Attorney Grievance v. Stolarz

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Attorney Grievance Comm n v. Stolarz, Misc. AG No. 96, September Term, 2002. ATTORNEY GRIEVANCE COMMISSION FEES MISCONDUCT DISCIPLINARY MA TTE RS. Respondent negligently failed to notify his client s third-party assignee upon receipt of settlement funds an d failed to p ay to the assignee its interest from the settlement funds. Th is conduct constituted a violation of Rule 1.15(b). As to the sanction, it was deemed appropriate, on the facts of this c ase, to rema nd to the Attorney Grievance Commission for the parties to determine if disposition under Maryland Rule 16-735(b) (Termination accompanied by warn ing) co uld be e ffecte d. If not, the Court would determine what sanction would be appropriate. Circuit Co urt for Baltim ore City Case # 24-C-03-000739 AG IN THE COURT OF APPEALS OF MARYLAND Miscellaneous Docket AG No. 96 September Term, 2002 ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. JOHN B. STOLARZ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Eldridge, John C. (retired, specially assigned), JJ. Opinion by Harrell, J. Filed: February 11, 2004 I. John B. Stolarz, R esponde nt, was adm itted to the Bar of this Court on 9 November 1979. Stolarz is also a member of the Bar of California and a certifie d public accounta nt. He has engaged in the active practice of law in Maryland for approximately the last 23 years. The Attorney Grievance Commission ( the Commission ), acting through Bar Counse l, filed a petition with this Court for disciplinary action against Stolarz alleging violations of the Maryland Rules of Professional Conduct (MRPC) in his representation of Stephen Kreller in connection with a personal injury case. Based on a complaint from an assignee/creditor of Kreller, the Commission charged Stolarz with violating Rules 1.15(b) (Safekeeping Prop erty) 1 and 8.4(d) (Misco nduct). 2 The charges stemmed from a complaint by Melina Winterton, representative of the Bank of the Com monw ealth ( the ba nk ) in 1 Rule 1.15 (b) provide s that: (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 shall 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 full accounting regarding such property. 2 Rule 8.4 provides in relevant part: It is professional misconduct for a lawyer to: (d) engage in conduct that is prejudicial to the administration of justice. . . . Norfo lk, Virg inia. Pursuant to Ma ryland Rule 16-752(a), 3 we referred the matter to Judge Thomas E. Noel of the Circuit Court for Baltimore City to conduct an evidentiary hearing and make findings of fact and conclusions of law. Judge Noel held an evidentiary hearing on 17 June 2003. Petitioner was represented by Bar Co unsel and Respon dent was represented by counsel. The matter was taken under advisement, and the parties submitted Proposed Findings of Fact and Conclusions of Law. On 16 July 2003, Judge Noel filed the following findings of fact and conclusions of law: Findings of Fact The Court finds that the following facts have been proven by clear and convincing evidence: 1. The Petition of Disciplinary or Remedial Action filed against Respon dent, John B. Stolarz, alleges Professional Misconduct in violation of Maryland Ru les of Pro fess iona l Conduct 1.1 5(b) and 8.4(d) re spec tivel y. 2. This claim arose from Respondent s representation of Stephen Kreller in connection with a personal injury case. 3. Kreller obtained a loan from the Bank of the Com monw ealth ( Complainant ) in Norfolk, Virginia, for $300.00 by using his potential recovery in the personal in jury case as colla teral. 4. Respondent had no knowledge of the transaction between Kreller and Complainant until he received an Attorn ey Ackno wledgem ent 3 Rule 16-752(a) (Order designating judge) provides: 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 setting dates for the completion of discovery, filing of motions, and hearing. 2 [misspelling in original document] form via facsimile from Complainant on November 2, 2000. 5. Stolarz executed the Attorney Acknowledgement on November 6, 2000, thereby agreeing to honor Complainant s lien out of any funds received by settlement or court order on behalf of Kreller. The acknowlegement, [sic] however, states that Respondent is not a personal guarantor of th[e] loan. 6. The personal injury case settled on or about January 19, 2001 for $9200.00. On that date Sto larz prepared a Settlement Disbursement Memorandum listing all expenses to be paid from the settlement, including creditors and attorney s fees. Kreller reviewed the memorandum, which clearly state d tha t the c lient is un der a duty to advise the a ttorn ey of any expenses that were not listed. The client signed the document acknowledging that he had received it, accepted the notices therein, and authorized disbursem ent. 7. From the settlement Responden t made disb ursemen ts to certain medical providers on Kreller s behalf and deducted his fee for the personal injury case, as well as, for representation of the client in a prior criminal matter. All the remaining fu nds were released to Kreller. 8. Stolarz adm ittedly neglected to list the loan from Complainant as one of Kreller s obligations to be paid out of the settlement proceeds and made no payment to them. 9. In Octob er of 200 1, Comp lainant learned that the case had been settled and that settlement check had b een disbursed in the na mes of Stolarz and Kreller. Complainant contacted Respondent to obtain payment on the lien. 10. Respondent contacted his client and advised him to pay off the loan, to which Keller agreed, however, Kreller failed to contact Complainant or to make any payments. 11. In Decembe r of 2001, Com plainant demande d that Stolarz pay the loan. Responden t agreed to try to compromise in order to resolve the matter as he was p artly responsible f or the outstan ding debt. Attempts at compromise failed. 12. On February of 2002, Complainant left a phone m essage w ith Respondent advising him that a complaint would be filed against him. May 1, 2002, Com plainant s representative wrote to S tolarz to reiterate that a complaint would be filed with the Attorney Grievance Commission of Maryland. 13. In a letter dated May 2, 2002, Respondent informed Complainant that he would file suit against it should a complaint, which he considered defamatory, be filed. 3 14. The Attorney Grievance Commission of Maryland received Complainant s formal complaint on May 6, 2002. 15. On February 3, 200 3, the Maryland Cou rt of App eals Ordered that this Court hear this matter. Conclusions of Law A. Respon dent is accused of violating Maryland Rule of Professional Conduct 1.15(b) which states: Upon receiving fun ds or other p roperty 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 shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to rece ive and, up on reque st by the client or third person, sha ll promp tly render a full acc ountin g regar ding su ch prop erty. B. After the settlement check was issue d to Resp ondent, he admittedly failed to promptly notify Complainant, a third party with interest in the settlement funds , that a set tlemen t had be en rece ived. Respondent, wh ile paying other credito rs on Kre ller s behalf o ut of the settlement proceeds, admits to fa iling to mak e payment to Comp lainant due to his own oversight. C. This Court finds by clear and convincing evidence that Respo ndent, in failing to promptly notify Complainant of receipt of the settlement funds and failing to pro mptly deliver Complainant s interest in those funds, violated Maryland Ru le of Professional C onduct 1.15(b). D. Respondent is also accused of violating Maryland Rule of Professional Conduct 8.4(d), which states that it is professional misconduct to: engag e in con duct tha t is prejud icial to the admin istration o f justice . E. It is alleged that R esponde nt s letter, dated M ay 2, 2002, to Complainant was a threat intende d to deter the filing of a co mplaint w ith the Attorney Grievance Commission of Maryland. F. Maryland courts have generally found two specific types of conduct as prejud icial to the admin istration o f justice . First, conduct that impacts on the image or the perception of the courts or the legal profession and that engenders disrespect for the courts and for the legal profes sion. Attorney Grievance Commission v. Alison, 317 Md. 523, 565 A.2d 660 (1989). The second, conduct that is crimin al in natu re or co nduct. Attorney Grievance Comm ission v. Shein bein, 372 Md. 224 , 812 A.2d 981 (2002). G. Respon dent testified th at he wro te the letter date d May 2, 2002, warning Complainant that he w ould su e . . . for defamation as a response to a phone call from Complainant s representative threatening to file a complaint 4 that would allege that Stolarz was misusing escrow funds. That conversation was not memorialized and Complainant s representative was not present at the hearing to testify about that communication. Furthermore, Stolarz maintains that he believes the Com plainant threa tened to brin g this action in an effort to collect his client s debt, which is certainly not a legitimate or appropriate use of the grievance procedures of this state. Moreover, it is clear from the tenor of the letters written between the p arties and to the Attorney Grievance Commission, that there was a great deal of tension between the Complainant and Respondent. Based upon the a foremen tioned reaso ns this Court finds by clear and convincing evidence that Respondent did not act unreasonably in warning Complainant that a defamation claim would be asserted when he rationally believed that Complainant would defame him. H. Therefore, this Court finds and does conclude that the actions of Respondent in threatening to file a defamation actions against Complainant are not so appalling or egregious as to warra nt a finding of condu ct prejudicial to the administration of justice. Respondent s actions have caused no negative impact on the image or perception of the legal profession nor has he engendered disrespect for the profession. Additionally, Respondent s actions were n ot crimin al. Bar Counsel took exception to Judge Noel s conclusion of law that Stolarz s conduct did not violate Rule 8.4(d), and further recommended a sanction of indefinite suspension with the right to reapply no earlier than thirty days. At oral argumen t, howeve r, Bar Cou nsel, noting that Stolarz, from personal funds, had paid off th e bank loa n to his client, ch anged his sanction recommendation to a public reprimand. Stolarz took exception to six of Judge Noel s finding s of fac t. Stolarz also excepted to Judge Noel s conclusion of law regarding violation of Rule 1.15(b). Based on his exceptions, Stolarz suggested that we dismiss these disciplin ary procee ding s in th eir en tirety. 5 II. A. Standard of Review This Court exercises original jurisdiction over attorney discipline proceedings. Attorney Griev. Comm n v. Blum, 373 Md. 275, 293, 818 A.2d 219, 230 (2003); Attorney Griev. Comm n v. Harris, 371 Md. 510, 539-40, 810 A.2d 457, 474-75 (2002). We conduct an independent review of the record, accepting the hearing judge s findings of fact unless clearly erroneous. Attorney Griev. Comm n v. Garfield, 369 Md. 85, 97, 797 A.2d 757, 763 (2002); Attorney Griev. Comm n v. Wallace, 368 Md. 277, 288, 793 A.2d 535, 542 (2002). We will not disturb the factual findings of the hearing judge if they are based on clear and convincing evidence. Attorney Griev. Comm n v. Monfried, 368 Md. 373, 388, 794 A.2d 92, 100 (2002). Our review of the hearing judge s conclusions of law is de novo. Attorney Griev. Comm n v. McLaughlin, 372 Md. 467, 493, 813 A.2d 1145, 1160 (2002); Attorney Griev. Comm n v. Dunietz, 368 Md. 419, 428, 795 A.2d 706, 711 (2002). Maryland Rule 16-757(b)4 requires the Commission to prove the averments of the complaint by clear and convincing evidence. Respondent must only establish an affirmative defense or a matter of mitigation or extenuation by a preponderance of the evidence. Md. Rule 16-757(b). Maryland Rule 16-759 requires this Court, when exceptions to the hearing 4 Maryland Rule 16-757(b) provides: The petitioner has the burden of proving the avermen ts of the petition by clear and convincing evidence. A respondent who asserts an affirmative defense or a matter of mitigation or extenuation has the burden of proving the defen se or m atter by a p repond erance of the e videnc e. 6 judge s findings are taken properly, to determine whether the findings of fact have been proven by the requisite standards of proof set out in Rule 16-757(b).5 The hearing judge as the trier of fact may elect to pick and choose which evidence to rely upon. Attorney Griev. Comm n v. Kemp, 303 Md. 664, 675, 496 A.2d 672, 677 (1985) (citation omitted). Deference to the hearing judge s factual findings is p aid by us, in part, because th e fact finde r is in the best pos ition to asse ss fir st hand a witn ess s cre dibility. Attorney Griev. Comm n v. Sheridan, 357 Md. 1, 17, 74 1 A.2d 1143 , 1152 (1999). B. Factual Exceptions We have reviewed the r ecord and conclude that Judge N oel s finding s of fact, however labeled, are su pported b y clear and co nvincing e vidence. T hus, we o verrule Stolarz s exceptions. Also, we note that four of his exceptions, even were they well taken, would not be ma terial to the issue of whether he violated Rule 1.15(b). The thrust of those 5 Maryland Rule 16-759(b) states: (1) Conc lusions of law . The Court of App eals shall review de novo the circuit court judge s conclusions of law. (2) Findings of fact. (A) If no exceptions are filed. If no exceptions are filed, the Court may treat the findings of fact as established for the purpose of determining appropriate sanctions, if an y. (B) If exceptions are filed. If exceptions are filed, the Court of Appeals shall determine whether the findings of fact have been proven by the requisite standard of proof set out in Rule 16-757(b). The Court may confine its review to the findings of fact challenged b y the exceptions. The Co urt shall give due regard to the opportunity of the hearing judge to assess the credibility of witnesses. 7 four of Stolarz s factual exceptions are that: (1) he did not p ersonally bene fit when the bank was not paid off from the settlement; (2) he took reasonable steps to persuade his client Kreller to repay the loan , (3) he wa s willing to negotiate w ith the bank in good faith; and (4) he was re morse ful. Such matters are more properly considered in mitigation of sanction if a violation is otherwise found to have occurred. Stolarz s remaining two factual exceptions complain of Judge Noel s alleged failure to find certain facts. First, Stolarz takes exce ption to the Circuit Court s failure to find, as requested by Respondent, that Commonwealth [the bank] threatened to file a complaint or grievance against Respondent falsely alleging that he had pe rsonally m isused tr ust fun ds. Second, Stolarz takes exception to the trial court s failure to find the Respondent s advice to Comm onwea lth that he would take remedial action against Comm onwea lth if it were to file a false accusation was not an action taken by Respondent with any improper intent, but rather reflected his indignation at the collection methods being utilized by Comm onwea lth and the false accusation that Respondent had engaged in intentional and unethical miscon duct by a llegedly m isusing trust fun ds. Stolarz s latter two exceptions are misplaced because Judge Noel embraced adequate ly these factual findings in the con clusions of law sectio n of his written decision. In conclud ing that Stola rz did not vio late Rule 8.4 (d), Judge N oel explain ed that Respondent testified that he wrote the letter dated May 2, 2002, warning Complainant that he would sue . . . for defamation as a response to a phone call from C omplainant s representative threatening to file a complaint that would allege that Stolarz was misusing escrow funds. That conversation was 8 not memorialized and Complainant s representative was not present at the hearing to testify about that communication. Furthermore, Stolarz maintains that he believes the Com plainant threa tened to brin g this action in an effort to collect his client s deb t, which is certainly not a legitimate or appropriate use of the grievance procedures of this state. C. Rule 1.15(b) Stolarz excepts to Judge Noel s legal conclusion that he violated Rule 1.15(b). He argues that his failure to p ay off the ba nk loan at th e time of se ttlement w as a com pletely innocent error that could happen in any attorney s practice. We do not accept the implication of Stolarz s argument that Rule 1.15 contains an innocent error safe harbor exception. This Court has explained on numerous occasions that with regard to Rule 1.15 an unintentional violation of this rule . . . is still a violation of the attorney s affirmative duties imposed by the rule. Sheridan, 357 Md. at 20, 741 A.2d at 1154 (quoting Glenn, 341 Md. at 472, 671 A .2d at 47 5). See also Attorney Griev. Comm n v. Adams, 349 Md. 86, 96, 706 A.2d 10 80, 1085 (1998 ). A lawyer sh ould hold settle men t fun ds w ith th e car e of a prof essio nal f iduc iary. Advance Fin. C o. v. Trs. o f the Clie nts Sec . Trust Fun d of the Bar of Maryland, 337 Md. 195, 210, 652 A.2d 660, 667 (1995) (a fiduciary ethical obligation to a non-clie nt is embodied in Rule 1.15). As the bank had an interest in the settlement proceeds, Rule 1.15(b) imposed on S tolarz ethical duties of notification, payment, and accounting to that creditor. The lawyer mus t recognize the creditor's inte rest in the settle men t fun ds in the la wyer 's posses sion. 9 Maryland permits plaintiffs to create valid assignments of the proceeds of personal injury claims. See Hernandez v . Suburban H osp. Ass n, 319 Md. 226, 235, 572 A.2d 144, 148 (1990). An assignment covering the proceeds of a case is an interest, even if the lawyer did not participate in its creation. In the present case, Stolarz expressly promised to abide by the assignment and, therefore, the contract between his client and the ba nk boun d him to act in consonance. As the assignment between the client and creditor gave the creditor an enforcea ble interest in the proceeds of the settlement, Stolarz's knowledge and signing of the agreement is sufficient to raise ethical duties to the creditor. The basis of such duties is the funda menta l duty of la wyers to deal ho nestly with third pa rties. See Rules 4.1 and 8.4. If the creditor's claim is a valid interest and the amount of that interest is undisputed, then the lawyer sho uld disperse directly to the creditor from the settlement proceeds. After the settlement check was issued to Stolarz, he admittedly failed promptly to notify the creditor bank that a settlement had been receive d. Stolarz, while paying other creditors on his client s behalf out of the settlement proceeds, admits to failing to make payment to the bank due to oversight. Although the oversight was innocent, Judge Noel found, by clear and convincing evidence, with which this Court agrees, that Sto larz, in failing to promp tly notify the bank of receipt of the settlement funds and failing to promptly deliver to the bank those fund s due it, violated Rule 1.15(b). 10 D. Rule 8.4(d) Bar Counsel excepts to the trial judge s failure to find a violation by Stolarz of Rule 8.4(d). It is Bar Counsel s position that Stolarz indicated to the bank that he would sue it for defamation as a threat intended to deter the filing of a complaint with the Attorney Grievance Commission of Maryland. Bar Counsel points out th at the Cou rt of Specia l Appeals , in Kerpelman v. Bricker, 23 Md. App. 628, 630, 329 A.2d 423, 425 (1974), held that the content of a com plaint filed w ith the Attorn ey Grievanc e Comm ission is abso lutely privileged. Stolarz testified that he warned the bank that he would sue for defamation as a response to a phone [message] from Complainant s representative threatening to file a complaint that would allege that Stolarz was misusing escrow funds. What words that literally were em ployed in the tele phone m essage fro m the ban k are not m emorialized in this record, except as characterized by Stolarz s testimony. The bank s representative did not attend the h earin g to testif y. As such , Judge N oel, in his factual findings and conclusions, relied on Stolarz s testimony, as he had the right to do, and found that Stolarz s threatened defama tion lawsuit w as based on his belief that the bank intended to assert that he had misused client escrow monies and his further belief, perhaps mistaken, that such an allegation included in a complaint to the Co mmission wa s actionable if false. Judge N oel, however, did not consider Stolarz s conduct as necessarily aimed as a preemptiv e strike mere ly to forestall 11 a grievance complaint as such from being filed. This finding is not clearly erroneous based on the limited record in this c ase and w e therefore decline to o verrule it. 6 III. Sanction Consideration of the appropriate sanction is guided by our interest in protecting the public and the public s confidence in the legal profession. Attorney Griev. Comm n v. Powell, 369 Md. 462, 474, 800 A.2d 782, 789 (2002). The purpose of these proceedings is not to punish the lawyer, but any sanction imposed should deter other lawyers from engaging in similar misconduct. Attorney Griev. Comm n v. Mooney, 359 Md. 56, 96, 753 A.2d 17, 38 (2000). The public is protected when sanctions are imposed that are commensurate with the nature and gravity of the violations and the intent with which they were committed. Attorney Griev. Comm n v. Awuah, 346 Md. 420, 435, 697 A.2d 446, 454 (1997). In the majority of cases nationally, it appears that sanctions are imposed on lawyers for violations of Rule 1 .15 or its kin. See Charle s M. C ork III, A Lawyer s Ethical Obligations When the Client s C reditors Cla im a Share of the Tort Settlement Proceeds, 39 TORT TRIAL & INS. PRAC. L.J. 121, 134 (2003) (finding that since 199 6 sanctions have bee n increasing ly imposed upon lawyers for violations of Rule 1.15). This Court has issued sanc tions for R ule 1.15 violations ranging from a public reprimand to various forms of suspension when the 6 This should not be read as an endorsement of attorneys threatening reprisals against persons with the intent to dissuade them from filing complaints with the Attorney Grievance Commission. 12 lawyer engaged in conduct that did not amount to an intentional misappropriation or dishonesty. See Atto rney G riev. Co mm n v. Seiden, 373 Md. 409, 818 A.2d 1108 (2003) (imposing thirty days suspension for violations of Rules 1.1, 1.15(a), 8.4(a), and 8.4(d) wh ere the attorney had n o previou s disciplinary pro blems, w as remorse ful, and the c onduct dire ctly resulted from representing a p articularly difficu lt client); Attorney G riev. Com m'n v. M cClain, 373 Md. 196, 817 A.2d 218 (2003) (imposing thirty days suspension for violations of Rules 1.15(a) and § 16 -606 of th e Busines s Occup ations and P rofessions Article of the Maryland Code where the attorney cor rected his vio lation, subseq uently took a course in escrow account manage ment, and had no previous disciplinary proceedin gs); Attorney Griev. Comm'n v. DiCicco, 369 Md. 662, 688, 802 A.2d 1014, 1028 (2002) (imposing an indefinite suspension with the right to rea pply in ninety days fo r violations of Rules 1.15(a), 1.15(c) and 8.4(a) where, despite of the attorney's negligent and slopp y administration of trust accounts, there was an absence of fraudulent in tent, the attorne y had no pre vious discip linary problem s in thirty-eight years of practice, and the attorney's clients did not suffer a f inancial loss); Attorney Griev. Comm'n v. Adams, 349 Md. 86, 98-99, 706 A.2d 1080, 1086 (1998) (imposing an indefinite suspension with the right to reapply in thirty days for violations of Rule 1.15 and Maryland Rule 16-604 where the lawyer's conduct was a negligent, unintentional, misappropriation, and w here the violation was the attorney's first, the client was a friend of the attorney, the attorney had good intentions, and the m onies we re paid to the Comptroller); Attorney Griev. Comm'n v. McIntire, 286 Md . 87, 96, 405 A.2d 273, 278 (1979) (issuing a 13 public reprimand for violations stemming from a fee dispute between the lawyer and his client where there was not intentional wrongdoing, deceit or dishonesty). The present case, we think, plum bs the dep th of the sha llow end o f the sanctio n pool. The appropriate severity of the sanction depends upon the facts and circumstances of the case, taking account of any particular aggrav ating or mitigatin g facto rs. Attorney Griev. Comm n v. Myers, 333 Md. 440, 447, 635 A.2d 1315, 1318 (1994). In Glenn, we set forth a helpful framework for sanction analysis: Along with our own cases as precedent in determining the appropriate sanction, it is helpf ul for u s to refe r to the A BA S tandard s. These standards create an organizational framework that calls for a consideration of four questions: (1) What is the nature of the ethical duty violated? (2) What was the lawyer's mental state? (3) What was the extent of the actual or po tential injury caus ed by the la wyer 's miscond uct? (4) Are there any aggravating or mitigating circumstances? Glenn, 341 Md. at 484, 671 A.2d at 480 (citing Standard 3.0 of th e ABA Standards for Imposing Lawye r Sanct ions, reprinted in Selected Statutes, Rules and Standards on the Legal Profession 301 (1987)). We have discussed already the nature of Stolarz's ethical violation. He failed to notify the third-party assignee/creditor of his client of the receipt of settlement funds and failed timely to pay the ban k's assignme nt in violatio n of R ule 1.15 (b). Our next step is to consider the state of mind of Stolarz at the time of the violation. In Glenn, we explained: The AB A sta ndards e stablish g radu ated leve ls of culp abili ty, with the most culpable mental state that of intent, the nex t most culpa ble menta l state that of 14 knowledge, and the least culpable m ental state that o f negligen ce. Intent is defined as the conscious objective or purpose to accomplish a particular result. Knowledge is defined as the conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result. Negligence is def ined as the failure of a lawyer to he ed a substa ntial risk that circumstances exist or that a result will follow, which failure is a deviation from the s tandard of care that a reason able law yer wou ld exerc ise in the situation . Glenn, 341 Md. at 485, 671 A.2d at 481. At the settlement, Stolarz made disbursements to certain medical providers on his client s behalf, deducted his fee, and then released all remaining funds to his client. At the disciplinary hearing, Stolarz admitted he neglected to list the loan fro m the ban k as one o f his client s obligations a nd made no paymen t to it. There is no evidence to suggest Stolarz acted intentionally. Stolar z s miscon duct in this reg ard was s imply negligen t. We next cons ider the exte nt of actua l or poten tial in jury cause d by S tolar z's miscond uct. See Glenn, 341 Md. at 488, 671 A.2d at 483. Stolarz be came an intermed iary between a lender and a fina ncially irresponsib le client wh o know ingly failed to ho nor his obligation to repay the loan. Stolarz has repaid his client s $300.00 principal loan, and interest, in the amount of $1,095.87. Lastly, we consider a non-exhaustive list of mitigating factors that include: Absence of a prior disciplinary record; absence of a dishonest or selfish motive; personal or emotional problems; timely good faith efforts to make restitution or to rectify conse quences of miscon duct; full and free d isclosure to disciplinary board or c ooperative attitude tow ards proce edings; interim rehabilitation; imposition of other penalties or sa nctio ns; re morse; and finall y, remoteness of prior offenses. Glenn, 341 Md. at 488-89, 671 A.2d at 483. 15 Stolarz, a member of the Bar of this State since 1979, has no prior disciplinary record. Stolarz cooperated with Bar Counsel during the investigation, providing full and free disclosure. Moreover, Stolarz did not benefit personally. Stolarz made a mistake when reviewing his file prior to disbursing his client s settlement funds. This mistake did not enure in any measure to Stolarz s b enefit. Stolarz advised h is client to read o ver the settlement sheet. His client, who surely knew of the loan obligation, made no mention of the fact that the bank loan was not listed on the settlement sheet. When the oversight was made known, Stolarz took steps to attempt to persuade his client to repay the loan. In addition, Stolarz initially evinced a willingness to negotiate in good faith with the bank regarding a compromise payment by him on the loan. Stolarz ultim ately paid his clien t s debt in full w ith $1.095.87 of his own funds. Finally, Stolarz expressed genuine regret and remorse over the unfortunate chain of events. While we ordinarily would not hesitate to impose a sanction for a violation of 1.15(b), considering the circumstances in this particular case, we wonder whether the public interest might be protecte d adequa tely if the Commission and Stolarz were given a second opportunity, in light of the proceedings as they have developed to this point, to con sider a disposition under Ru le 16-735(b). 7 7 Rule 16-735 (b) Dismis sal or other term ination of c omplaint. accompanied by warning. T ermination (1) If Bar Counsel concludes that the attorney may have engaged in (contin ued...) 16 Had this case been recognized for what it is at its inception as the Court now sees it (an understan dably slippery assum ption), it might have been deem ed appro priate to add ress it with a warning from the C ommission. Un der Rule 16-759 (c),8 we remand this case to the Commission for it to propose dismissal of the case, but with a warning to Stolarz that the conduct found here to have violated Rule 1.15(b) not be repeated. We note that under R ule 7 (...continued) some profession al miscond uct, that the conduct was not su fficiently serious to warrant discipline, but that a specific warning to the attorney wou ld be helpful to ensure that the conduct is not repeated, Bar Counsel may recommend that the termination be accompanied by a warning against repetition. If satisfied with the recommendation, the Commission shall procee d in accord ance with subsection (b) (2) of this Rule and, if the warning is not rejected, accompany the termination of the disciplinary or reme dial pro ceedin g with a warnin g. A warning does not constitute discipline, but the complainant shall be notified that termination of the proceeding was accompanied by a warning against repetition of the condu ct. (2) At least 30 days before a w arning is issue d, the Com mission sh all mail to the attorney a notice that states the date on w hich it intends to issue the warning and the content of the warning. No later than five days before the intended date of issuance of the warning, the attorney may reject the warning by filing a written rejection with the Commission. If the warning is not rejected, the Commission shall issue it on or after the date stated in the initial notice to the attorney. If the warning is rejected, it shall not be issued, and Bar Counsel may take any other action permitted under this Chapter. Neither the fact that a warning was proposed or rejected n or the conte nts of a warning that was n ot issued may be a dmitted into evid ence. 8 Rule 16-759(c) Disposition. The Court of Appeals may order (1) disbarment, (2) suspension, (3) reprimand, (4) inactive status, (5) dismissal of the disciplinary or remedial action, o r (6) a rem and fo r furthe r proce edings . 17 16-735(b) a warnin g does no t constitute disc ipline, but is simply an admonition against repetition of the condu ct.9 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 RULE 16-761, FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION. 9 Of course, as allowed by Rule 16-735(b)(2), Stolarz may reject the proposed warning. If the warning is rejected, then we shall consider the sanction appropriate to the case. 18

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