Attorney Grievance v. Mininsohn

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IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG No. 70 September Term, 2002 __________________________________ ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. GARY S. MININSOHN __________________________________ Bell, C.J. Wilner Cathell Harrell Battaglia Eldridg e, John C., (retired, specially assigned) Rodo wsky, L awren ce F., (retired, specially assigned), JJ. Opinion by Battaglia, J. Bell, C.J., con curs and d issents Filed: March 17, 2004 The Attorney Grieva nce Comm ission of Maryland ( Pe titioner or Bar Coun sel ), acting through Bar Counsel and pursuant to Maryland Rule 16-7 51(a), 1 filed a petition for disciplinary or remedia l action again st responde nt, Gary S. Mininsohn, Esquire, on October 23, 2002. The Petition alleged that Mininsoh n, who was a dmitted to the Bar of this C ourt on June 25, 1975, violated several Maryland Rules of Professional Conduct , specifically 1.3 (Diligence), 2 1.4 (Comm unication), 3 1.15 (Safekeepin g property),4 1 Maryland Rule 16-751(a) provides: Commencement of disciplinary or remedial action. (1) Upon a pproval o f the [Atto rney Grievan ce] Com mission, B ar Coun sel shall file a Petitio n for D isciplina ry or Rem edial A ction in t he Co urt of A ppeals . 2 Under Rule 1.3, [ a] lawyer sha ll act with reasonab le diligence a nd prom ptness in represe nting a c lient. 3 Rule 1.4, in relevant part, states: (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly com ply with reaso nable reques ts for inf ormatio n. 4 Rule 1.15, in relevant part, provides: (a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the la wyer 's own property. Funds shall be kept in a separate account maintained pursuant to Title 16, Chapter 600 of the Maryland Rules. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and of other property shall be kept by the lawyer and 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 lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer sh all promptly 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 client or third person, shall promptly render a ful l accounting rega rding suc h pro perty. 1.5 (Fees), 5 3.4 (Fairness to opposing party and counsel), 6 and 8.4 (Miscon duct). 7 Violations of Maryland Rule 16-609 (Prohibited transactions), 8 Maryland Code, Section 10- 5 Rule 1.5, in relevant part, provides: (c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee agreement is prohibited by paragraph (d) or other law. The terms of a contingent fee agreement shall be communicated to the client in writing. The communication shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingen t fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter, and, if there is a recovery, showing the remittance to the client and the method of its determination. 6 Rule 3.4, in re levant p art, prov ides: A lawyer sh all not: . . . (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no v alid obli gation e xists . . . . 7 Under Rule 8.4: It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Condu ct, knowingly assist or induce another to do so, or do so through the acts of an other; (b) commit a criminal act th at reflects adversely on the la wyer 's honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct in volving d ishonesty, fraud , deceit or misrepresentation; [or] (d) engage in conduc t that is prejudicial to the administration of justice . . . . 8 Maryland Rule 16-609 provides: An attorney or law firm m ay not borrow or pledge any funds (contin ued...) 2 306 of the Business Occupations and Professions Article (198 9, 2000 R epl. Vol.)("A lawyer may not use trust money for any purpose other than the purpose for which the trust money is entrusted to the lawyer") and Maryland Code (1988, 1997 Repl V ol., 2003 Cum. Su pp.), Sections 10-906 and 13-1007 of the T ax-General A rticle, requiring employers to withhold, report, and remit to the Comptroller employee income taxes, also are alleged.9 In accordance 8 (...continued) required by the se Rules to be deposite d in a n atto rney trust account, obtain any remuneration from the financial institution for depositing any funds in the account, or use any funds for any unauthorized purpose. An instrument drawn on an attorney trust account may not be d rawn payable to cash o r to bearer. 9 Section 10-906 of the Tax-General Article, in relevant part, provides: (a) Required. Excep t as provide d in § 10-907 of this subtitle, each em ployer or payor sh all: (1) withhold the income tax required to be withheld under § 10908 of this subtitle; and (2) pay to the Comptroller the income tax withheld for a period with the withholding return that covers the period. (b) Tax withheld deemed held in trust. Any income tax withheld is deemed to be held in trust for the State by the employer or payor who withholds the tax. (c) Separate account required. An employer or payor who withholds income tax shall keep a separate ledger account for with hold ings that i ndic ates clea rly: (1) the amount of income tax withheld; and (2) that the income ta x withheld is the prope rty of the State. Section 13-1007 of the Tax-General Article provides criminal penaltie s, inter alia, for willful failure to file required income tax withholding returns (subsection (a)), willful failure to withhold the tax as required (su bsection (b )), and willfu l failure to rem it withheld tax to the Comptroller (subse ction (c)). 3 with Maryland Rules 1 6-752(a) and 16-7 57(c), 10 we referr ed the petitio n to Judge John H. Tisdale of the Circuit Court for Frederick County for an evidentiary hearing and to make finding s of fac t and co nclusio ns of la w. On March 8 and 9, 2003 and May 28, 20 03, Judge Tisdale he ld hearings and on Ju ly 11, 2003, issued a Report and Recommendations in which he found, by clear and convincing evidence, that Mininsohn violated Rules 1.3, 1.5(c), 1.15(a) and (b), 3.4(c), 8.4(a) and (d), Maryland Rule 16-109, Business Occupations and Professions Article, Section 10-306, TaxGeneral Article, Section 10-906(a), (b), and (c), and Tax-General Article, Section 13-1007(b) and (c). Bar Counsel filed exceptions to the hearing judge's failure to find violations of Rules 8.4(b) and (c). Mininsohn filed several exception s, stating that he did not viola te Rule 3.4(c) when he failed to appear in court bec ause of an ice storm an d notified th e court clerk to that effect, that he did not violate Rule 1.3 because he mistakenly believed that opposing counsel intended to prepare an Order at the direction of the court instead of him, that he did not 10 Maryland Rule 16-752(a) states: 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 c ourt 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 setting d ates for the co mpletion of discovery, filing of motions, and hearing. Maryland Rule 16-757(c) states in pertinent part: The judge shall prepare and file or dictate into the record a statement of the judge s findings of fact, including findings as to any eviden ce rega rding re media l action, a nd con clusion s of law . . . . 4 violate Rule 1.15(b) because he had resolved all outstanding payments he had been required to make on a client s behalf, and that he did not willfully fail to w ithhold and pay income tax because the attorney he had hired handled his tax obligations incorrectly. We sustain Bar Counsel s exception s and add itionally find violations of Rules 8.4(b) and 8.4(c). We overru le Min insohn s exce ptions. T he app ropriate sanctio n is disb armen t. Judge Tisdale s Findings of Fact and Conclusions of Law follow: Findings of Fact This action arises out of four separate complaints made to the Commission regarding the con duct of the Re spond ent. The underlying facts were not highly contested. Based on the testimony, documentary and other evidence, in accordan ce with the burdens o f proof se t forth in Rule 16 -757(b), this court makes the following findings o f fact: Gary S. Mininsohn was admitted to the Bar of the Court of Appeals of Maryland on June 25, 1975. Since approximately 1978, Respondent has continuously maintained a law off ice in Roc kville, Ma ryland, primarily practicing as a sole practitioner. B.C. Docket No. 2001-145-16-8 Reuschling Complaint In November 1998, Respondent engaged the services of Glen F. Reuschling ("Reuschling"), an accident reconstruction expert. Respondent hired Reuschling to assis t and to tes tify in connect ion w ith R espo ndent's representation of a client, Norma Chicas ("Chicas"), in a vehicular negligence case in Montgomery County. After the trial at which he testified, Reuschling presented Respon dent with a bill for h is ser vice s for $2,5 57.8 0. Re spon dent's client m ade an initial paym ent to R euschl ing. Reuschling testified that he made several demands for payment from Respon dent, who informed him that he would have to file suit to collect because he did not intend to pay. Respondent testified that Reuschlin g's services were unsatisfactory and contributed to a ruling against his clie nt. 5 Respondent instructed Reuschling to proceed against his client to collect and assum ed that R euschl ing reac hed an agreem ent with the clien t. On April 6, 1999, Reuschling, represented by Mervyn A. Sch wedt, Esquire ("Schwedt"), filed suit against Respondent in the District Court of Maryland for Montgomery County, seeking damages in the outstanding amount billed by Reuschling for his servic es in the Ch icas case. A fter service o f the civil complaint filed by Reuschling, Respondent did not file a Notice of Intention to Defend or otherwise respond to the complaint. Respondent also did not appea r for trial o n July 7, 19 99. The District Court entered a default judgment against Respondent for $2,557.80, plus attorney's fees and costs. Respondent did not file any motion for post-judgment relief, nor did he note an appeal from the judgment entered. Schwedt testified that in August 1999, he sent Respondent Interrogator ies in Aid of Enforcement of Judgment by first class mail and fax. Schwedt's testimony is confirme d by his filing of a Notice of Serv ice of Discovery Materials on August 27, 1999. Respondent failed to respond to the interrog atories. On June 5, 20 00, Schw edt initiated further Post-judgment proceedings by filing separate requests for a Writ of Garnishment of Property Other Than Wages and for a Writ of Garnishment on Wages, both directed to "Mininsohn & Associates," the trade name used by Respondent in his law p ractice and to Respondent himself. On the same date, Schwedt again requested an Order Directing Defendant to A ppear for Examination in Aid of Enforcement of Judgm ent (Or al). The District Court issued the two writs for service on Respondent's law practice and a subpoena requiring Respondent to appear in person on August 23, 2000 to be examined under oath concerning any assets, property or credits and ordering Respondent to bring with him records set forth in the request filed by plaintiff s co unsel. On June 29, 2000, a private proc ess server en gaged by S chwed t personally served Respondent with the writs and the order directing Respondent to appear for oral examination. While Respondent stipulated tha t the service o f the writs and the order was proper, he claims not to have distinct recollection of service. Respondent does acknowledge that he was in court on another matter around 6 this time and may have been handed a piece of paper that constituted the writ and order. Respondent believes that he misplaced the writ and the order in a file. Respondent failed to answer either writ or to file a motion asserting a defense or an objection. Respondent failed to appear in court on August 23, 2000. Respondent did not ask for a continuance from the court nor did he info rm the court that he would not be available on that date. On or after August 23, 2000, Respondent received a phone ca ll from Sch wedt ask ing him why he was not in cour t. Upon his failure to appear, the District Court issued a Show Cause Order for Contempt directing Respondent to appear personally in court on November 15, 2000. Respondent was personally served with the Show Cause Order on October 6, 2000. Respondent appeared in court on November 15, 2000, but did not bring with him any records responsive to the requests made in conjunction with the previously issued order that he appear for oral examination. The matter was continued until December 20, 2000. Respondent acknowledged the continuan ce by signing a docume nt provided by the court. On December 20, 2000 , Respon dent again failed to appear in court, although Reuschling and Schwe dt were p resent. Resp ondent alle ges he w as unable to appear in court due to inclement weather and that he did call the co urt to advise that he w ould no t be pres ent. As a result of his failure to appear a body attachment was re queste d. Although Respondent testified in this proceeding that he called and left a message with the clerk's office, there is no mention of a call to the cou rt in the written motion to rescind body attachment that Respo ndent f iled on J anuary 5 , 2001. On January 11, 2001, a directive was issued to set the case as a Show Cause for Contempt hearing before Judge Cornelius J. Vaughey, Administrative Judge for District 6 of the District Court of M aryland. On January 24, 2001, the District Court held a hearing on the pending contempt and body attachmen t. On that date, Respondent appeared in court, as did Reuschling and Schwe dt, now m aking their f ourth court appearance. Judge Vaughey ordered Respondent to produce the requested records on or before March 12, 2001, and identified the documents to be produced on a list numbered one throu gh 22 in his own handwriting. Judge V aughey also w rote failure to produce said docume nts may cause the defendant [Mininsohn] to be held in contempt of this court. Judge Vaughey re-set the case for a status hearing on March 21, 2001, 7 if the documents are not satis factorily p roduce d. A co py of Judg e Va ughey's handwritten list and comments was provided to Respondent on January 24, 2001. Respondent did n ot provid e Schwe dt with an y documen ts from the list prepared by Judge V aughey, nor d id he com municate any explanation for his failure to respond. On March 21, 2001, at the status hearing before Judge Vau ghey, Respondent informed the court that he (Respondent) had filed a petition for bankruptcy earlier that day. Due to the bankruptcy filing, an automatic stay of the proc eedings in th e District Co urt of Maryland was entered . The bankrup tcy court denied Respon dent a disch arge of his debt to Reuschling, i.e., the money judg ment ente red July 7, 1999 by the District Court of Maryland. The post-judgment proceedings in the District Court of Marylan d therea fter we re reop ened u pon R euschl ing's req uest. When this disciplinary matter was initially before this court for a hearing on April 8 and 9, 2003, the judgment entered against Respondent remained unsatisfied. When the parties returned to conclude the hearing on May 28, 2003, Respondent's counsel introduced an order of satisfaction indicating Respondent had satisfied the judgment debt to Reuschling in the interim. Respondent admitted that a s an office r of the cou rt, he has an o bligation to comply with court orders, whether representing a client or acting on his own behalf . B.C. Docket No. 2001-215-16-8 Leu-Gearhart Complaint In 1992 Respondent began representing Susan Leu (now Gearhar t) in a family law matter. T he case , John L eu v. Su san Le u, Case No. 92-0786-CV, went on for several years as the parties contested issues of custody, visitation and child support involv ing a m inor ch ild. William R. Nicklas, Jr., Esquire, represented the minor child and Patricia F. O'Connor, Esquire, represented the father, John Leu. At a hearing o n Octob er 3, 1997, th e parties finalized an agreement on the record on various issues, including child support and attorney's fees for Mr. Nicklas. Judge Dwyer instructed Respondent to prepare an order incorporating 8 the term s of the parties a greem ent for t he cou rt's signatu re. Within a month following the hearing, Respondent evidently forwarded a proposed order to Ms. O'Connor. Ms. O'Connor sent Respondent a letter dated November 4, 1997, acknowledging receipt of the order and requesting one modification but otherwise agreein g to the la nguag e. Ms. O'Connor requested that Re spond ent sub mit a rev ised ord er for h er revie w and signatu re. There is insufficient evidence in the record to determine exactly why the proposed order was not finalized after November 4, 1997, but it is clear that no ord er was ever file d with t he cou rt. Respondent admits that h e failed to su bmit a final order. Respondent claims that he was u nder the m istaken imp ression that o pposing c ounsel w ould prepar e and su bmit the order. No order w as submitted to Judge D wyer. B.C No. 2001-200-16-8 Rosen C omplaint On May 4, 1 996, Melanie Rosen ( Rosen ) was injure d in a moto r vehicle accident. On or ab out Febru ary 12, 1997, R osen retaine d Respo ndent to represent her in a suit to recover damages. Rosen and her mother, Linda Rosen, signed a retainer agreement that provided for Respondent to receive a contingency fee of thirty-three percent of any and all monies that were recove red. In 1998, su it wa s file d in the D istric t Court for Pr ince Geo rge's County against State Farm Insurance. Respondent asked James J. Cagley, Esquire ("Cagley"), to handle the trial for him. Cagley had worked for Respon dent in the past as an as sociate but was not employed by Respondent or otherwise associated with Respondent's law practice at that time. Rosen was advised of and ag reed to C agley's par ticipation in the ca se in ad vance of trial. In July 1999, Cagley repre sented Ro sen at trial. Judg ment wa s entered in favor of Rosen in the amount of $7,274.59, plus court costs. On August 5, 1999, counsel for State Farm forwarded a draft in the a mount o f $7,324.5 9 to Cag ley. State Farm made the draft payable to Rosen and Respondent. Cagley turned the draft over to Respondent so Respondent could handle disbursement 9 of the p roceed s from the case . Some time following the receipt of payment from State Farm, Cagley prepared a handwritten list of medical bills and litigation costs related to the case. Thereaf ter, Cagley prep ared a sepa rate handw ritten docum ent titled Disbursement Sheet (Draft) , breaking down the amounts to be deducted from the Rosen award , including counsel fees, litigation expenses and outstanding medical bills and liens. In order to ensure that the client, Melanie Rosen, cleared $2,000.00, Respondent and Cag ley agreed to reduce their combined attor ney's fee to $2,319.95. Cagle y confirmed this in a hand written note to Respo ndent d ated O ctober 4 , 1999. On August 20, 1999, Respondent deposited the draft into his attorney trust account at the Suburban Bank of Maryland. Respondent admits that these funds represent trust money as defined by the Maryland Code, Business Occupations & Professions §10- 3 06 (d). On October 8, 1999, Respondent issued the following three checks drawn on his attorney trust ac count: Check# 768 769 770 TOTAL Amount $1,159.98 $2,000.00 $1,159.97 $4,319.95 Payee Gary Mininsohn Melanie Rosen James Cagle y By October 21, 1999, those three checks had posted to Respondent's trust account. At that point, the undisbursed balance (trust money) from the procee ds of th e Mel anie R osen ca se was $3,004 .64. On November 10, 1999, Respondent issued another check to Cagley in the amount of $61.60 to reimburse him for expenses. Of that check, $51.60 was directly attributable to th e Rosen case. Resp ondent co ntinued to m aintain possession and control of the remaining trust money from the Rosen case. After issuing the $61.60 check to Cagley on November 10, 1999, Respondent did not make any further distrib utions attributa ble to the Rosen case until June 2000. During that period, three medical bills or liens listed on the draft disbursem ent sheet pre pared by Ca gley remained unpaid, as f ollows: Dr. Michaels $ 250.00 10 Ger man tow n Injury Care C enter,. In c. MAMS I Lien TOTAL $2,392.09 $ 246.46 $2,888.55 Through June 2 8, 2000, th e balance in Respondent's attorney trust account remained above the undisbursed Rosen trust money balance of $2,953.04. On June 26, 200 0, Respondent wrote two checks to himself totaling $1,900.00. One check for $1,000.00 was annotated fee transfer and the other check for $900.00 was a transfer to payroll. The presentment of those two checks on June 28, 2000 caused the balance in the Respo ndent's trust acc ount to fall to $2,101.68, below the $2,95 3.04 that should have remained in trust from the Rosen case. In June 2000, Re spondent reached an agreement w ith a representative of Germantown Injury Care Center, Inc . to accept $1,554.00 as a compromise of Melanie Rosen's ou tstanding ba lance ow ed for me dical treatment. Respondent wrote a trust account check, for $ 1,554.00 payable to Germ antown Injury Cente r on Ju ne 23, 2 000. After deducting the payment of $1,554.00 to Germantown Injury Care C enter, Inc. from the previous Rosen trust money balance of $2,953.04, Respondent should have been holding $1,399.04 in trust money related to the Rosen case. Instead, the overall balance in Respondent's trust account remained at $547.68 from July 10, 2000 until September 5, 2000, w hen other client or fiduciary funds , unrelate d to the R osen ca se, wer e depo sited. After obtaining a reduction of the Germantown Injury Care Center, Inc . bill from $2,392.09 to $1,554.00, Respondent did not promptly disburse the amount of the redu ction ($838 .09) to his client, Melanie Rosen, or to any third party for Rosen's benefit. Further, Respondent still had not disbursed payments to Dr. Michaels and to MAMSI, as had been listed on the disburs emen t sheet p repared by Cagle y. In late No vemb er 2000 , Rosen 's mothe r, Linda Rosen , filed a complaint against Respondent with the Commission. With a cover letter dated December 4, 2000, Bar Counsel forwarded a copy of Linda Rosen's complain t to Respondent and req uested a written respon se. Bar Cou nsel's letter specifica lly requested that Respondent provide a full accounting of the settlement funds you received on behalf of Melanie Rosen, including copies of a settlement 11 distribution sheet, a dep osit ticket refle cting your deposit of the settlement funds and all canceled checks by which funds were disbursed. Bar counsel's letter further requested copies of Respondent's monthly trust account statements from the date the settlement funds were first deposited through the present. Respondent responded to Bar Counsel in a letter dated January 2, 2001, and received by the Commission on January 16, 2001. Respondent's letter did not provide the complete accounting of the Rosen settlement funds requested by Bar Counsel. With his letter, Respondent submitted copies of only three trust account checks, numbered 786, 788 and 789. The three checks, submitted by Respon dent, all dated October 12, 2000 , were ma de payable as follows: Check# 786 788 789 TOTAL Amount $584.99 $ 65.00 $100.00 $749.99 Payee Melanie Rosen Dr. Weiss U.S. Legal Sup port Respondent indicated in h is letter to Bar C ounsel that th e check to Melanie Rosen represented additional monies for Rosen linked to a reduction in a medical bill owed to a Dr. Bo lger (Germantow n Injury Care Center). Respondent did not disclose to Bar Counsel that the reduction had been negotiated in June 20 00. Resp ondent pr ovided no other inform ation in his letter concerning the amount deposited in his trust account as proceeds of Rosen 's case or about th e distribu tion of s uch fu nds. The check to R osen, purp ortedly written o n Octob er 12, 2000 , posted to Respondent's trust account on December 27, 2000. The check to Dr. Weiss, issued in payment of a medical bill incurred by Rosen, also dated October 12, 2000, posted to Respondent's trust account on January 3, 2001. The che ck to U.S. Legal Support, for a deposition transcript from a second unrelated personal injury case in which Respondent and Cagley also represented Rosen, also dated October 12, 2000, posted to the account on January 9, 2001. There was no recovery in the second case, which went to trial in February 2000. Upon deducting the combined total of those three checks, a balance of $649.05 in trust money should have remained on the Rosen client ledger. R esponde nt, however, maintained no running ledger balance or other record keeping system that kep t track of the trust m oney in th e Rose n case. 12 Marc O. Fiedler ( Fiedler ), an investigator employed by the Commission, testified in this proceeding that he was assigned to conduct further investigation of the complaint filed by Linda Rosen. Fiedler testified that he made an appointment to interview Respondent. When he made the appointm ent, Fiedler ask ed Resp ondent to have available all information and docume nts previously requested in Bar Counsel's letter dated December 4, 2000. At the time of the interview, Respondent did not have available and did not provide any deposit item(s), canceled checks or trust account statements. Respondent did provide Fiedler with copies of the three documents prepared by Cagley, includ ing the draf t disbursem ent sheet listing, inter alia, the disbursements to be made to Dr. Michaels and to MAMS I. When Fiedler asked Respondent if he had any written statement in his file showing the remittance to Rosen and how it was determined, Respondent was unable to produce any such statement other than the draft disbursement sheet prepared by Cagle y. At the conclusion of Fiedler's interview of Respondent, Fiedler reiterated Bar Cou nsel's request that Respondent provide bank statements, deposit items and canceled checks, i.e., records that would enable Bar Counsel to review Respondent's receipt, maintenance and disbursement of trust money in the Rosen case. When Bar Counsel had not received such records by February 28, 2001, Fiedler sent Respondent a letter to that effect. Respondent then forward ed a set of m onthly trust accoun t statements without any explanatory cover le tter. Because the materials that Respondent submitted were insufficient to satisfy Bar Counsel's request, Bar Counsel issued a subpoena to the custodian of records at The Columbia Bank (successor to Suburban Bank of Ma ryland) to obtain Respon dent's comp lete trust account records dating back to May 1999. The C olumb ia Ban k ultima tely produ ced suc h recor ds to B ar Cou nsel. Respondent did not disburse payments to Dr. Michaels in the amount of $250.00 and to MAMSI in the amount of $246.46, either from his trust account or from any other account. The only written distribution statement that may have bee n provide d to the client, M elanie Rosen, was the draft disbursement sheet prepared by Cagley. That statement inaccurately reflected the determination of the remittance to Rosen because the remittance was premised, inter alia, on the ded uction of th e amoun ts listed as payments to be made to Dr. 13 Mich aels and to MA MSI. The analysis of the Rosen tru st money and of other ac tivity in Respo ndent's trust account is supported by bank records obtained by Bar Counsel for th e period from May 7, 1999 through April 30, 2001. In addition, John DeBone, a paralegal employed by the Commission, pre pared a transaction sum mary and testified in supp ort of h is analysis o f the ba nk reco rds. Respondent has been unable to lo cate the Ro sen file. Res ponden t failed to provide a copy of any written statem ent he ma y have sent to Rosen explaining the outcome of her case and showing the remittance to Rosen. Respondent explained that he could not recall whether or not Rosen received a written statement incorporating the disbursements in her case from Respondent or if it was se nt by Cag ley. In court, Resp ondent testif ied that he continued to hold funds in the Rosen account to pay Dr. M ichaels and MAM SI and tha t he wrote c hecks as re cently as March 31, 2003, but has not sent them. Respondent could not assert that there were sufficient funds in his trust account to cover those checks on the date that he testified. Respondent said he believed that he had funds of his own in the trust account when he drew the two checks in the amount of $1,900.00 and m istaken ly transfer red clien ts' funds . Respondent testified that he had kept the Rosen account open while he attempted to resolve a claim of the chiropractor by attempting to achieve a reduction in the latter's fee. Furthe r, he says he lost to uch with h is client, who move d frequ ently. BC Docket No. 2001-237-16-8 Failure to Pay Withholding Tax Since 1995, Respondent has continuously maintained an employer withholding tax account with the State of Maryland, Comptroller of the Treasury ("Comptroller"). That account has been held in the name of Gary S. Mininsohn. In September 1995 and October 1996, tax liens were filed against Respondent for delinquent payment of income tax reported as being withheld from his employee s' wages. T hose two liens were s atisfied in O ctober 1998 through a bank gar nishmen t. As an employer, Respondent was responsible for filing periodic reports of 14 income tax with held fro m his em ployees' w ages. Those reports, designated by the Comptroller as Form MW-506, are to be filed on either a monthly or quarterly schedule. Th e employer is re quired to rem it payment of w ithheld incom e tax to th e Com ptroller a t the sam e time su ch repo rts are file d. Respo ndent, who was on a monthly rep orting sche dule, did no t file any Forms MW-506 after January 1999. Consequently, the Comptroller began preparing estimates of income tax that should have been withheld from his employees' wages. Respondent did not notify the Comptroller in writing that he no longer had any employees. The Comptroller received year-end W-2 forms for 1999 and 2000 reflecting that Respo ndent did have em ployees wh o received taxable incom e from Respo ndent in those yea rs. After January 1999, Respondent no longer withheld State income tax from the wages of his employees and therefore did not hold such funds in trust for the State. Resp ondent like wise ma de no paym ents of State income ta x that should have been withheld from h is employees' wages after Janu ary 1999. By providing W-2 forms reporting Maryland income tax withholdings in 1999 and 2000, Respondent misrepresented to his employees and to the State that money had been withheld for payment of taxes when, in fact, such money had not been w ithheld. On November 6, 2000, the Comptroller filed a Notice of Lien of Judgment for Unpaid Tax against Respondent in the Circuit Court for Montgomery Cou nty. That lien was for unpaid withholding tax in the amount of $1,899.13, plus interest of $308.23 and penalty of $248.89, for a total lien amount of $2,492.25. That lien covered Respondent's withholding tax liability for 1999. On February 25, 2003, the Comptroller filed another cumulative withholding tax lien agai nst R espo ndent in the C ircuit Co urt for M ontg ome ry County. That lien reflected unpaid tax in the amount of $5,129.16, plus interest of $1,704.58 and penalty of $850.66, for a total lien amount of $7 ,684.40, covering the years 1999 through 2001 . As of the conclusion of the hea ring befor e this court, Respondent had not satisfied any po rtion of that lien , nor had he entered into any paym ent plan with th e Com ptroller. Respondent understood his obligation as an employer to withhold income tax from the salaries of his employees and to report such withholding. Respondent further understood the fiduciary nature of his obligation to the State and federal tax colle cting au thorities, i .e., that monies withheld by an employer for 15 paymen t of em ployees' in come tax con stitute tru st mon ies. Respondent acknowledges that he failed to submit employee withholding returns and payment at times, ascribing his shortcomings to financial problems and neglect of administrative details. Respondent contracted the services of an agency to prepare employee-withholding forms in the year 2000, although he submitted the forms himself. Respondent suggests that the agency was incorrect in filling out the forms and that he did not catch the m istakes before submitting them. Respondent has not notified the Comptroller that he has no emplo yees sub ject to w ithhold ing. Respondent's Case The Respondent testified o n his own behalf. R esponde nt testified that in 1996, a number of events occurred which d ramatically affe cted his ability to cope with his personal and professional responsibilities. In the spring of that year, Respon dent receiv ed a telephone call informing him that his wife had been named in a dom estic proceeding as a para mour of the husband of a couple with whom Respondent and his wife had maintained a close social relationship. Respondent and his wife separated as their children's school year ended in mid-J une 19 96. Re spon dent's mother died July 4, 199 6. Her dea th was esp ecially difficult for the Respondent, coming close on the heels of the breakup of his marriage. During that same year, an administrative assistant of long standing, upon whom the Respo ndent relied heavily, left his employ and moved to Texas. Respondent testified that those three events, which came in such close succes sion, stag gered R espon dent. Respondent has mainta ined an ac tive trial practice f or most of his professional career. Res ponden t testified that his personal difficulties, including the loss of his dependable assistant, left him unable to provide adequ ate sup ervision to emp loyees he hired. Furthermore, Respondent experienced financial problems as he attemp ted to provide college educations for his two children and cope with debts that remained afte r his d ivorce. R espo ndent's difficulty in focusing on professional matters caused a downturn in his practice, and his acceptance of small retainers from c lients sev erely limite d the ca sh flow in his pra ctice. 16 Respondent and his witnesses p ortrayed an ind ividual wh o is disorgan ized in both his personal and professional lives. For example, although Respondent believes he received a copy of the Interrogatories from Reu schling's attor ney, Respondent does not a ctually recall seeing them. Re sponden t also does not recall receiving the court orders, but Respondent does acknowledge that at some p oint he w as perso nally han ded a c opy. Respondent called a num ber of w itnesses to attest to his profession al integrity and competence. James P. Nolan, President of the Maryland State Bar Association, testified that he and the Respondent were law school classmates and that their respective families had been close socially since the time the two were in law school. Mr. Nola n has called upon Respondent for legal advice and referred cases to him, even recently. Mr. Nolan wa s aware of the personal problems Respondent encountered and observed that he had seemed to lose focus on the b usiness side of his law practice . John Kudel, a former President of the Montgomery County Bar Association and Montgomery County Bar Foundation and member of the Board of Governors of the Maryland State Bar Association, testified that he and the Respondent have shared office space for ab out five years and during that time have worked on some cases togethe r. Mr. Kudel w as aware of the events that occurred in Respondent's life in 1996 and had observed tha t thereafter there had been a noticeable turnover in Respondent's employees, apparently resulting from a rather haphazard hiring of unskilled people b y the Respo ndent. The office manager of the attorneys who share offices with the Respondent testified that she has known the Respondent for about 18 years. She has observed that, since the events of 1996, Respondent has not attended to details such as timely billing and careful hiring of emp loyees. As a result of the latter, Respondent has had a series of inexperienced employees who did not rem ain in his employ long enough to be properly trained and become effective emplo yees. An employee of Respondent's counsel testified that she has been working for Respondent as an independent contractor since February of this year, acting as a bookkeep er. She has kept track of Respondent's accounts receivable and payable, client billin g and ban k accoun ts, including h is client trust acco unt. William Simmons, C hair of the Montgomery County Lawyer Assistance 17 Program testified that he had received a complaint from Judge Vaughey of the District Court of Maryland for Montgomery County and contacted the Respon dent. Simmons has me t with the R esponde nt three or fo ur times to assist the Respo ndent in organi zing his practice . The three lawyers w ho testified f or the Res ponden t all asserted that their experience over the years with the Respondent have led them to conclude that he exh ibits a hig h level o f legal c ompe tence a nd integ rity. Respondent called Da vid R. Ed dy, Ph.D., a clinic al therapist licen sed in Virginia and Maryland, w ith whom he h as been in counse ling since January of this year. Dr. Eddy testified that he has worked with Respondent to resolve issues arising from the person al events that occurred in 1996. Dr. Eddy assesses the Respondent as one who wishes to please everyone and who leads a chaotic personal and professional life. Dr. Eddy believes that the Respondent exhibits numerous features of depression, including general sadness and sleep interruption and is preoccupied with the losses in his life. During counseling sessions, Respondent has acknowledged to Dr. Eddy that he committed many of the acts or omissions that led to the current charges agains t him by th e Attor ney Grie vance Com mission . Upon cross-examination, Dr. Eddy testified that Respondent's apparent depression does not affect his ability to recognize his responsibilities, but affects his ability to carry out those responsibilities. Dr. Eddy could not assert a causal connection between Respondent's psychological [condition] and the miscon duct alle ged in th is proce eding. While Respon dent adm itted to most, if n ot all of the vio lations, he ascribes their course to his personal difficulties and his difficulty in focusing on details in his law practice . CONCLUSIONS OF LAW Based upon the findings of fact proven by clear and convincin g evidenc e, this court conc ludes: Reuschling Complaint: The evidence clearly establishes that the Respon dent failed to appear in the District Court for exam ination in aid of enforcement of judgment on Augu st 18 23, 2000. Thereafter, R espondent appe ared on November 15, 2000, without the required records he had been ordered to produce. Although Respondent claims that his absence on December 20, 2000 is explained by inclement weather, he took no steps to reschedule the pro ceeding o r to prevent a proceeding being held to determine whether or not he should be found in contemp t. When Respondent appeared in court on January 24, 2001, he was ordered b y the Judge to produce a number of records on or before March 12, 2001. Respondent did not produ ce thos e record s. Respondent has not asserted that he had no v alid obligation to respond and to con form to the rules of c ourt. In connection with Mr. Reuschling's efforts to enforce a judgment obtained against Respondent, Respondent repeatedly failed to appear in court a nd to produce documents as directed by court order. Respondent knowin gly disobeyed numerous obligations and court orders and is in violation MRPC 3.4(c). Failure of an attorn ey to be presen t for a sched uled court appearance interferes with the administration of jus tice. Attorney Grievance Comm n v. Ficker, 319 M d. 305, 3 15 (19 90). There, the attorney was found in violation of the ethical rule that prohibited engaging in conduct prejudicial to the administration of justice, for missing a court appearance on behalf of a client. In this instance Respondent failed to appear at a procee ding that he personally had been ordered to attend and twice failed to produce records as ordered by the District Court. Respondent engaged in conduct that was prejudicial to the administration of justice in violation of MRPC 8.4(d). Respondent is, by violatin g 8.4(d ), also in v iolation of Ru le 8.4(a) . Leu-Gearhart Comp1aint Respondent was directed by Judge Dwyer to prepare an order incorporating the terms of the parties' agreement at the conclusion of proceedings on October 3, 1997. Respondent was aware of Judge Dwyer's direction as was evidenced by the correspondence between the Respondent and the other att orne ys involv ed in the case. R espon dent did not sub mit the o rder as d irected. Respondent violated MR PC 1.3 by not acting with reasonable diligence and promptness in representing a client. By Respondent's lack of diligence and failure to fulfill th e directiv e of the court h e has vi olated R ule 8.4( d). Petitioner initially charged R esponde nt with viola tion of MRPC 1.4 by failing 19 to keep his client reasonably informed about the status of a matter ... and promptly comply [ing] with reasonable request for information. Petitioner presented no eviden ce regarding Respondent's communication with his clien t, and the court th erefore finds n o violation of M RPC 1.4. Rosen Complaint Respondent deposited into his client trust account the sum of $7,324.59 upon receipt of a check in that amount from Cagley, his associate counsel in the case. Cagley prepared a hand written document entitled Disbursement Sheet (Draf t), which apparently was the only documentation of the outcome of the proceeding and explanation of intended disbursements from the proceeds. Petitioner's paralegal, who examined the Rosen account testified that the Respondent disbursed $2,000.00 in a check payable to Melanie Rosen on October 8, 1999. Respondent was unable to produce copies of correspondence with hi s client, te stifying th at he ca nnot lo cate tha t file. Respondent drew a check to Rosen for $584.99 that was allegedly written on October 12, 2000 . Howe ver, the chec k, did not po st to the acco unt until December 27, 2000, two months after the checks were purportedly written, one month after Rosen's mother filed her compliant and after Respondent received notice of the Rosen complaint. After deducting the total of the three checks, $649.05 should have re maine d from the Ro sen cas e. Respondent is unable to accou nt for th e mon ey that has not bee n disbu rsed to R osen. Complicating the efforts of the Petitioner to investigate the complaint was the inad equacy, and more specifically the lack of documentation of records concerning Res pondent's handling of the Rosen account. P articularly notable is Responden t's failure to maintain a running ledge r balance or other record keeping system with regard to the Rosen account. The evidence presented in the Rosen claim demonstrates the disarray in Respondent's practice. Respondent could not produce his file or any trust account records in that matter. By failing to keep complete records of his client's trust fund in this case, Respondent has violated MRPC 1.15(a) requiring that he maintain such records for five years after termination of the representation. Although Respondent is unable to p roduce ev idence that h e notified h is client in writing of the outcome of the case and the remittance to which she was due, the burden 20 to prove violation of MRPC 1.5(c) is upon the Petitioner. While the Respondent cannot show evidence that he gave such notice to his client, the Petitioner did not produce sufficient evidence to persuade the court that the Respondent did not provide such information. Petitioner has not shown by clear and convincing evidence that Respondent is in violation of MRPC 1.5(c) for failure to submit to his client a written statement upon conclusion of a conting ent fee matter. Sim ilarly, although there is no evidence that Respondent promptly rendered a full accounting regarding the funds which he was holding for Rosen, the Petitioner has not met its burden of showing by clear and convincing evidence that Respondent is in violation of MRPC 1.15(b) by failing to notify the client of receipt of funds. In light of the complete disarray of Respondent's records, it may well be that he has not provided such information, but the Petitioner has failed to establish that to th e court's s atisfacti on. Respondent did forward a payment of $2,000.00 to Rosen giving some notice reasonab ly soon after the receipt of funds. Respondent received client funds in August of 1999. Through his efforts, almost a year later, he achieved a substantial reduction in one of the client's obliga tions in connection with the litigation. Even taking into account the financial benefit of that delay, the fact that Respondent still had client funds in his account more than one year after their receipt and four mo nths after his compro mise of tha t claim establishes by clear and convincing evidence that Respondent is in violation of MRPC 1.15(b) by failing to deliver promptly to the client funds w hich he he ld on her behalf . Respondent admits that he wrote two c hecks for his ow n benefit for a total of $1,900.00. These checks were drawn upon the Respo ndent's client trust account and resulted in an improper disbursement of funds from the Rosen case. The transfer of those funds from his client trust account caused the balance in the trust account to drop b elow the b alance nec essary to mainta in the funds of the R osen ca se. The Respondent violated Maryland Rule 16-609 which prohibits an attorney from borrow[ing] or us[ing] any funds for any unauthorized purpose and Maryland Code, Business Occupations and Professional[sic] Article §10-306 which prohibits a lawyer from using trust money for any purpose other than that for which the money is entrusted to the lawyer. Withholding Tax Complaint: 21 Respo ndent has willfully and regularly failed to comply with his obligation as an employer for the last several years, by failing to withhold State income tax from the wages of his employees, and to hold such funds in trust for the State. His failures are conduct prejudicial to the administration of justice. Respo ndent h as viola ted Ru les 8.4(a ) and (d ). By willfully failing to withho ld and pay income tax withheld Respondent has violated Tax-General Article §13-1007(b) & (c). The Respondent's conduct was both willful and a violation of state law. Respondent's conduct is a lso in violation of the Tax-General Article § 10-906(a) & (b). Respondent has not maintained a separate ledger account for w ithholdings t hat in dica tes clearl y: (1) the amount of income ta x withheld; and (2) that the income tax is the property of the S tate in vio lation of Tax-G eneral A rticle §1 0-906 (c). By failing to withhold income tax and maintain the required documentation, Respo ndent h as also v iolated M RPC 1.15(b ). Failure to comply w ith a know n legal duty is willfu l condu ct. Attorney Grievance Commission v. Post, 350 Md. 85, 93 (1998). Here, as in Post, Respondent knew that he was legally required to withho ld funds in trust, to promptly remit the funds to the Comptroller . . . , and to timely file returns supporting the withholdings. Post, 350 M d. at 93. Res ponden t failed to comp ly with a k nown legal du ty. Most troubling is the charge tha t Respon dent has violated Rules 8.4(b) and (c). By the language of Tax-General Article, Section 13-1007, Respondent has committed criminal acts. In the course of failing to submit withholding taxes and proper returns, he has misrepresented the status of withholding on IRS W2 Forms. A literal reading o f the rules supports Respondent's violation of Rules 8 .4 (b) an d (c). The Court of Appeals in Post, supra, dealt with very similar conduct [although Post was not charged with violation of Rule 8.4(c)]. There the Cou rt did not hold that the respondent's conduct reflects adversely on his fitness as a lawyer. 350 Md. at 99. Respondent demonstrates a certain callousness toward his situation. Respondent relates his current difficulties to legitimate, significant personal problems he encountered in 1996, years before the events that g ave rise to the instant complaints. Respondent does not, and could not claim ignorance of the ethical requireme nts of the leg al professio n. Even a s he appe ared in these 22 proceedings, he had not broug ht to closure any of the matters complained of. Respondent has dem onstrated reluctance to acc ept respon sibility for his actions . Howev er, while the evidence amply supports the complaints against Respondent and their seriousness, it does not support a conclusion that the Respondent has been dishonest. In managing his practice, Respondent has been inefficient, disorganized and careless to the exten t of disregard of his respon sibilities. This court accepts the sincerity of the three lawyers who testified on Respondent's behalf. Respondent's conduct, as improper as it is, should be assessed against the backdrop of more than 25 years of a very active practice. Therefore, while finding that Respondent, by his conduct, literally violated Rules 8.4(b) and (c), this court does not believe that Respondent's conduct clearly and convincingly is in violation of those Rules in light of Post. II. Standard of Review In proceedings involving attorney discipline, this Court has original a nd comp lete jurisdiction. Attorney Grievance Comm'n v. Seiden, 373 Md. 409, 414, 818 A.2d 1108, 1111 (2003). Clear and convincing evidence must suppo rt the hea ring jud ge's find ings. Attorney Grievance Comm'n v. Monfried, 368 M d. 373, 388 , 794 A.2d 92, 100 (2 002). As a result, we review the record independently but generally accept the hearing judge's findings of fact unless they are clearly erroneous. Attorney G rievance C omm'n v. Garfield , 369 Md. 85, 97, 797 A.2d 757, 764 (2002). Any conclusions of law made by the hearing judge, such as whether provisions of the MRPC were violated, are subject to our de novo review . Attorney Grievan ce Com m'n v. M cLaugh lin, 372 Md. 467 , 493, 813 A.2d 1 145, 1160 (200 2). III. Discussion 23 A. Bar Counsel s Exceptions and Mininsohn s Ex ceptions Relating to Tax Obligations Bar Counse l filed exceptions challenging the hearing judge s conclusion that Mininsohn did not violate R ules 8.4(b) a nd 8.4(c) b ased on h is failure to w ithhold State income tax from h is employees wages and to hold such funds in trust for the State and to pay the income tax over to the State Comptroller as required by law. Bar C ounsel disa grees with the hearing judge s conclusion that, while Mininsohn literally violated Rule s 8.4(b) and (c) , his conduct w as not disho nest and thus he did not violate Rules 8.4(b) and (c). We agree with Bar C ounsel. Mininsohn, on the othe r hand, asse rts that he did n ot willfully fail to w ithhold and pay income tax because the attorney he had hired handled his tax obligations incorrectly. He also claims that he relied heavily on an emp loyee who had w orked for him fo r 11 years to prepare the proper tax forms. When this employee left Mininsohn s employment, Mininsohn says he was not familiar with some of the specifics of the procedures involved and, thus, failed to handle his tax obligations properly. We overrule Mininsohn s exception. Mininsohn willfully and regularly failed to comply with his obligation as an employer for the last several years, by failing to withhold State income tax from the wages of his employees, and to hold such funds in trust for the State. Such failu res, Judge T isdale concluded, violated Rule 8.4(a) and (d) as conduct prejudicial to the administration of justice, Sections 13-1007(b) and (c) and Sections 10-906(a) and (b) of the Tax-General Article, and Rule 1.15(b) as a failure to maintain required doc umentation. Judge T isdale s findings were 24 supporte d by clear and convincing evidence and, thus, are not clearly erroneous so that Mininso hn s exce ptions are w ithout merit. We agree with Bar Counsel that, in addition to the violations Judge Tisdale found, Mininsohn also vio lated R ules 8.4 (b) and (c). We disagree with Judge Tisdale s finding that, while M ininsohn literally violated rule s 8.4(b) and (c), . . . [his] conduct clearly and convincin gly [was no t] in violation o f those rules in light of [Attorney Grievance Comm n] v. Post, [350 Md. 85, 710 A.2d 935 (1998)]. Mininsohn had maintained a withholding tax account with the State of M aryland since 1 995. Tax liens were f iled against h im in September 1995 and October 1996 for delinquent payment of income tax reported as being withheld from his employees wages. By means of a ba nk garnishmen t, the two liens were satisfied in October 1998. Mininsohn also did not file the required periodic reports after January 1999. From January 1, 1999 to January 31, 2003, Mininsohn remitted withholding taxes only once when he remitted withholding taxes for $248.31 in Janua ry 1999. Further, in that forty-nine m onth period, Mininsohn failed to file th e reports in thirty-sev en of the m onths, even though h is year end reports for 1999-2000 prepared by an accounting service showed that he had emplo yees durin g those years fro m wh om he had w ithheld t axes. On Novemb er 6, 2000, the Com ptroller filed a lien against M ininsohn f or unpaid withholding tax for 1999 for a total of $2,492.25, including interest and penalties. On February 25, 2003, the Comptroller filed another lien against Mininsohn for a total of 25 $7,684.40 for 1999 through 2001. When testimony and argument concluded before Judge Tisdale regarding this matter, Mininsohn had not entered into any payment plan with the Com ptroller. We agree with Judge Tisdale that Mininsohn willfully failed to comply with his tax obligations. [W]illfulness may be established merely by proving a voluntary, intentional violation of a known legal du ty. Attorney Grievance Comm'n v. Boyd, 333 Md. 298, 309, 635 A.2d 382, 387 (1994). [T]he duty of an employer to file withholding returns and pay withheld taxes is a known legal duty . . . . Id. We also have concluded that, when an attorney ne glects statutory tax obligations, it ordinarily reflects adversely on his or her honesty or fitness to practice law. Attorney Grievance Comm n v. O Toole, ____ Md. ____, ____ A.2d ____ (2 004); Attorney Grievance Comm n v. Angst, 369 Md. 404, 419-20, 800 A.2d 747, 756-57 (2002); Attorney Grievance Comm n v. Atkinson, 357 Md. 646, 655-66, 745 A.2d 1086, 1091 (2000). Judge Tisdale, however, relies on Attorney Grievance Comm n v. Post, 350 Md. 85, 710 A.2d 935 (1998) to exempt M ininsohn f rom this ge neral rule and to con clude that h e did not violate 8.4(b) and (c). We believe Post is distinguishable because Mininsohn s circumstances differ signific antly from Post s. In Post, we observed that Rule 8.4(b) contemplates that the criminal act reflect adversely on the character traits or fitness as a lawyer, [and that] it follows tha t what the R ule contemplates is that the criminal act evidence another character trait, which, like honesty and 26 trustworthiness, is relevant or critical to the practice of law. Id. at 97, 710 A.2d at 941. We then conclude d that, under the circumstan ces of [P ost s] case, h is conduc t did not reflect adversely on his fitnes s as a lawyer because his problems were due to his lack of organizational skills, this was his first encounter with the lawyer discipline system, he was a man of g ood char acter, and he maintained, as required by Section 10-906(c) of the TaxGene ral Artic le, separ ate emp loyee acc ounts. Id. at 99-1 00, 710 A.2d a t 942. Mininsohn s conduct, on the other hand, refle cts adverse ly on his fitness as a lawyer. Unlike Post, Mininsohn did not maintain separate ledger accounts indicating clearly the amount of income tax withheld and that the income tax was the property of the state; he has refused to take responsibility for his failure to comply with his tax obligations, blaming, instead, his tax lawyer and his former administrative assistant; he has been reprimanded on a prior o ccasion ; and he has sev eral com plaints a gainst h im. Moreover, Mininsohn ackno wledges that he did n ot respond to the Co mptroller s efforts to communicate with him in a diligent manner. State tax liens w ere filed in 1995 and 1996 against Mininsohn. In 2000, the Comptroller filed another lien for failure to withhold taxes in 1999. In 2003, the Comptroller filed a cumulative lien against Mininsohn for the years 1999 through 2001. In short, the Comptroller has had to file four Notices of Lien of Judgment against M ininsohn, evidencing a pattern of delinquency and callous neglect exceeding that which we found in Post and which is more comparable to the conduct we found in Atkinson, 357 Md. at 654, 745 A.2d at 1090. 27 In Atkinso n, we distinguished Post and foun d that the attorn ey had violated 8.4(b) because Atkinson had purposef ully avoided almost all contact w ith both the state and federal income taxing authorities and at no point exhibited, over a period of eleven years, any real intention to fulfill her duties of filing the required returns and paying the taxes due, until the author ities disco vered h er delinq uency an d conta cted he r. Id. Mininsohn s repeated avoidance of his tax obligations and his lack of response to the Comptroller indicates that he, like Atkinson, lacked any real intention of fulfilling his duties. Such conduct re flects adve rsely on Mininsohn s character and demonstrates a lack of fitness to practice law. We, thus, sustain Bar Counsel s exception and find that Mininsohn violated 8.4(b). For similar reason s, we also a gree with Bar Counsel that Mininsohn violated 8.4(c). In Angst, 369 M d. at 419-20 , 800 A.2d at 756-57 , we conc luded that the attorney s dishonest and evasive conduct clearly evidence his lack of fitness to continue in the practice of law, and found that he violated, in addition to other rules, Rule 8.4(c) and (d). We noted that the attorney had engaged in a repeated pattern of delinquency . . . by failing to make the appropriate employee withholding tax payments. Id. at 419, 800 A.2d at 756. We also observed that the attorne y treated the delinquency notices and other inquiries from the Comptroller with neglect, forcing the Comptroller to resort to filing a Notice of Lien of Judgm ent. Id. at 420, 800 A.2d 756. Such conduct, we found, exe mplifies resp ondent's lack of hones ty and proclivity for e ngaging in conduct p rejudicial to the administration of 28 justice. Id. As we h ave pointe d out supra, Mininsohn repeatedly failed to make the appropriate employee w ithholding ta x payments a nd treated th e Comp troller s efforts to commu nicate his de linquencie s to him w ith neglect. We, therefore, su stain Bar C ounsel s ex ceptions, overrule Mininsohn s exceptions, and fin d that M ininsoh n violate d Rule 8.4(c) in addition to Rule 8.4(b). B. Other Exceptions Mininsohn filed several other exceptions. Regarding the Reuschling complaint, he contends that his failure to appear in court on two occasions did not violate Rule 3.4(c) because, in the first instance, he testified he was not aware of the court date, and, in the second instance, he testified that he failed to appear in court because of an ice storm and notified the court clerk to that effect. Regarding the Leu-Gearhart complaint, Mininsohn also argues that he did n ot violate Ru le 1.3 because he mistakenly believed that opposing counsel intended to prepare an Order at the direction of the court instead of him. Regarding the Rosen complaint, he further asserts that he did not violate Rule 1.15(b) because he had resolved all outstanding payments he had been required to make on a client s behalf. We disagree with Mininsohn, and we shall discuss each of his exceptions in turn. In the Reuschling matter, Mininsohn failed to appear in court on two occasions in a matter in which he personally was being sued by Reuschling. On June 29, 2 000, Sch wedt, Reushling s attorney, engaged a private pro cess server to serve M ininsohn p ersonally with two writs and an order directing him to appear for oral examination on August 23, 2000. 29 Mininsohn failed to answer either writ, to file a motion asserting a defense or objection, and to appear for oral examination. After Mininsohn failed to appear, S chwed t called him to ask him why he was not in court. According to Mininsohn, he told Schwedt that he was not aware of the August 23 hearing date. At the hearing on August 23, a show cause order was issued directing Mininsohn to appear in court on November 15, 2000. Mininsohn appeared in court on November 15, but he did not bring with him th e records h e had bee n ordered to produ ce so he was o rdered to appe ar again on De cemb er 20, 20 00. On Decem ber 20, 200 0, Minins ohn failed to appear in court a seco nd time. Mininsohn testified that he failed to appear in court because of an ice storm. He also claims that he notified the court clerk to that effect. In his findings, Judge Tisdale observed that there is no mention of a call to the court in the written motion to rescind body attachment that [Mininsohn] filed on January 5, 2001. Rule 3.4 (c) provides that a lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists. We are not persuaded by Mininsohn s contentions and agree with Judge Tisdale that Minin sohn viola ted Rule 3.4(c) when he repeatedly failed to appear in court and to produce documents as directed by court order. See Attorney Grievance Comm'n v. McCoy, 369 Md. 22 6, 235, 798 A.2d 1132, 1137 (20 02)(sustaining the hearing co urt s findings that Rule 3.4(c) was violated when the attorney failed to provide requested accounting records f rom his law practice). 30 With resp ect to his violation of Rule 1.3 arising out of the Leu-G earhart com plaint, Mininsohn argues that h e did not violate Rule 1.3 because he mistakenly believed that opposing counsel had the obligation, instead of him, to prepare an Order as directed by the court. On October 3, 1997, Judge Dwyer directed Mininsohn to prepare an Order incorporating the terms of the parties agreement. As Judge Tisdale found, the correspondence between Mininso hn and the other attorne ys involved in the case reveals that Mininsohn knew that he had the obligation to prepare a draft Order. On November 4, 1997, for example, one of the opposing attorneys wrote a letter to Mininsohn, requesting that he strike the final paragraph and resubmit the revised proposed Order. On December 21, 1999, Mininsohn himself states in a letter to another counsel that [i]t appears that it may have been m y respon sibility to dra ft that O rder. In another letter, dated January 18, 2000, Mininsohn asks the attorney to review the draft Order, stating I will then forward it to Judge Dwyer for signature. Rule 1.3 requires that [a] lawyer shall act with reasonable diligence and promptness in representing a client. Mininso hn s failure to prepare and submit a draft Order indicates a lack of rea sonable d iligence on his part. His effort to suggest that he mistakenly believed that opposing counsel had the obligation to prepare the Order was belied by the evidence in the record demon strating that he was aw are that he had been d irected by Judge Dwyer to submit a draft Order . Furthermore, if Mininsohn had been confused about his obligation, due diligence required him to clarify his role in preparing the Orde r to ensure th at it was pro perly 31 submitted. See Attorney Grievance Comm'n v. Granger, 374 Md. 438, 448, 452, 823 A.2d 611, 617, 620 (2003)(finding a violation of Rule 1.3 when the attorney never made any inquirie s to dete rmine if his clien t s bank ruptcy pe tition ha d been filed pr operly). Mininsohn also takes exception to the hearing judge s conclusion with respect to the Rosen complaint that he violated Rule 1.15(b), arguing that one of the reasons for the delay in finalizing dis burseme nts was the negotiation of a reduction of [one of the liens] and that all outstanding paym ents he had been required to make on a client s behalf had been resolved. As Judge Tisdale notes, Mininsohn retained client funds in his accoun t for more than one year after receiving them and four months after he negotiated the reduction of one of the client s liens. We agree with Judge Tisdale that Mininsohn violated Rule 1.15(b) by failing to deliver promptly to the client funds which he held on her behalf. Holding a client s funds for longer than a year in these circumstances is not prompt d elivery under R ule 1.15(b). See Attorn ey Grieva nce Com m'n v. Da vid, 331 Md. 317, 320-21, 323, 628 A.2d 178, 180-81 (1993)(concluding that the attorney s failure to return an unearned fee for nine months and to timely remit funds received on a client s behalf indicated serious neglect and inattentio n ). IV. Sanction As we have often stated, we discipline attorneys to protect the public and to safegu ard the public s confidence in the legal pro fession . Attorney Grievance Comm n v. Thompson, 376 Md. 500, 519, 830 A.2d. 474, 485 (2003). When considering the appropriate sanction, 32 we take into account the particular facts and ci rcums tances of eac h case. Id. Given the nature and extent of Mininsohn s conduct and the existence of several aggravating factors, we sh all impo se the sa nction o f disba rment. Ord inarily, disbarme nt follows any unmitigated misap propria tion of f unds. See Attorney Grievance Com m n v. H ayes, 367 Md. 504, 512 , 789 A.2d 119, 124 (2002). W ith respect to the hearin g judge s f inding that Mininsohn lacked dishonest intent, we observe that the lack of intent means only that disbarment does not follow as a matter o f cours e. See id. at 519, 789 A.2d at 12 8-29. A f inding of la ck of dish onest intent d oes not foreclose the imposition of the sanction o f disbarment altogether. Rather, as we explained in Haye s, Standard 5.11 of the American Bar Association Standards for Imposing Lawyer Sanctions (1986) provides that disbarment may be appropriate when: (a) a lawyer engages in serious criminal conduct a necessary element of which includes in tentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importatio n of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to comm it any of these offenses; or (b) a lawyer eng ages in any other intentional conduct involving dish onesty, fraud, dec eit, or misrepre sentation th at seriously advers ely reflect s on the lawyer's f itness to practice . Hayes, 367 M d. at 511 -512, 7 89 A.2 d at 124 . In this case, Mininsohn v iolated Rules 8.4(a), (b), (c), and (d), by his misconduct, and 33 Sections 10-906(a), (b), and (c) and 13-1007(b) and (c) of the Tax-General Article, by failing to pay taxes, withhold taxes, and file withho lding tax fo rms and p ayroll withholding taxes, and he did so repeatedly. State tax liens were filed in 1995 and 1996 against Mininsohn . In 2000, the Comptroller filed another lien for failure to withhold taxes in 1999. In 2003, the Comptroller filed a cumulative lien against Mininsohn for the years 1999 through 2001. In short, the Com ptroller has ha d to file four Notices of Lien of Judgment against Mininsohn, evidencing a pattern of delinquency and callou s neglect ex ceeding th at which w e found in Angst. Mininsohn s conduct also exceeds that found in Attorney Grievance Comm n v. Clark, 363 Md. 169, 767 A.2d 865 (2001) and Post, both failure-to-withhold cases where we imposed indefinite suspensions. In Clark, we determined that the sanction of disbarment was not warra nted beca use severa l mitigating fa ctors were present, nam ely that there had never been a finding of fraudulent intent on the part of the respondent, that the respondent, while often late, never sought to avoid his o bligation to file returns or remit taxes, and fina lly, that, as of the tim e of oral argumen t before this C ourt, respondent was current on--or in this case, had completed--the payment plan with the Comptroller. 363 Md. at 184-85, 767 A.2d at 873-74 (noting also that the attorney had attempted to come into compliance with the withholding tax requirem ents on several occasions and had taken addition al steps to ensure that the v iolation s wou ld not re cur). Similarly, in Post, we declined to impose disbarment b ecause B ar Coun sel readily acknowledged that [the] [r]espondent ha[d] been cooperative in the investigations of th is 34 complaint and . . . [had] never been the subject of prior disciplinary actions by Maryland Bar Coun sel. Post, 350 Md. at 91-92, 710 A.2d at 938. I n addition, we noted that Post was found to be "a man of good character, a truthful person, and a good attorney who has given his clients good a dvice and has served them we ll" and that he maintaine d the separa te employee payroll accounts as required by § 10-906. Id. at 92, 710 A.2d at 938. Mininsohn s conduct, in contrast, demonstrates an extensive pattern of indifference that, as in Angst, exemplifies . . . [a] lack of honesty and proclivity for engaging in conduct prejudicial to the administration of justice. Angst, 369 at 420, 800 A.2d at 756. Such a pattern of misconduct also may serve as an aggravating factor under Section 9.22(c) of the ABA Standards. We believe also that Mininsohn s conduct is distinguishable from the attorn ey s conduct in Hayes, where we concluded that the sanction of disbarment was not warranted because the hearing judge fou nd that the a ttorney lacked d ishonest inten t when he made personal use of client funds. Hayes was charged with violating Rules1.15(a), 8.4(a), Maryland Rules 16-607 and 16-609, and Section 10-306 of the Business Occupations and Professions Article. 367 Md. at 506-07, 789 A.2d at 120-21. The hearing judge concluded that all of the charges had been proven, based upon his findings that Hayes had settled a medical malpractice action on b ehalf of a homeless person w hom he c ould not find and for whom he had done pro bono work, commingled client funds with his own funds and drew a check from the trust fund payable to cash on four o ccasion s. Id. at 508-09, 789 A.2d at 35 122. The hearing judge also found several mitigating factors, with which this Court agreed: the respondent's candor in acknowledging his misuse of the attorney trust account; only one client was involved in the miscond uct; the misconduct occurred while the respondent was attempting to assist the clien t, without co mpensa tion, in a matter unrelated to the matter in which he represented the client; the fact that, when he lost track of him, the responde nt undertoo k to locate the client so that funds belonging to him could be returned; the respondent's participation in the Maryland Volunteer Lawyers S ervices and willingness to handle pro bono cases and the respondent's good charac ter, a s atte sted to by a number of character witnesses, includ ing two f ormer C ircuit Court judges . In addi tion, the hearing judge credited the testimony of Dr. Wendy Zimmerman, a licensed psychologist. She testified that the respondent suffers from attention def icit disorde r . . . . Id. at 509-510, 789 A.2d at 123. These findings, in addition to the absence of a finding of a violation of 8.4(c), as well as the lack of dishonest or fraudulent intent, led us to conclude in Hayes that the auto matic disbarment rule for misappropriation [did] not apply. Id. at 519, 789 A.2d at 128. We, therefore, ordered that Hayes be indefinitely suspended from the practice of law w ith the righ t to seek reinstate ment a fter 90 d ays. Id. at 520, 789 A.2d at 129. As we shall explore, unlike Hayes, Mininsohn does not e scape the a utomatic disbarme nt rule for mis approp riation b ecause severa l aggrav ating fa ctors ex acerba te his cas e. When considering whether to impose the sanction of disbarment, we have taken into account the aggravating factors found in Standard 9.22 of the American Bar Association Standards for Imposing Lawyer Sanctions (1991)(hereinafter ABA Standards ). Attorney Grievance Comm n v. Harris, 371 M d. 510, 4 83, 810 A.2d 4 57, 553 (2002 ). These factors 36 include: (a) prior discip linary offense s; (b) dishone st or selfish m otive; (c) a pattern o f miscond uct; (d) multiple o ffenses; (e) bad faith obstruction of the disciplinary proceeding by intentionally failing to com ply w ith rules or orders of the disciplinary age ncy; (f) submission of false evidence, false statements, or other deceptive p ractices durin g the disciplin ary process; (g) refusal to acknow ledge wr ongful n ature of co nduct; (h) vulnera bility of victim; (i) substantial ex perience in the practice o f law; (j) indiff erence to mak ing restitu tion. A myriad of these aggravating factors are present in this case. First, Mininsohn has a prior disciplinary offense. In Aug ust 2003, after Bar C ounsel investigated a client s complaint in a fam ily law ma tter, Mininsohn accepted a re primand. In the earlier matter, Mininsohn failed to dep osit the adva nce retainer o f $1,500 in his trust acco unt, failed to render a full accounting to the client, failed to refund promptly the unearned portion of the retainer, and failed to respond to the lawful demands by Bar Counsel for information concerning the client s co mplaint. Th is conduc t, resulting in a reprimand, is similar to the case sub judice, demonstrating Mininsohn s disdain for his professional responsibility and a certain callousness toward his situation. Another aggravating factor is apparent in Mininsohn s refusal to acknowledge the wrongful nature of his conduct. See ABA Standard 9.22(g). Judge Tisdale described Mininsohn as exhibiting a certain ca llousness tow ard his situation and a re luctance to 37 accept responsibility for his actions. That remorselessness exacerbates the egregiousness of Min insohn s co nduct. With almost twenty-five years experience at the bar, Mininsohn also has substantial experience in the practice of law. See ABA Standard 9.22(i). Inexp erience ha d nothing to do with M ininsohn s c onduct; in f act, one of h is witnesses testified that Mininsohn had taught him how to p roperly account for disbursem ents from the recove ry in a personal injury case. Unlike Attorney Grieva nce C omm n v. Aw uah, 346 Md. 420, 436, 697 A.2d 446, 454 (1997), where w e conclu ded that an inexperienced attorney lacked dishonesty when he mishandled funds, Mininsohn s twenty-five years of experience does not mitigate the seriousness of his c onduc t. See, e.g., Attorney Grievance C omm'n v. Garfield , 369 Md. at 106-107, 797 A.2d at 769 (citing the respondent s substantial experience in the practice of law as an aggra vating factor). In addition to considering aggravating factors, we also weigh mitigating factors when determining the app ropriate sanctio n. Id., at 98, 797 A.2d at 764. Mininsohn had several witnesses testify as to his character. While an attorney s character or reputation may serve as a mitigating factor, see Ha yes, 367 M d. at 510, 78 9 A.2d a t 123, we o bserve that, in Attorney Grievance Comm n v. Vlaho s, 369 Md. 183, 185-186, 79 8 A.2d 555, 55 6 (2002), we imposed the sanction of disbarment for the misappropriation of funds in spite of the fact that many witnesses found respondent to be trustworthy and honest because [i]t has long been the rule in this State that absent compelling extenuating circumstances, 38 misappropriation by an attorney is an act infected with dece it and dishon esty and ordin arily will result in disbarment. In other words, when misappropriation of funds is at stake, which is the case here, witnesses testifying to the attorney s honesty and integrity may be less persua sive. In sum, the general rule is that misappropriation of fu nds results in disbarment. In addition to many other serious violations, Mininsohn misappropriated funds that he had collected on behalf of clients as well as the Comptroller, and no compelling extenuating circumstances exist for an e xception to be made in Minins ohn s case . The agg ravating factors far outweigh the mitigating factors in this case. Therefore, we impose the sanction of disb armen t. IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING C O S T S O F A L L T R A NS C RI P T S, PURSUANT TO MARYLAND RULE 16-761, F O R W H I C H SUM JUDGMENT I S ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMM ISSION AGAINST GARY S. MININSOHN. Bell, C.J. would impose an indefinite suspension. 39

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