Attorney Grievance v. James

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Attorney Grievance Commission v. James, Misc. D ocket, A G No . 1, Sept. T erm 20 04. [M aryland Rules o f Prof essiona l Cond uct 1.1 ( Com petenc e), 1.3 (D iligence ), 1.4 (Communication), 1.15 (Safekeepin g Property), 8.1(b) (Bar admission and disciplinary matters), 8.4(a), (c), and (d) (Misconduct); Maryland Rules 16-604 (Trust Account Deposits), 16-607 (Comming ling of Funds), 16-60 9 (Prohibited Transac tions); Maryland Code (2000, 2004 Repl. Vol.), Sections 10-304(a) (General Requirement), 10-306 (Misuse of trust money), and 10-30 7 (Disc iplinary A ction); h eld: Re spond ent viola ted M RPC 1.1 by failing to provide legal knowledge, skill, thoroughness and preparation necessary for representation. Respondent violated Maryland Rule 16-607 and Sections 10-306 and 10-307 of the Business Occupations and Professions Article of the Maryland Code by using the attorney trust account for personal expenses. Respondent violated MRPC 1.15(d) and 8.4(a), (c) and (d) and Maryland Rules 16-604 and 16-609 and Sections 10-304 and 10-306 of the Business Occupations Article when he failed to depo sit trust m onies. R espon dent vio lated M RPC 1.3 and 1.4 requiring diligent representation and communication with clients. Respondent violated MRP C 8.1 w hen he fa iled to respond to communications from Bar Counsel. For these v iolation s, Resp onden t shall be disbarre d.] IN THE COURT OF APPEALS OF MARYLAND Misc. D ocket A G No . 1 September Term, 2004 __________________________________ ATTORNEY GRIEVANCE COMMISSION OF MARYLAND V. CHAR LES M . JAMES , III __________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Battaglia, J. Filed: March 16, 2005 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 remedial action against respondent, Charles M. James, III, Esquire, on March 15, 2004, afte r revoking a Conditional Diversion Agreement2 ( CDA ) with respondent. The Petition alleged that James, who was admitted to the Bar of this Court on January 4, 1993, violated seve ral of the Maryland Ru les of Pro fess iona l Conduct ( M RPC ), sp ecif ically, 1 Maryland Rule 16-751(a) provides: Commencement of disciplinary or remedial action. (1) Upon approva l or direction of [the Attorney Grievance] Commission, Bar Counsel shall file a Petitio n for D isciplina ry or Rem edial A ction in t he Co urt of A ppeals . 2 Maryland R ule 16-73 6 provide s in part: (a) When A ppropriate. Upon completing an investigation, Bar Counsel may agre e to a Conditional Diversion Agreement if Bar Co unsel con cludes that: (1) the attorney committed professional misconduct or is incapacitated; (2) the professional misconduct or incapacity was not the result of any wilful or dishonest conduct and did not involve conduct that could be the basis for an immediate Petition for Disciplinary or Reme dial Action pursuant to Rules 16- 771, 16773, or 16-774; (3) the cause o r basis of the profession al miscond uct or incapacity is subject to remediation or resolution through alternative progra ms or m echan isms, including (A ) medical, psychologica l, or other professional treatment, counseling, or assistance, (B) appropriate educational courses or programs, (C) mentoring or monitoring services, or (D) dispute resolution programs; and (4) the p ublic inte rest a nd th e we lfare of th e atto rney's clients and prospective clients will not be harmed if, instead of the matter proceeding immediately with a disciplinary or remedial proceeding, the attorney agrees to a nd comp lies with specific measures that, if pursued, will remedy the im mediate problem a nd likely preve nt any recurren ce of it. 1.1(Competen ce),3 1.3 (Diligence), 4 1.4 (Commu nication),5 1.15 (Safekee ping Property), 6 8.1 3 Rule 1.1 provides: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroug hness and prepara tion reasonably necessary for the representation. 4 Rule 1.3 provides: A lawyer shall act with reasonab le diligence a nd prom ptness in rep resenting a c lient. 5 Rule 1.4 provides: (a) A lawyer shall keep a client reasonably informed about the status of a matter a nd prom ptly comply with reasonable requests for information. (b) A lawyer shall explain a matter to the extent reasonab ly necessary to permit the client to make informed decisions regarding the representation. 6 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 lawyer's own property. Funds shall be kept in a separate account m aintained p ursuant to T itle 16, Chapter 600 of the Maryland Rules. Other property shall be identified as such an d approp riately safeguard ed. Com plete 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 ha s an interest, a law yer shall promp tly notify the client or third person. Ex cept as stated in this Rule or otherwise permitted by law or by agreement with th e client, a lawyer shall prom ptly 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 prom ptly re nder a fu ll acc ounting rega rding suc h pro perty. 2 (b) (Bar admission and disciplinary matters),7 and 8.4(a), (c) and (d) (M isconduct). 8 Violations of Maryland Rules 16-604 (Trust A ccount Depo sits),9 16-607 (Commingling of 7 Rule 8.1 (b) provides: An applicant for admission or reinstatement to the bar, or a lawyer in connection with a bar admission application or in connectio n with a dis ciplinary matter, sh all not: *** (b) fail to disclose a fact necessary to corr ect a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by Rule 1.6. 8 Rule 8.4, in r elevant par t, provides tha t: 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; *** (c) engage in conduct involving d ishonesty, fraud , deceit or misrepresentation; (d) engage in conduct that is prejudicial to the admin istration o f justice . . . . 9 Rule 16-604 provides: Except as otherwise permitted b y rule or other law , all funds, including cash received and accepted by an attorney or law firm in this State from a client or third person to be delivered in whole or in part to a client or third person, unless received as payment of fees owed the attorney by the client or in reimbursement for expenses properly advanced on behalf of the client, shall be deposited in an attorn ey trust account in an approved financial institution. This Rule does not apply to an instrument received b y an attorney that is m ade payable s olely to a client or third person and is transmitted directly to the client (contin ued...) 3 Funds), 10 16-609 (Prohibited transa ctions),11 and Maryland Code (2000, 2004 Repl. V ol.), 9 (...continued) or third p erson. 10 Rule 16-607 provides: a. General Prohibition. An attorney or law firm may deposit in an attorney trust account only those funds required to be depos ited in that account by Rule 16-604 or permitted to be depos ited by sec tion b o f this R ule. b. Excep tions. 1. An attorney or law firm shall either (A) deposit into an attorney trust account funds to pay any fees, service charges, or minimum balance required by the financial institution to open or maintain the account, including those fees that cannot be charged against interest due to the Maryland Legal Services Corpora tion Fund pursuant to Rule 16-610 b 1(D), or (B) enter into an agreement with the financial institution to ha ve an y fees or charges deducted from an operating account m aintained by the attorney or law firm. The attorney or law firm may deposit into an attorney trust account any funds expected to be advanced on behalf of a client and expec ted to be reimbu rsed to th e attorne y by the clien t. 2. An attorney or law firm may deposit into an attorney trust account f unds belo nging in p art to a client an d in part presently or potentially to the attorney or law firm. The portion belonging to the attorney or law firm shall be withdrawn promptly when the attorney or law firm becomes entitled to the funds, but any portion disputed by the client shall remain in the accou nt until th e dispu te is reso lved. 3. Funds of a client or beneficial owner may be pooled and commin gled in an a ttorney trust acco unt with the funds he ld for oth er clients or bene ficial ow ners. 11 Maryland Rule 16-609 provides: An attorney or law firm may not borrow or pledge any funds required by these Rules to be deposited in an attorney trust account, obtain any remuneration from the financial institution for depositing any funds in the account, or use any funds for any unauthorized purpose. An instrument drawn on an attorney trust (contin ued...) 4 Sections 10-304 (a), 12 10-306,13 and 10-30714 of the Business Occupations and Professions Article. In accordance w ith Maryland Rules 16 -752(a) and 16-75 7(c), 15 we referred the 11 (...continued) account may not be d rawn payable to cash o r to bearer. 12 Section 10-304 (a) of the Business Occupations and Professions Article provides: General Requirem ent. Except as provided in subsection (b) of this section, a lawyer expeditiously shall deposit trust money into a n attorney trust ac count. 13 Section 10-306 of the Business Occupations and Professions Article provides: Misuse of trust money. A lawyer may not use trust money for any purpose other than the purpose for which the trust money is entrusted to the lawyer. 14 Section 10-307 of the Business Occupations and Professions Article provides: Disciplinary action. A lawyer who willfully violates any provision of this Part I of this subtitle, except for the requirement that a lawyer deposit trust moneys in an attorney trust account for charitable purposes under § 10-303 of this subtitle, is subject to disciplinary proceedings as the Maryland Rules provide. 15 Maryland Rule 16-752(a) states: (a) Order. Upon the filing of a Petition for Disciplinary or Remedial A ction, the Court of A ppeals 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 exte nt of discovery and setting dates for the completion of (contin ued...) 5 petition to Judge Dwight D. Jackson of the Circuit Court for Princ e George s County for an evidentiary hearing and to make findings of fact and conclusions of law. On September 20, 2004, Judge Jackson held a hearing and on November 8, 2004, issued Findings of Fact and Conclusions of Law , in which h e found, b y clear and co nvincing e vidence, tha t James violated MRPC Rules 1.1, 1.3, 1.4, 1.15(a), 8.1(b) and 8.4(a) (c) and (d), Maryland Rules 16604, 16-607, and 16-609, and Sections 10-304 and 10-306 of the Business Occupations and Profe ssions A rticle. Petitioner recommends disbarment and took no substantive exceptions to the Findings of Fact and Con clusions of Law , merely asking that the $8.39 am ount regarding escrow check number 1074 be amended to $10.00 to reflect the greater amount that Respondent admitted he gave to Ms. Smith. We will correct the findings to reflect this change. On December 7, 2004, the same day Petitioner submitted the one exception and recommendation for sanction, Respondent filed several exceptions, one of which was the same as that filed by Bar Counsel to whic h we a lready ha ve acc eded. With respect to another exception, Respondent requested that the case be remanded for another evidentiary hearing so that the Circuit Court could consider various issues, a request to which we do not accede. 15 (...continued) 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 . . . . 6 More over, w e conc lude tha t the app ropriate sanctio n is disb armen t. Judge Jackson s Findings of Fact and Conclusions of Law follow: BACKGROUND On December 7, 2001, a complain t was filed against Charles M. James, III for allegedly violating several rules of professional conduct. Upon consideration of the complaint, Mr. James, hereinafter called the Resp onden t, and the Attorne y Grievance Comm ission of Maryland via Ba r Counse l, hereinafter called th e Petitio ner, entered into a Conditional Diversion Agreem ent, pursuant to Maryland Rule 16-736, on November 18, 2002. On February 20, 2004, the Petitioner, having found Respondent to be in material default, revoked the A greement. By Order d ated March 1 7, 2004, the Court of Appea ls transmitted this matter to this Court to hear the charges contained in the pleadings in accorda nce with M aryland Rule 16-75 7, et seq. On March 22, 2004, the Petitioner filed a Petition for Disciplinary or Remedial Action against the Respondent. The matter came for hearing before this Court on Septem ber 20, 2 004. At the outset of the hearing, Petitioner pursued its Motion for Sanction, alleging that on May 29, 20 04, the Re sponden t was perso nally served with Petitioner s Interrogatories, Requests for Production of Documents and Reques t for Adm ission of Fa cts and G enuinene ss of Do cuments but failed to submit responses thereto by June 29, 2004, which was 30 days after service 7 and 15 days after Respondent filed his Answer on June 14, 2004. According to this Court s scheduling order dated July 26, 2004, all discovery was to be completed by Augus t 11, 2004. T he Resp ondent su bmitted A nswers to Interrogatories, Requests for Production of Documents and Requests for Admission of Facts and Genuineness of Documents on August 31, 2004. The Court found Respondent s responses to discovery to be untimely and nonresponsive. The Court, therefore, granted Petitioner s Motion for Sanctions and foreclosed the Respondent from putting on any evidence that was requested in the Petitioner s Interrogatories and Requests for Production of Documents. As a result, Petitioner s Requests for Admission of Facts and Genuineness of Doc uments were admitted, pursuant to Rule 2-4 24(b), due to the Re spond ent s fa ilure to re spond within 30 days. FINDINGS OF FACT SUPPORTING COMPLAINT NO. 2002 -175-17-9 Petitioner alleges that the Respondent violated Maryland Rule of Professional Conduct 1.1, 1.15(a), 8.4(a)(d), Rules 16-607 and 16-609 and Business Occupations and Professions Artic le §§ 10-3 06 and 1 0-307 by his misappropriation and commingling of trust money. The Court makes the following Findings o f Fact, find ing that they are supported by clear and convincin g evidenc e: On November 18, 2002, Respondent and Petitioner entered into a 8 Conditional Diversion Agreement; however, on February 20, 2004 that Agreement was revoked. In February of 2001, the Respondent handled a claim for Sheila Smith. On or about February 20, 2001, the proceeds of an arbitration award in the amount of $7,500.00 were forwarded to the Respondent on behalf of Ms. Smith. The Respondent deposited Ms. Smith's $7,500.00 award into his attorney escrow account held at Chevy Chase Bank. On or about May 17, 2001, the Respondent wrote esc row Ch eck No . 1074 to Ms. Smith in the amount of $1,222.47,16 which was [$10.00] more than M s. Smith w as entitle d to. The Respondent's escrow Check No. 1074 caused an overdraft o n his escrow accou nt in the a moun t of [$1 0.00]. T hereafter, Chevy Chase bank assessed a $30.00 non-sufficient funds charge on the Respondent's escrow account. On June 18, 2001, the Respondent's escrow account had a negative running balance of $38.39. On June 19, 2 001, the R esponde nt deposited $8,000.00 into his escrow account on behalf of a perso nal injury client, Catherine A. Davis. When Respondent deposited Ms. Davis $8,000.00 into his escrow account, h is 16 According to the Attorney Trust Account Analyzer Transaction Database sheet, the Respondent is shown having a running balance of $1,214.08 on June 14, 2001, which includes interest of .63 cents earned and po sted on that sam e date. No other transaction w ere made prior to Check No. 1074, except for a fee of $30.00 for insufficient funds. 9 running balance fell to $7,961.61. The Respon dent was to maintain in escrow Ms. Davis s net proceeds of $1,774.75; however, he fell below that amount on July 18, 2001, August 3, 2001 and August 6, 2001. Three of the Responden t s Chevy Chase escrow check s were presented to the bank o n April 22 , 2002. All three ch ecks ca used an overdr aft in a c ombin ed total a moun t of $70 . In January of 2000, the Respondent started using his attorney escrow account for personal and business matters. Escrow Check No. 1063, dated January 10, 2000, w as writte n to Dir ectv, a p ersona l expen se. The Respondent testified that during 1999 he and his wife, who is also an attorney, had several discussions about dep ositing client ch ecks into the ir personal account and that based on their discussions, the Respondent stopped using the personal account and started using his escrow account for business and personal matters. CONCLUSIONS OF LAW FOR COMPLAINT NO. 2002 -175-17-9 The Court find s that the Re sponden t violated all the Rules of Professional Conduct charg ed by the Petitioner in the Petition for D isciplinary or Remedial Action. The Respondent mishandled Ms. Davis $8,000.00 settlement in violation of Rule 1.1 by not maintaining intact the $8,000.00 10 when he deposited the money into his escrow account. 17 When Ms. Dav is funds were deposited into the escrow account the Respondent's account balance fell to $7,961.61 due to having a negative balance of $38.39. Further the Respondent failed to maintain intact Ms. Davis net proceeds of $1,774.75. On three different occasions the escrow account balance fell below the $1,774.75 amount due to Ms. Davis. The Court also finds that the Respondent violated Maryland Rule of Professional Conduct 1.15(a), Maryland Rule 16-609 and Business Occupations and Professions Article § 10-306 by not maintaining Ms. Davis $8,000.00 settlement in the escrow account when it was deposited and later by not maintaining intact Ms. Davis net proceeds of $1,774.75. The Respondent's escrow account fell below $1,774.75 on July 18, 2001, August 1, 2001 and August 6, 2001. The Respondent failed to keep Ms. Davis proceeds of $1,775.75 intact until she cashed her settlement check on August 10, 2001. Further, th ree escrow checks w ere presen ted to the ba nk on A pril 22, 2002, and all three checks caused an overdraft in a combined total of $70.00. The Court further finds that Respondent has been using his escrow 17 Rule 1.1 states that A lawyer shall provide co mpetent re presentation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reason ably nece ssary for th e repres entation . 11 account for personal and business ma tters since January 10, 2000 in violation of Maryland Rule of Professional Conduct 1.15(a) and Rule 16-607. The Respondent s mishandling of his escrow account a nd his failure to keep Ms. Davis monies intact until disbursed is prejudicial to the administration of justice in violation of Rule 8.4(d). FINDINGS OF FACT SUPPORTING COMPLAINT NO. 2004 -101-17-9 In the complaint of Fazlur R. Kazim, Petitioner alleges that the Respondent violated Rules 1.1, 1.3, 1.4, 1.15(a), 8.1(b) and 8.4(a)(c)(d) of the Maryland Rules of Professional Conduct, Maryland Rule 16-604 and 16-609 and Business Occ upations an d Profess ions Article § § 10-304 and 10-3 06 in connection with his representation of Mr. Kazim. The Court makes the following Findings of Fact, finding that they are supported by clear and convincin g evidenc e: In Decem ber of 20 02, Mr. K azim retaine d the Resp ondent to investigate an d prosecu te a civil action against attorney Clark U. Flecking er, II for alleged damag es resulting from an aff air he had with M r. Kazim' s wife, which led to a divorce. At the initial meeting with the R esponde nt, Mr. Ka zim signed a retainer agreement and gave the Respondent a $1,500 check representing a $1,000 non- refundable engagement fee and $500 retainer and/or investigative fee. Upon receipt of Mr. Ka zim's $1,500 check, the 12 Respondent cashed the check and made tw o cash deposits into his ope rating account totaling $1,476.30. The Respondent never deposited Mr. Kaz im's $500 into the escrow account. Throughout the representation the Respondent failed to comm unicate with Mr. Kazim. M r. Kazim sent the Respondent five (5) e-mails and called the Respondent numerous times to no avail. The Respondent never responded to Mr. Kazim's e-mails and telephone calls. The Respo ndent never sent M r. Kazim any written communications throughout the representation. Marc O. Fielder, B ar Coun sel Investigato r, interviewed the Respon dent, who stated that M r. Kazim h ad retained him because he suffered from a physical disability, which was rooted in the emotional distress he suffered while going through his d ivorce. The Resp ondent informed Mr. Fiedler that he was looking at several causes of action to pursue on behalf of Mr. Kazim including intentional interference of the ma rital contract, intentional infliction of emotional distress, possible negligence and adultery. Orig inall y, the Respondent considered filing a cause of action against M r. Fleckinger and Mr. Grozbean, who had represented Mr. Kazim' s wife in the divorce proceeding. The Respon dent, however, determ ined early on that there was no cause of action against Mr. Grozbean. The Responden t stated to Mr. Fiedler that he was proceeding against Mr. Fleckinger because Mr. Fleckinger 13 had had an affair with Mr. Kazim' s wife. The Respondent informed Mr. Fiedler that he had not been terminated from the representation and was waiting for additional medic al recor ds from Mr. K azim. Mr. Kazim testified that the Respondent never requested additional medical records than what was initially pro vided. Throughout the representation the Respondent never advised Mr. Kazim that he did not have a cau se of action against M r. Fleckinger. Further, the Respondent never advised Mr. Kazim that nothing further would be done on his matter unless additional medical records were provided. By letter dated July 9, 2003, Petition er requested the Respo ndent to submit a written response to Mr. Kazim's complaint. Although the Respondent received Petitioner s letter of July 9, 2003, he did not respon d to that letter. Petitioner sent the Re sponden t a second letter dated July 30, 2003 by certified mail, return receipt requested, requesting a written response to Mr. Kazim s complaint within ten days. Although the Responden t received Petitioner s second letter of July 30, 2 003, the R esponde nt did not respond within ten days. Petitioner sent the Respondent a third letter dated September 11, 2003 by certified mail, return receipt requested, requesting a w ritten response to Mr. Kazim s complaint within seven days. Although the Respondent received Petitioner's third letter of September 11, 2003 , the Respo ndent did not respond 14 within seven days. Thereafter, the Petitione r sent the Re sponden t a fourth letter dated September 24, 2003 by certified mail, return receipt requested, requesting a written response to Mr. Kazim s complaint within seven days. Although the Responde nt received Petitioner s fourth and final letter dated September 24, 2003, the Respondent did not respond within seven days. The Respondent never submitted a written response to Petitioner s letters. CONCLUSIONS OF LAW FOR COMPLAINT NO. 2004 -101-17-9 The Court finds that the Respondent violated all the Rules of Professional Conduct alleged by the Petitioner. Respon dent incom petently represented Mr. Kazim in violation of Rule 1.1 by not exhibiting the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. The Respondent claimed he was pursuing a cause of action against Mr. Fleckinger for having an affair with Mr. Kazim s ex -wife. In Maryland, it h as long be en recogn ized that [a]t comm on law , [an] action for criminal conversation provided different benefits to and imposed different burdens upon men and women. Only a man could sue or be sued for criminal conversation. These facts remain unchanged under the common law as it exists in Maryland toda y. A man has a cause of action for criminal conversation, but a w oman does n ot. Moreover, a man who engages in an act of sexual intercourse with another man's wife is civilly liable for 15 damages, but a woman who engages in a similar activity with anoth er wom an's husban d is not. Thus, Maryland's law provides different benefits for and imposes different burdens upo n its citizens based sole ly upon their sex . Such a res ult violates the [Equal Rights Amendment]. Any previous implicit approval by this Court of the action for criminal conversation is eradicated by the existence of the [Eq ual Rights Am endment]. The common law cause of action for criminal conversation is a vestige of the past. It cannot be reconciled with our commitment to equality of the sexes. We now hold that in Maryland the cause of action for criminal conversation is uncon stitutiona l and is n o longe r viable. Klein v. Anse ll, 287 Md. 585, 592-593, 414 A.2d 929 (1980); see also Doe v. Doe, 358 Md. 113,747 A.2d 617 (2000) (Restating that criminal conversation had be en abo lished). Therefore, there was no cause of action against Mr. Fleckinger. If the Respondent had done the minimal amount of research he would have discovered that t here could no t hav e bee n any cause of action for criminal conversation and would n ot have proceede d with the case. Thu s, the Court finds that Respondent s failure to act with reasonable diligence in notifying Mr. Kazim that there was no cause of action was in violation o f Maryland Rule of Professional Conduct 1.3. The Court also finds that the Respondent violated Rule 1.4 b y failing to com municate with M r. Kazim a nd keep h im informed of the status of the matter despite repeated efforts by Mr. Ka zim to 16 speak with him. The Court fu rther finds th at Respon dent s failure to deposit M r. Kazim s $500 retainer and investigative money into the escrow account violated Rule 1.15(a), 18 Rule 16-604 and 16-609 and Business Occupations and Profession s Article §§ 10-304 and 10-306.19 The Respondent s taking of Mr. Kazim s $500 retainer and/or investigative fee on December 10, 2002 violated Maryland Rule 8.4(c)20 by dishonestly taking trust monies that had not been earned. Hence, the Court finds that Respondent s lack of action in researching and advising Mr. Kazim that he did not have a cause of action against Mr. Fleckinger an d the Respond ent s failure to maintain Mr. K azim s $500 in trust until earned or until paid to the investigator was conduct prejudicial to the administration of justice in violation of Rule 8.4(d ). Moreover, the Court finds that Respondent violated Rule 8.1 by his wilful failure to respond to Petitioner s letters. 18 Rule 1.15 states that, A law yer shall hold prop erty of clients or th ird persons that is in a lawyer s possession in connection with a representation separate from the lawyer s own prop erty. 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 an d approp riately safegu arded . . . . 19 Section 10-306 states that A lawyer may not use trust money for any purpose other than the purpo se for w hich the trust mo ney is entr usted to the law yer. 20 Rule 8.4(c) states that It is professional misconduc t for a lawyer to . . . engage in condu ct involv ing dish onesty, fra ud, dec eit, or mis represe ntation . . . . 17 In summary, this Court finds that the Respondent violated Maryland Rules of Professional Conduct 1.1, 1.3, 1.4, 1.15(a), 8.1(b) and 8.4(a)(c)(d), Rules 16- 604, 16-607 and 16-609 and Business Occupations and Professions Article § § 10-3 04 and 10-30 6 in con nection with bo th com plaints. STANDARD OF REVIEW In proceedin gs involvin g attorney discip line, this Court h as original an d comple te jurisdiction. Attorney G rievance C omm n v. O Too le, 379 Md. 595, 604, 843 A.2d 50, 55 (2004). Clear and convin cing ev idence must su pport th e hearin g judge s findin gs. Attorney Grievance Comm n v. Gore , 380 M d. 455, 468, 845 A .2d 1204 , 1211 (20 04). As a re sult, we review the record independently but generally accept the hearing judge s findings of fact unless they are clearly erroneous. Attorney Grievance Comm n v. Potter, 380 Md. 128, 151, 844 A.2d 367, 380-381 (2004). Any conclusions of law made by the hearing judge, such as whether provisions of the M RPC w ere violated, are subject to our de n ovo rev iew. Attorney Grievan ce Com m n v. M cLaugh lin, 372 Md. 467 , 493, 813 A.2d 1 145, 1160 (200 2). DISCUSSION A. James E xceptions R egarding th e Finding s of Fact. We have reviewed the record and conclude that Judge Jackson s f indings of fact are supported by clear and convincing evidence. Mr. James urges remand to take additional evidence citing various exceptions, each 18 of which we will address, overruling each of them.21 Exception 1.b The Findings of Fact indicate that Respondent never sent Mr. Ka zim any written communications throughout the representation, without regard for the retainer agreement or billing statement introduced into evidence by Petition er. The evidence adduced at the hearing clearly and unequivocally establishes that no written communication was sent to Mr. Kazim throughout Mr. James s representation, including the retainer agreement, Petitioner s Ex hibit 7B, and billing statement, Petitioner s Exhibit 11. Mr. Kazim testified that he saw Exhibit 7B in Mr. James s office and that he signed it in the apartm ent to retain [Mr. James] and further the first time I m seeing this, this billing worksheet was at the hearing. Mr. Kazim further iterated on direct examination by Mr. James, I ve never received a statement from you, I ve never received anything from you. You have never sent me any correspondence in th e mail. I ve ne ver, ever see n this sheet but this moment here, Your Honor, that he has presented me this sheet. The lack of any written correspondence was corroborated by the testimony of Mr. Marc Fielder, the investigator with the Attorney Grievance C ommission, wh o reviewed M r. James s client file on Mr. Kazim and did not see a ny correspon dence to anyone in the file. Mr. James also told Mr. Fi elder tha t he pro vided th e billing stateme nt to M r. Kazim a t a meeting. This exception is denied. Exception 2. The Findings of Fact filed on 8 November 2004 notes that three checks 21 Mr. James s exceptions are identical to tho se that he filed in support o f a motion to alter or amend court decision that was denied by Judge Jackson on November 23, 2004. 19 were presented on 22 April 2002 causing an overdraft. The Findings of Fact however, do not note either that the account in question was closed prior to 22 April 2002 upon the advice of Marc Fielder (an investigator for and representative of the Office of Bar Counse l), that the checks were honored, or that all sums due concerned said checks were immediately satisfied by Respo ndent. No testimony or exhibit was introduced to reflect any of the alleged facts. Mr. James certainly has argued that the events occurred in this seque nce, but ad duced no evidence to support these additional finding s when h e had the o pportunity to do so. This ex ception is denied. Excep tion 3.a. The Findings of Fact reference a violation of Rule 1.1 indicating a lack of action in researching and a failure to exhibit the legal knowle dge, skill thoroughness and preparation reason ably necessary for the representation. There was no evidence presented by Petitioner as to the legal research conducted and Respondent was precluded from introducing evidence on the issue. Mr. Fielder testified only as to the causes of action initially considered by the D efend ant. Exception 3.b. The Findings of Fact indicate that no cause of action existed against Mr. Flecki nger bec ause reco very c ould not b e had for the ac t of a dultery. Although the act of adultery was not a viable action, the adulterous acts we re actionable under claims of negligence and intentional infliction of emotional distress. The lack of legal research testified to by Mr. Fielder, the AGC investigator, is belied by Mr. James s contention in his exceptions and during argument before this Court, that although the act of adultery was not a viable action, the adulte rous acts w ere actionab le under claims of n egligence a nd intention al infliction of em otional d istress. E ssen tially, James argues that viol ation of the crim inal statu te proh ibiting a dultery, M d. Code (2002, 2004 Cum. S upp.) § 10 -501 of th e Crimina l Law A rticle, is in and of itself a cause of action 20 somehow related to the n egligence a nd intentional infliction of emotional distress claims. Howeve r, even cursory research on Mr. James s part would have revealed that in Doe v. Doe, 358 Md. 113, 747 A.2d 617 (2000), Judge Eldridge, speaking for this Co urt, empha sized that, This Court decided twenty years ago that public policy would not allow tort damages based upon adultery. See Kline v. An sell , 287 Md. 585 , 414 A.2d 929 (1980). That dec ision should not be ignored simply because the plaintiff has employed different labels and named a different defendant. Id. at 127, 747 A.2d at 624. This exception is denied. B. James s Exceptions to Findings of Fact based upon discovery sanctions.22 Mr. James also has requested that the matter be remanded, as the defense was severely prejudiced by the inability to use, in either defense or rebuttal documents which were m ade av ailable to Petition er. On the morning of the hearing, Bar Cou nsel pressed preliminary motions regarding the untime liness of Mr. Ja mes s r espon ses to int erroga tories, requests for production of 22 The docket reflects that a schedu ling order, dated July 26, 2004, was entered setting the hearing date for September 20, 2004 and mandating completion of discovery by July 30, 2004, and the filing of all discovery dispute motions by August 13, 2004. On August 5, 2004, after having requested the responses by letter dated July 20, 2004, Petitioner filed a motion for sanctions to which the Respondent answered on August 31 , 2004. In this Motion, Petitioner detailed Respondent s failures to respond and requested that the facts and docume nts identified in the admissions be deemed admitted and genuine, respectively, and that Respon dent be p recluded f rom assertin g as a defe nse any infor mation sought in Petitioner s Interrogatories or Reque sts for Production of Docu ments, citing Maryland Rules 2-421, 2-422, 2-424 (b), 2-431, 2-432 (a), 2-433, 16-754 (a) (2), and 16-756. Respon dent, on August 31, 2004, the day of his deposition, responded to the motion for sanctions by asserting that he had hand-delivered respon ses and has be en dep osed, thereby re nderin g the M otion m oot. 21 docume nts and requ ests for admissions and genuineness of documents, all of which had been served upon Mr. James on May 29, 2004, but not responded to until August 31, 2004, just twenty days before the hearing. A t the hearing, Mr. Jame s conceded that his respo nses were untimely. In addition to untimeliness, B ar Coun sel asserted th at Mr. Jam es s Answ ers to Interrogatories were unresponsive: Interrogatory number 9 stated, If you intend to rely upon any docume nts or other tan gible things to support a position that you have taken or inte nd to take in the action, provide a brief descrip tion, by category an d location, of all such doc uments and other tangible things, and identify all persons having possession, custody, or control of them, to whic h Resp onden t replied , Please see response to request for production of documents. I may rely upon any document that has been reviewed by, received from or sent to the Petitioner. Interrogatory number 17 requested, For each of your clients named in the Petition for Disciplinary Action, state in detail the date you were retained, the nature of the legal work for wh ich you w ere retain ed, the actual work you performed and the date of termination (if any) for each employment, to which Mr. James responded, Please see request for produc tion of documents. Interrogatory number 18 asked, For each of your clients named in the Petition for D isciplinary Actio n, state the date of each communication you had with each client and the purpose and nature of each su ch com munic ation (e.g ., letter, telephone, etc.) and iden tify all docume nts which evince suc h comm unications, to which Mr. James responded, I cannot remember the date of each communication I had with each 22 named client and the purpose and nature of each such communication as specified in this interrog atory. Interrogatory number 19 queried, For each of your clients named in the Petition for Disciplinary Action, identify each person with whom you communicated on behalf of each client, the date, purpose and nature of each such communication and identify all documents which evince such communications, to which Mr. James replied, I cannot remember each person with whom I communicated on behalf of each named client as specified in this interrogatory. Further, in response to each and every request for production of documents, Mr. James had stated, Upon availability, inspection and related activities conce rning re levant a nd non -privileg ed ma terial, wi ll be pro vided a s reque sted. Mr. James asserts that he made client files available to Mr. Fielder, the investigator for Bar Counsel, and that he made boxes of his client files available to Bar Counsel on August 10, 2004, when the diversion agreement was signed, and on August 31, 2004, after the diversion agreeme nt was rev oked, w hen his deposition was taken; Bar Counsel did not review the unc ategoriz ed box es of d ocum ents. After lengthy argum ent presente d by both Pe titioner and R esponde nt, the hearing judge found that the responses were untimely and not responsive, agreed to deem admitted the admissions of facts and genuineness of documents, and foreclosed the Respondent from putting on documentary evidence relying upon that which had been requested in those requests. Respon dent, how ever, argue s that he was prejudiced by his inability to use docume nts made available to Petitioner on August 31st, specifically with respect to his 23 inability to refresh Mr. Kazim s recollection on cross-examination or for rebuttal, to show the frequency and specific dates of communication with Mr. Kazim, or to provide two cash deposits totaling $1,476.30. First, the responses to the discovery requests were u ntimely, even if they were considered to be responsive, having been filed on A ugust 31, 2 004, just tw enty days prior to the hearing . The hearing judge did not abuse his discretion in determining that the conceded untimeliness of all of the discovery responses was an essential factor in precluding Responden t s use of info rmation not time ly produc ed. See Wilson v. Crane, ___ Md. ___, ___ A.2d. __ (2005) ( Thus, an abuse of discretio n sho uld o nly be found in the e xtraordinary, exceptional or most egregious case ), citing Baltimore Transit Co . v. Mezzan otti, 227 Md. 8, 13-14, 174 A.2d 768, 771 (1961) (stating that trial judges, who are primarily called upon to administer [discovery] rules, are vested with a reasonable, sound discretion in applying them, w hich dis cretion w ill not be disturbe d in the a bsence of a sh owing of its ab use ). In addition, the hearing judge f ound that the answ ers to interrogatories and requ ests for production of documents were non-responsive, which also was not an abuse of his discretion. Maryland R ule 2-421 (b) provide s, in pertinent p art, that: The party to whom the interrogatories are directed shall serve a response within 30 days after service of the interrogatories or within 15 days after the date on which that party's initial pleading or motion is requir ed, wh icheve r is later. The response shall answer each interro gatory separately and fully in writing under oath, or shall state fully the grounds for refusal to answer 24 any interrogatory. The response shall set forth each interrogatory followed by its answer. An answer shall include all information available to the party directly or through agents, representatives, or attorn eys . . . . Rule 2-42 2 provide s, in pertinent p art, that: (c) Response. The part y to whom a request is d irected shall serve a written response within 30 days after service of the request or within 15 days after t he date o n wh ich th at pa rty's initial pleading or motion is required, w hichever is later. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is refused, in which event the reasons for refusal shall be stated. If the refusal relates to part of an item or category, the part shall be specified. (d) Production. A party wh o produc es docum ents for insp ection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request. Neither Rule was satisfied by Respondent in this case. At argument Respondent asserted that he had responded adequately to the interrogatories and the request for production of docume nts because he had proffered interrogatory answ ers on August 31, 2004, twenty da ys before the hearing. Those answers, however, were w oefully inadeq uate in almo st all respects, but particularly when in response to Interrogatory number 9. Compounding this non-responsiveness was the fact that, as Respondent conceded at argumen t, his response to the Request for Production of Documents was essentially that inspection and related activities will be permitted as requested unless the req uest is re fused . Mr. James argues that he was being responsive by providing boxes of uncategorized docume nts three months after service of the Requests, on the day of his depositi on, which 25 had been sep arately noted, and twenty days before the hearing. Under these circumstances, we do not find that Judge Jackson abused his discretion in determining that M r. James was unresponsive to disco very requ ests and in impo sing the specifi c sanctio n. The sanction imposed by Judge Jackson clearly was proportionate to the discovery abuse by Mr. James. Md. Rule 2-433 (a); see, e.g., People v. Camp, 815 N.E.2d 980, 984 (Ill. App. 2004) (remanding the case to the trial court because sanction was disproportionate to th e discovery violation); Usowski v. Jacobson, 836 A.2d 1167, 1174 (Conn. 2003) (stating that the sanction must b e propo rtional to violatio n and is review ed und er an ab use of discretio n stand ard). Even were we to find an abuse of discretion, which we do not, the respondent was not prejudiced by the hearing judge s decision . Although M r. James alleges that he lacked the ability to cross-examine Mr. Kazim, and refresh his recollection, as to dates and times, the record reflected that M r. James use d Mr. K azim s com plaint to the A GC to re fresh his recollection of four visits that Mr. James conducted with Mr. Kazim that lasted approxim ately a half an hour or less and numerous messages that Mr. Kazim left for Mr. James on the la tter s cell p hone. Mr. James also refers in this ex ception to the two cash deposits totaling $1,476.30" noted in the findings of fact, as coming from Mr. Kazim s $1,500 check, to support a fnding of prejudice. The gravamen of the issue surrounding the money is that none of Mr. Kaz im s retainer ever was placed in a trust account, including the $500 allegedly to be paid to an investigator. Furthe r, Mr. James, in his answer to the Petition for Disciplinary Action, 26 admitted that, Upon receipt of Kazim s $1,500 check, the Respondent cashed the check and thereafter made two cash deposits into his operating account totaling $1,476.30. This excep tion is de nied. CONCLUSIONS OF LAW Neither Petitioner nor Respondent takes any specific exception to the Conclusions of Law rendered by Judge Jackson with respect to both complaints. Judge Jackson found violations of MRPC 1.1, 1.3, 1.4, 1.15(a), 8.1 (b), and 8.4 (a), (c), and (d); Maryland Rule 16-604, 16-607, 16-609; and Sections 10-304 and 10-306 of the Business Occupations and Professions Article.23 With respect to Rule 1.1 requiring competent representation to a client, we here tofore have noted that in the Kazim matter, James did not provid e the legal k nowled ge, skill, thoroughness and preparation reasonab ly necessary for the repres entation b ecause ev en with cursory research James would have found that tort damages are not allowed based upon adultery. Doe v. Doe, 358 M d. at 124, 747 A.2d at 624 ( This Co urt decided twenty years ago that public policy wou ld not allow tort damag es based upon a dultery. ). With respect to the Davis matter, Respondent had a negative balance resulting from the inclusion of $10.00 in th e Smith check over the amount that should have been paid and 23 Although the Conclusions of Law indicate that the judge found violations of these sections in connection with both compla ints, not all of the violations w ere charge d with respect to both complaints. We shall restrict our remarks to these sections charged with respect to ea ch comp laint. 27 an insufficient funds charge in his escrow account at the time he deposited the $8,000 Davis settlement into his escrow account, causing the Davis settlement monies to be lessened by the Smith arrearage. The net proceeds due Ms. Davis from the $8,000 settlement was $1,774.75, and was not maintained intact during the period it was held in the escrow account, so that on three different days there was less than $1,774.75 in James s escrow account. We previously have held that a [r]espo ndent s failure to properly maintain [a c lient s] settlement monies in his escrow account demonstrates his incompetence pursuant to Rule 1.1. Attorney Grievance Comm n v. Brown, 380 M d. 661, 6 67-68 , 846 A .2d 428 , 432 (2 004). In January of 2 000, Jam es began using his esc row acco unt, in whic h he prev iously deposited funds from a settlement for Ms. Davis, for both business and personal expenses. We have previously held that [s]uch conduct constitutes clear and convincing evidence of commingling in violation of Maryland Rule 16- 607. Attorney Grievance Comm n v. Powell, 369 Md. 462, 469, 800 A.2d 782, 786 (2002). James inten tionally ceased u sing his personal account and began using his trust account, and Ms. Davis s funds contained therein, for both busin ess and pe rsonal exp enses after d iscussion w ith his spouse . Because Jam es s conduct with respect to his misuse of Ms. Davis s funds was a willful violation of Section 10-306 of the Business Occupations and Professions Article, he is subject to discipline under Section 10-307 of the Business Occupations and Professions Article. See Attorney Grievance Comm n v. Glenn, 341 M d. 448, 4 61, 671 A.2d 4 63, 469 (1996 ). The same behavior in the Davis matter as w ell as James s failure to deposit M r. 28 Kazim s retainer and $500 in f unds to be paid to an investigator also violated MRPC 1.15(d) and 8.4(d) as funds to be delivered in whole or in part to a client or third person, and Maryland Rules 16-604 and 16-609 and Section 10-306 of the Business Occupations and Professions Article. Id. at 460-61, 671 A.2d at 469; see also Attorney Grievance C omm n v. Ober, 350 Md. 616, 632, 714 A.2d 8 56 (19 98). We have previously held that violations of . . . MR PC 1.1 5 . . . nece ssarily resu lt in a vio lation of MR PC 8.4 (a) as w ell. Attorney Grievance Comm n v. Gansler, 377 Md. 656, 699 n.22, 835 A.2d 54 8, 573 n.22 (2003 ), quoting Attorney Grievance Comm n v. Gallagher, 371 Md. 673, 710-1 1, 810 A.2d 996, 1018 (2002). The funds given to James by Mr. Kazim as a retainer and to pay for the costs of an investigator qualify as trust money under Section 10-301 of the Business Occupations and Professions Article. See In re Printing Dimensions, Inc., 153 Bankr. 715, 720 (Bankr. D. Md. 1993). Jam es s failure to deposit the trust money violated Section 10-304 of the Business Occupations and Professions Article, which requires that a lawyer e xpeditiously shall deposit trust money into an attorney trust account. Md. Code (2000, 2004 R epl. Vol.), § 10-304 (a ) of the Business Occupations and Professions Article; Attorney Grievance Comm n v. Blum, 373 Md. 275 , 299, 818 A.2d 2 19, 233 (2003). Judge Jackso n also c onclud ed that th e Resp onden t violated MR PC 1.3 and 1.4 in his handling of the Kazim matter. Rule 1.3 required Respondent to exercise reasonable diligence and promptness in representing his client and Rule 1.4 required the Responde nt to keep Mr. 29 Kazim reasonably informed about the status of his matter, com ply with reaso nable requ ests for informatio n and exp lain with rea sonable n ecessity a matter to permit informed decisionmaking on the part o f the client. The Re sponden t clearly did not act competently in pursuing a cause of action with his client that had no legal basis, and failed to convey any information, let alone informed data, to Mr. Kazim, even in the face of repeated telephone calls from the client. He not only failed to ac t, he also did n ot react to his c lient s attempts to contact him, even though James had collected $1,500 to pursue a baseless cau se of action . This unprofessional behav ior is vio lative of Rules 1 .3 and 1 .4. See Attorney Grievance C omm n v. West, 378 Md. 395 , 409, 836 A.2d 5 88, 596 (2003). The hearing judge determined that James acted in violation of MRPC 8.4 (c) when he dishonestly took trust monies from Mr. Kazim b y failing to deposit the $500 retainer and investigative money in the trust accoun t. We hav e previous ly held that [i]ntentional misappropriation is also a violation of MRPC Rule[] . . . 8.4 (c). Attorney Grievance Comm n v. Zdravkovich, 381 Md. 680 , 704, 852 A.2d 8 2, 96 (2004). Fina lly, the hearing judge found that James violated MRPC 8.1 by failing to respond to Bar Counsel s letters of July 9, 2003, July 30, 2003, September 11, 2003, and September 24, 2003, requesting inform ation regarding M r. Kazim s comp laint. Mr. James s wilful and repeated failure to respon d cons titutes co nduct th at was v iolative o f Rule 8.1. See Attorney Grievance Comm n v. Rose, 383 Md. 385 , 392, 859 A.2d 6 59, 663 (2004). SANCTION 30 As we recently stated in Attorney Grievance Comm n of Maryland v. Goodman, 381 Md. 480, 850 A.2d 1157 (2004), the appropriate sanction for a violation of the MRPC depends on the facts and circumstances of each case, including consideration of any mitigating factors . Id. at 496, 850 A.2d at 11 66; Attorney Grievance Comm n v. Awuah, 374 Md. 505, 526, 823 A.2 d 651, 66 3 (2003); Attorney Grievan ce Com m n v. M cClain, 373 Md. 196, 211, 817 A.2d 218, 227 (2003 ). Primarily, we se ek to prote ct the public, to deter other lawyers from engaging in violations of the Maryland Rules of Professional Condu ct, and to maintain the integrity of the legal profession. Awuah, 374 M d. at 526, 823 A.2d at 663, quoting Attorney Grievance Comm n v. Blum, 373 Md. 275, 303, 818 A.2d 219, 236 (2003). To achieve the goal of protecting the public, we impose a sanction that is comm ensurate with the nature and gravity of the violations and the intent with which they wer e com mitted. Id. The Petitioner has requested that we disbar Respondent and we agree. The hearing judge did not fin d any mitig ation for J ame s s action s nor has the R espo ndent of fere d any. Mr. James acted in direct violation of 1.3, 1.4, 1.15, and 8.4, Maryland Rules 16-604, 16-607, and 16-609, and Maryland Code, Sections 10-304, 10-306, and 10-307 of the Business Occupations and Prof essions A rticle. Mr. Jam es misapp ropriated M s. Davis fu nds in escrow, misappropriated Mr. Kazim s money by not placing funds in escrow, and by using client funds fo r personal p urposes. W e have of ten stated that, [i]ntentional [m]isappropriation, by an attorney, of funds entrusted to [an attorney's] care is an act 31 infected with deceit and dishonesty and, in the absence of compelling extenuating circumstances justifying a lesser sanction, will result in disbarment. Attorney Grievance Comm n v. Spery, 371 Md. 560, 568, 810 A.2d 487, 491 -92 (2002 ); see also Attorney Grievance Comm n v. Vanderlinde, 364 M d. 376, 4 10, 773 A.2d 4 63, 483 (2001 ). To compound the problem, Mr. James, in violation of MRPC 1.1, has acted incompe tently and, in violation of MRPC 8.1, repeatedly has failed to respond to requests of Bar Counsel. Certainly, such conduct reflects Mr. James s inability to avoid further miscond uct. The ap propriate san ction is disbar ment. 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 N S C R I P T S, PURSUANT TO MA RYLAN D RULE 16715(C), FOR WHICH SUM JUDGM ENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION. 32