 17 in light of the circumstances. Respondent s efforts un der the initial ho urly agreement had not achieved settlement an d the client w as unwilling to expend any more m oney in a dvanc ed fee s. There was no assurance that settlement would be achieved in the ne ar future, and there was a good possibility that substan tial time a nd eff ort wo uld be r equired in pursu ing litiga tion. Furthermore, while the hearing court found a violation of Rule 1.15 (b) when the respondent did not advise the complainant of the receipt of the settlement check, it rejected the petitioner s contention that the failure of notice and the failure to obtain his endorsement were motivated by fraud or dishonesty. And the hearing court, as the respondent argues, found that the respo ndent w as entitled to the disputed fe e, which it determined not to be unreason able and to ha ve been a ppro priately charged in a contingency fee agreement that was n egotiate d and v oluntar ily signed b y the com plainan t. Under the circumstances, the appropriate sanction is an indefinite suspension from the practice of law. IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING COSTS OF ALL TRANSCRIPTS, PURSUANT TO MARYLAND RUL E 16-7 61, FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR 18 OF THE ATTORNEY C O M M I S S IO N AGAI NST ASHWORTH. 19 G R IE V A N C E JOSEPH C.

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