Attorney Grievance v. Lee

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Attorney Grievance Commission v. Norman Joseph Lee, III, AG No. 20, Sept. Term 2005. ATTORNEY GRIEVANCE - MARYLAND RULES OF PROFESSIONAL CONDUCT 1.3, 1.4, 1.16(d), 3.2, 8.1(b), 8.4(d) - SANCTION - INDEFINITE SUSPENSION Indefinite suspension from the practice of law is the appropriate sanction, in the absence of mitigating circum stances , for vio lations o f MR PC 1.3 (diligen ce), 1.4 (communication), 1.16 (declining or terminating representation), 3.2 (expediting litigation), 8.1(b) (bar admission and disciplinary matters), and 8.4(d) (misconduct), where Respondent failed to: pursue diligently his client s bankruptcy matter in a timely manner, keep his client reasonably informed, return pape rs and une arned fee s to his client upon termination of representation, respond to numerous requests of the Bankruptcy Trustee, and respond to Bar Counsel during the investigation. Circuit Co urt for Baltim ore Cou nty Case No. 03-C-05-007185 OC IN THE COURT OF APPEALS OF MARYLAND AG No. 20 September Term, 2005 ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. NORM AN JO SEPH L EE, III Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Harrell, J. Filed: July 31, 2006 The Attorney Grievance Commission ( Petitioner ), acting through Bar Counse l, filed with this Court a petition for disciplinary action against N orman Joseph L ee, III ( Respondent ), 1 alleging violations of the Maryland Rules of Professional Conduct ( MRPC ) in his representation of Co nnie Marie Ba ker ( Complaina nt ) in her Chapter 7 bankruptcy petition. Petition er charged Respon dent with violating MRPC 1.3 (diligence), 2 1.4 (communication ),3 1.16(d) (declining or terminating representation), 4 3.2 (expediting 1 This is the third disciplinary proceeding against Respondent. Respondent was charged with violations of MRPC 1.3, 1.4(a), 8.1(a), and 8.4(c) in Attorney Grievance Commission v. Lee (Lee I), 387 Md. 89, 874 A.2d 897 (2005), which we remanded to the hearing judge for further proceedings. Respondent was also the subject of another disciplinary procee ding, Attorney Grievance Comm n v. Lee (Lee II), 390 Md. 517, 890 A.2d 273 (2006), in which he received a public reprimand for violating MRPC 1.3 and 1.4. Respondent later received an indefinite suspension for his violations in the Lee I matter. Attorney Grievance Comm n v. Lee (Lee III), ___ Md. ___ , ___ A. 2d ___ (2006) (slip op.). 2 MRP C 1.3 pro vides: A lawyer shall act with reasonable diligence and promptness in representing a client. 3 At the time Respondent was charged, MRPC 1.4 (a) and (b) provided: (a) A lawyer shall keep a client reasonably informed about the status of a matter and prom ptly comply with reasonab le requests for information. (b) A lawyer shall explain a matter to the extend rea sonably necessary to permit the client to make informed decisions regarding the representation. 4 MRPC 1 .16(d) provides: (d) Upon termina tion of r eprese ntation, a lawyer shall take steps to the extent reasonably practicable to protect a client s interests, such as giving re asonable n otice to the clien t, allowing time for employment of other co unsel, surrendering papers an d property (contin ued...) litigation),5 8.1(b) (bar admission and disciplinary matters),6 and 8.4(d) (miscond uct).7 Pursuant to Maryland Rule 16-752(a), we referred the matter to th e Hono rable Vicki BallouWatts of the Circuit Court fo r Baltimore County to conduct an evidentiary hearing and render findings of fact and recommended conclusions of law. 4 (...continued) to which th e clie nt is e ntitle d and ref unding a ny advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law. 5 MRPC 3 .2 provides: A lawye r shall make reasonable efforts to expedite litigation consistent w ith the interests o f the client. 6 MRPC 8 .1(b) provides: An applicant for admission or reinstatement to the ba r, 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 correct a misapprehension known by the person to have arisen in the matters, or knowin gly 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. 7 MRPC 8 .4(d) provides: It is professional misconduct for a lawyer to: *** (d) engage in conduct that is prejudicial to the administration of justice. 2 I. Respondent was served with the Petition, Order, and Writ of Summons on 14 July 2005, directing him to respond to the charges within 15 days from the date of service, pursuant to the order of th is Court an d Maryland Rule 16-5 74(a). Res ponden t filed his Answer to the Petition for Disciplinary Action with the Clerk of the Circuit Court on 18 August 2005, more than a month after he was served.8 Petitioner filed on 25 August 2005 a Mo tion to S trike Re spond ent s A nswe r to the P etition fo r Discip linary Ac tion. An Order of Default was entered against Respondent on 23 August 2005. The evidentiary hearing was set for 2 0 October 2005. Responden t neither filed a request to vacate the Order of Default nor appeared at the scheduled hearing.9 At the conclusion of the hearing, the hearing jud ge granted Petitioner s M otion to Strike Respondent s Answer and received Petitioner s evidence. 8 The Certificate of Service of Respondent s Answer was dated 8 August 2005 by Respon dent, but the envelope transmitting the Answer via U.S. regular mail was postmarked on 17 August 2005. 9 The hearing jud ge made repeated e fforts to con tact Respondent when he failed to appear at the hearing, and reached him on his cellular phone more than two hours later. Respondent indicated that he was unaware of the hearing because the hearing date was not listed on his wo rk calenda r, and that it w ould take him another hour and a half to arrive. When asked spe cifically whether he had received any notification f rom the co urt about this hearing, Respon dent replied , I am not d enying that I did didn t received notification from the [c]ourt; I m saying it was not o n my calend ar. Respo ndent later d enied in his Motion for Reconsideration and during oral argument before this C ourt, held on 6 April 2006, that he received any notification about this hearing. 3 On 16 December 2005, Judge Ballou-Watts filed the following findings of fact and conclusions of law: III. FINDINGS OF FACT Respondent Norman Joseph Lee, III was admitted to the Maryland Bar on M arch 31, 19 81. He is a s olo practitioner in Bel Air, Harford County, Maryland. At all relevant times herein, Respondent maintained an active general pra ctice with a c oncentratio n in business, bankruptcy, personal injury and estate matters. He also represented clients in criminal cases, though mostly at the District Cou rt level. Complainant Connie Marie Baker retained the Respondent to represent her in filing a Chapter 7 Bankruptcy Petition, which the Respondent agreed to do for a proposed fee of $750.00 plus $200.00 costs. During the representation, Complainant paid $625.00 towards the total amount of $950.00 and expenses due. Respondent filed a Chapter 7 Voluntary Petition for Bankruptcy (Petition No. 03-81456) in the U.S. Bankruptcy Court, District of Maryland, on behalf of Complainant, on September 26, 2003. The first meeting f or creditors w as schedu led to be he ld on Novem ber 5, 2003 at 9:00 a.m. a nd 300 W est Pratt Street, #375, Baltimore, Maryland 21201. Notice of this meeting was posted to the Respondent on September 28, 2003. Respondent was requested to produce certain annuity documents deemed necessary by the Bankruptcy Trustee. Respondent was late to the meeting, thereby delaying the proceedings and causing Complainant, the Trustee and creditors to be kept waiting for his appearance. Although the requested docume nts were entrusted to Respondent, he failed to bring them to the sc hedule d credito rs meet ing. Respondent promised to make the documents available but failed to do so. Due to Responden t s failure to provide the requested annuity documents, the Bankruptcy Trustee was caused to file numerous Motions to Extend Time to O bject to Discharge and Motions to Object to Exemptions. Complainant received a letter 4 from the Trustee on or about January 14, 2004, and was surprised to find that the annuity documents had still not been forwarded to the Trustee. By letter date d Febr uary 10, 2 004, Complainant expressed her disappointment with Respondent s inactivity on her behalf and his failure to respond to her contact atte mpts regarding her representation. This letter further notified Respondent that he wa s discharged as her attorney and requested a copy of all papers filed with the Bankruptcy Trustee, return of her file and a refund of $50.00 of the $625.00 paid as of that date. Copies of the letter were sent to the Bankruptcy Trustee, the attorney for the trustee and the Justice Department s attorney representing the Office of the United States Trustee. Bankruptcy Trustee filed two a dditional M otions to Extend Time to Object to Discharge after February 2004. On June 16, 2004, Bankruptcy Trustee filed a Motion to Reduce Compensation and for Return of Excessive Fees. By letter dated March 4, 2004, Connie Marie Baker filed a complaint with the Attorney Grievance Commission regarding Responden t s representation of her in the Chapter 7 Bankruptcy Proceeding. At that time, Complainant still had not received her client file or a refund of unearned fees. Complainant attributed a total of 125 days in additional postponem ents to Responde nt s failure to cooperate, dilatory conduct and inaction. The complaint was docketed and forwarded to the Respon dent, along with a letter seeking his response on March 22, 2004. The letter requested response within ten (10) days and directed Respondent s attention to Maryland Rule of Professional Conduct 8.1. No response was made within this time limit. On April 9, 2004, a second request for information was sent to the Resp ondent via certified ma il, return receip t requested. The return receipt indicated that it was delivered on April 14, 2004. T he secon d request f or inform ation soug ht a response within seven (7) days. While awaiting response to her complaint, Complainant notified Petitioner, through Bar Counsel, that she had not received any responses to letters posted to Respon dent, including the February 10, 2004 letter, discharging him as her attor ney. This letter was mailed via certified mail, return receipt 5 requested. Despite Respondent s failure to reply to Complainant s letters, C omplainan t received a b ill from his office. By letter dated April 15, 2004, R espondent s secretary notified Petitioner, through Bar Counsel, that Respondent had suffered a severe injury in a fall and had to undergo emergency surgery while out of state. The letter indicated that Respondent was hospitalized in intensive care in Ne w Jersey. As of the date of the letter, Respondent s prognosis and availability was unknown. Therefore, Resp ondent s secretary sought an extension on Respondent s behalf. The extension was granted by letter dated April 21, 2004. By letter dated May 6, 2004, Respondent s secretary notified Petitioner, through Bar Counsel, that Respondent was not expected to return to his office on a regular ba sis until midJune, 2004. By that time, Bar Counsel had previously requested documentation of Respondent s medical condition, diagnosis, prognosis and recovery time. Respondent allegedly requested that the documentation be forwarded and, in the interim, provided a copy of the hospital discharge paper and a hospital bill. Comp lainant wa s never no tified by Respondent or Respondent s secretary of his medical condition. By letter dated M ay 13, 2004 a nd addre ssed to his secretary, Respondent was notified that written documentation of his medical condition was still requested. The letter also indicated that the investigation would be held in abeyance until mid-June, or until the doctors reports indicated that Respondent was permitted to return to work . Thereafter, no response was received from Respo ndent or his secretary regarding h is prognosis or Petitioner s request for information in the disciplinary investigation. A Statement of Charges was prepared and forwarded to Respondent on December 10, 2004. This letter directed that the results of the investigation be forw ard to a Peer Review meeting pursuant to Rule 16-741. An investigative file and cover letter were forwarded to the Respondent in addition to the Statement of Charges. All documentation indicated that Respondent had a right to respond to the Statement of Charges in writing as set forth pursuant to Rule 16-734(b)(4). No written response was provided. 6 The Bankruptcy Trustee brought an adversary proceeding against the Complainant and initiated proceedings against the Respondent personally for sanctions and to show cause why his fees were unreasonable and should be returned to the estate. These proceedings were brought, in part, because of Respondent s inaction. IV. CONCLUSIONS OF LAW Petitioner requested findings of fact and conclusions of law as to violations of Maryland Rules of Professional Conduct 1.3, 1.4, 1.16, 3.2, 8.1(b) and 8.4(d). Pursuant to Maryland Rule 2-323(e), the averments set forth in the Statement of Charges are deemed admitted unless denied in the responsive pleading or covered by a general de nial. This court finds by clear and convincing evidence that Respondent Norman Joseph Lee, III committed the following violations of the Marylan d Rules o f Professio nal Cond uct. Rule 1.3 Diligence. A lawyer shall ac t with reaso nable diligence and promptn ess in represe nting a client. Respondent violated Rule 1.3 when he: Failed to timely appear at the scheduled meeting of creditors on behalf of his client; Failed to bring and produce annuity documents requested by the Trustee, which had already been entru sted to Respondent by Complainant; and Failed to diligently pursue the legal matter in a timely manner, causing n umerou s Motion s to Extend Time to O bject to the Discharg e of his clien t s petition for bankruptcy and numerous Objections to Exemptions filed by the Bankruptcy Trustee, de laying the reme dy and relief so ught by his clien t. Rule 1.4 Communication. (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly com ply 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. 7 Respondent violated Rule 1.4 when he: Failed to keep his client reasonably informed about the status of her bankruptcy proceeding; Failed to respond to his client s request for a copy of all papers filed with the Trustee; Failed to inform his client that he did not file promised documents with the Trustee; and Failed to respond to his client s request for return of her file and a refund of a portion of the fee promised as of that date. Rule 1.16 Declining or Terminating Representation. ([d]) Upon termination of representatio n, a lawyer sha ll take steps to the extent reasonably practicable to protect a client s interests, su ch as giving reasonab le notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law. Respondent violated rule 1.16 when he: Failed to return the client file to Complainant after receipt of her February 10, 2004 letter, discharging Respondent as her attorney; and Failed to refund Complainant unearned fees after receipt of her February 10, 2004 letter, discharging Respondent as her attor ney. Rule 3.2 Expediting Litigation. A lawyer shall make reasonable efforts to expedite litigation cons istent with the interests of the client. Respondent violated Rule 3.2 when he: Failed to respond to numerous requests of the Bankruptcy Trustee to provide necessary annuity documents; and That such failure caused several Motions to Extend Time to be filed, thus delaying the conclusion of the bankruptcy proceedings on his client s behalf. Rule 8.1 Bar Admission and Disciplinary Matters. 8 An applicant for admission or reinstatem ent to the bar, or a lawyer in connection with a bar admission application or in conn ection with a disciplinary m atter, shall not: (b) Fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matters, or kn owingly 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. Rule 8.4 M isconduc t. It is professional misconduct for a lawyer to: (d) Engage in conduc t that is prejudic ial to the administration of justice. Respondent violated Rules 8.1(b) and 8.4(d) when he: Failed to respond to the complaint of Connie Marie Baker forwarded to Respondent by letter dated March 22, 2004; Failed to respond to Petitioner s request for information dated April 9, 2004 by certified mail, return receipt requested; and Failed to respond to Petitioner s repeated requests for documentation regarding Respondent s medical condition, diagnosis, prognosis and recovery time which Respondent claimed as the cause for delay in Complainant s Bankruptcy proceedings. Neither Petitioner nor Respon dent took any written excep tions to the hearing judge s findings of fact and conclusions of law. On 4 January 2006, Petitioner filed a Recommendation for Sanction, recommending that Respo ndent be s uspende d indefinitely from the practice of law. Oral argument in this Court was set for 6 April 20 06. Two days before o ral argume nt, Respondent filed a M otion fo r Reco nsidera tion Ba sed on Fraud , Deceit and Misrepresentation, in which h e: (1) denied that he failed to answe r the Petition for 9 Disciplinary Action in a timely manner; (2) alleged that the Assistant Bar Counsel handling this matter pursued the case despite the Complainant s request that it be dismissed; (3) claimed that the Assistant Bar Counsel violated Maryland Rule 16-731(d), which requires an investigation to be completed within 90 days after a complaint is filed, unless extension is granted by the Commission; (4) averred that the Assistant Bar Counsel pursued this matter in retaliation for Respondent s allegation of misconduct against him in an earlier disciplinary case against Respondent, and that Bar Counsel refused to address the alleged abusive conduct of the Assistan t Bar Cou nsel; and (5) asserted that the hearing judge was biased against him. II. The Court of Ap peals exercises original jurisdiction over attorn ey discipline proceedings. Attorney Grievance Comm n v. Zdravkovich, 381 Md. 680, 693, 852 A.2d 82, 90 (2004); Attorney G rievance C omm n v. Harris, 371 Md. 510, 539, 810 A.2d 457, 474 (2002). This Court has the ultimate authority to decide whether a lawyer has violated the profes sional ru les. Attorney Grievance Comm n v. Harrington, 367 Md. 36, 49, 785 A.2d 1260, 1267 (2001). We accept a hearing judge s findings of fact unless we determine that they are clea rly errone ous. Attorney Grievance Comm n v. Guida, 391 Md. 33, 50, 891 A.2d 1085, 1095 ( 2006) . As to th e hearin g judge s conc lusions of law , our consideration is essentially de novo, even where default orders and judgments have been entered at the hearing level. Harrington, 367 Md. at 49, 785 A.2d at 1267-68. 10 Either party may file post-hearing written exceptions to the findings and conclusions of the hearing judge. Maryland Rule 16-758.10 Maryland Rule 16-759(b)(2) provides: (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 field, the Court of Appea ls shall determine whether the findings of fact have been proven by the requisite standard of proof set out in Rule 16757(b). The Court may confine its review to the findings of fact challenged by the excep tions. The Court shall give d ue regard to the oppor tunity of the hea ring judge to assess the cre dibility of witnesses. Thus, if no exce ptions are filed timely, we accept the hearing court s findings of fact as established for the pur poses of d etermining the approp riate san ction. Attorney Grievance Comm n v. Logan, 390 M d. 313, 319 , 888 A.2d 359, 363 (2005); Attorney Grievance Comm n v. Christopher, 383 M d. 624, 638 -39, 861 A .2d 692, 70 0-01 (200 4); Harrington, 367 M d. at 49, 7 85 A.2 d at 126 7. 10 Maryland R ule 16-75 8 provide s, in pertinent p art: (a) Notice of the filing of the reco rd. Upon receiving the record, the Clerk of the Court of Appeals shall notify the parties that the record has been filed. (b) Exceptio ns; recom mendatio ns. Within 15 days after service of the notice required by section (a) of this Rule, eac h party may file (1) exceptions to the findings and conclusions of the hearing judge and (2) recommendations con cerning the appropriate disposition under Ru le 16-759(c). Neither party filed any written exceptions within the 15-day period. 11 If a Motion for R econsideration is filed subseq uent to the filing of the hearing judge s findings of fact and conclus ions of law , this Court ha s the author ity and the discre tion to order further proceedings . . . as justice may require from our review of what is before us even if the motion is untimely filed.11 Attorney Grievan ce Comm n v. Lee (Lee I), 387 Md. 89, 117 n.25, 874 A.2d 897, 913 n.25 (2005). We may remand the proceedings to the hearing judge [w]hen, subsequent to the evidentiary hearing before a judge, a respondent attorney produces . . . new evidence that may be material to the matter, but was not introduced at the hearing . . . . Lee I, 387 Md. at 116, 874 A.2d at 913. After reviewing Respondent s Motion for Reconsideration based on Fraud, Deceit and Misrepresentation, we do not find it necessary to remand this matter to the hearing judge for reconsideration because Respondent failed to suggest with specificity in his motion any new facts material to the matter that were not, or could not have been, adduced at the hearing. See Lee I, 387 Md. at 115-20, 874 A.2d at 912-15 (remanding the case to the hearing judge where the attorney presented in his Motion for Reconsideration newly discovered evidence that may impeach the credibility of a key witness a nd reflect p ositively on the c redibility of the attorney in a case tha t depends heavily on witness credibility). The essence of R espondent s allegations in his Motion is that the disciplinary proceedings prejudiced him in one way or 11 The proper procedure to object to a hearing judge s findings of fact and conclusions of law in an attorney grievance proceeding is to file exceptions within the allotted time, not a motion for recons ideratio n. Maryland Rule 16-758(b). We clearly stated in Lee I, and we reiterate today, that it is entirely within the discretion of this Court whether to review an improperly filed motion for reconsideration. 12 another, but he did n ot, either in his m otion or du ring oral argu ment before this Court, challenge the hearing judge s fa ctual finding s that led to the inevitable conclusion tha t his condu ct in que stion vio lated the rules as c harged . Nonetheless, we choose to discuss one of Respondent s asserted arguments to provide guidance in future attorn ey disciplinary proc eedings. R esponde nt claims tha t this case was pursued by Bar Counsel [ ] despite Complainant Baker s request that it be dismissed prior to peer [r]eview, and produced an affidav it signed by the C omplaina nt in suppo rt of his assertion, implying that Bar Counsel should have dismissed the comp laint if the Complainant so requests. This evidence was not introduced by either party at the hearing. Bar Counse l is not obliged to dismiss a complaint solely at the comp lainant s requ est. Maryland Rule 16-7 31(b) sets o ut the procedure for reviewing a complaint once it is filed with the Attorney Grievance Commission: (b) Review of complaint. (1) Bar Counsel shall make an appropriate investigation of every com plaint that is not facially frivolous or unfounded. (2) If Bar Counsel concludes that the complaint is either frivolous or unfounded or does not allege facts which, if true, would demonstrate either professiona l misconduct or in capa city, Bar Counse l shall dismiss the complaint and notify the complainant of the dismissal. Otherwise, Bar Counsel shall (A) open a file on a complaint, (B) acknowledge receipt of the complaint and expla in in writing to the complainant the procedures of investigating and processing the complaint, (C) comply with the notice requirement of section (c) of this Rule, and (D) cond uct an inve stigation to de termine whether reasonab le grounds e xist to believe the allegations of the complain t. 13 Upon completion of an in vestigation, Bar Counsel may recommend that the complaint be dismissed under R ule 16-735(a): (a) Dism issal or T ermina tion. (1) Upon completion of an investigation, Bar Counsel may recommend to the Comm ission that: (A) the complaint be dismissed because Bar Counsel has concluded that the evidence fails to show that the attorney has engaged in professional misconduct or is incapacitated; or (B) the disciplinary or remedial proceeding be terminated, w ith or without a warning because Bar Counsel has concluded that any professional misconduct on the part of the attorney (i) was not sufficiently serio us to warra nt discipline a nd (ii) is not likely to be repeated. The plain language of the Rule indicates that Bar Co unsel has a duty to investiga te all complain ts filed with the Commission that are not facially frivolous or unfounded, and that once the investigation begins, a complaint should be dismissed only if Bar Counsel concludes that the evidence fails to show sanctionable professional miscon duct or in capa city. Alte rnatively, Bar Counsel may recommend that the proceeding be term inated, even if there was professional misconduct, but only when the misconduct is not sufficie ntly serious to warrant discipline and is not likely to be repeated. Thus, once Bar Counsel initiated an investigation after the complaint was received in this case, he w as duty-boun d to comp lete the investigation and should not dismiss the co mplaint merely upon the C omplainant s subsequent request to withdraw, unless he found the substantive complaint to be frivolous or unfounded. Indeed, if the Rule were construed otherwise, it would allow an attorney under investigation to avoid disciplinary actions by offering the complainant incentives to 14 withdraw the complaint. Even though an individual complainant may believe that he or she was recompensed adequately as a result of the attorney s post-complaint gestures,12 allowing an attorney to avoid a pending investigation and potential disciplinary actions in such a manner would be contrary and detrimental to the purpose of the Maryland Rules of Professional Condu ct to protect th e public an d the public s confidence in the legal profes sion. Attorney Grievance Comm 'n v. Gore, 380 Md. 455, 471, 845 A.2d 1204, 1213 (2004 ). III. As we ob served , supra, neither Petitioner nor Respondent filed written exception s to the hearing judge s findin gs of f act. We therefore accept the hearing judge s findings of fact as established.13 Maryland R ule 16-57 9(2)(A); Logan, 390 Md. at 319, 888 A.2d at 363; 12 In her affidavit, the Complainant stated that, after she filed the complaint with the Attorney Grievance Commission and following his alleged health problem s, Respondent went out of his way t o convenience [ her] . . . and has represented [h er] in all [her] bankruptcy matters without charge for his legal services an d seems to be doin g so in e arnest. 13 During oral argumen t, Respond ent asked th is Court to ex cuse his fa ilure to file exceptions to the he aring ju dge s f inding s and co nclusio ns, because he was in a cha otic situation in November 2005 when excep tions w ere due . The chaotic situation, according to Responde nt, consisted o f filing his ow n persona l bankrup tcy and relocatin g his office. While we are not unmindful of the adversities that sometimes arise in the professional lives of attorneys, we are not convince d that Responde nt s situation was so chaotic that his fa ilure to file exceptio ns should be excus ed. The lac k of exce ptions, view ed togethe r with his failure to appear at the hearing before the hearing judge, can only be characterized as poor prioritization at best (choo sing to reloca te one s law practice rather than filing excep tions in a disciplinary proceeding may result in the office relocation becoming a moot activity), and amounts to an utter disregard of the attorney disciplinary proceedings at worst. We shall not excuse Respondent s failure to file exceptions in this case. 15 Christopher, 383 Md. at 638-39, 861 A.2d at 700-01 ; Harrin gton, 367 Md. at 49, 785 A.2d at 1267 . We conduct a de novo review of the hearing judge s conclusions of law even when default orders and judgments have been entered at the hea ring lev el. Harrington, 367 Md. at 49, 785 A.2d at 1267-68. Up on our de novo review, we agree with the hearing judge and conclude that Resp ondent violated M PRC 1.3, 1.4, 1.16, 3.2, 8.1(b ), and 8.4(d). IV. Having denied R esponde nt s Motio n for Rec onsideration and conc luded that Respondent violated MR PC 1.3 , 1.4, 1.16 , 3.2, 8.1(b), and 8.4(d), we next determine the proper sanction. It is well settled that [t]he purpose of discipline under the Maryland Rules of Professional Conduct is not to punish the lawyer, but to protect the public and the public's confidence in the legal profession. Attorney Griev. Comm'n v. Post, 379 Md. 60, 70, 839 A.2d 718, 724 (2003). We protect the public through sanctions against offending attorneys in two ways: through deterrence of the type of conduct which will not be tolerated, id., and by removing those unfit to continue in the practice of law from the rolls of those authorized to p ractice in this State . See Attorney Griev. Com m'n v. Protokowicz, 326 Md. 714, 729, 607 A.2d 33, 40-41 (1992). The pub lic is protected when sanctions are imposed that are comm ensurate w ith the nature and gravity of the violations and the intent w ith whi ch they w ere com mitted. Post, 379 Md. at 70-71, 839 A.2d at 724. Gore, 380 Md . at 47 1-72 , 845 A.2d at 1 213. The appropr iate s ever ity of the sanction depends upon the facts and circumstances of the case, taking account of any particular aggravating or mitigating factors . Attorney Grievan ce Comm n v. Stolarz, 379 Md. 387, 403, 16 842 A.2d 42, 51 (2004) (citing Attorney Grievance Comm n v. Myers, 333 Md. 440, 447, 635 A.2d 1315, 1318 (19 94)). Mitigation has been analyzed traditionally by this Court in terms of the Am erican B ar Asso ciation s recom mend ed stan dards. See Guida, 391 Md. at 55, 891 A.2d at 1098. In Attorney Grievance Commission v. Glenn, 341 Md. 448, 488-89, 671 A.2d 463, 483 (1996), we stated: The mitigating factors listed in the ABA Standards 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 consequences of miscond uct; full and free disclosure to disciplinary board or cooperative attitude toward proceedings; inexperience in the practice of law; character or reputation; physical or mental disability or impairment; delay in disciplinary proceedings; interim rehabilitation; im position of other pena lties or sanctions; remorse; and finally, remoteness of prior offenses. (Citation omitted). A respondent attorney bears the burden of proving the mitigating fa ctors, if he or s he asserts any, by a preponderance of th e evidence. Ma ryland Rule 16-757(b). 14 Indefinite suspension from the practice of law is the proper sanction where the attorney violates M RPC 1 .3, 1.4, 8.1(b), an d 8.4(d) by failin g to comm unicate w ith the client and failing to cooperate wit h Bar Counsel and where the attorney s conduct is not so 14 Maryland Rule 16-757(b) provides: (b) Burden of proof. The petitioner has the burden of proving the averments 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 defense or matter by a preponderance of the evidence. 17 egregious that only d isbarm ent can adequ ately prote ct the pu blic. Attorney Grievance Comm n v. Kovac ic, 389 Md. 233, 884 A.2d 673 (2005). In Kovacic , the attorney violated MRPC 1.3, 1.4, and 8.1(b) by failing to communicate with her client in a divorce proceeding and failing to respond timely to Bar Coun sel s inq uiries. Kovacic , 389 Md. at 239, 884 A.2d at 676. Noting that there was neither a finding, nor any basis for mitigating the respond ent s miscon duct, we imposed the sanction of indefinite suspension even though the attorney had no prior sanction history. Kovacic , 389 M d. at 240 , 884 A .2d at 67 7. See also Attorney Grievance Comm n v. Rose , 391 Md. 101, 113, 892 A.2d 469, 476 (2006) (holding that indefinite suspension is the proper sanction where the attorney violated MRPC 1.3, 1.4, 8.1(b), and 8.4(d), among others, for client neglect and failure to cooperate with Bar Counsel and had received previously an indefinite su spension w ith the right to se ek reinstatem ent in six month for similar violations). On the other hand, we also have imposed a sanction of reprimand for similar violations of the MRPC where there are significant mitigating factors, such as remorse and a history of pro bono work by a respo ndent. Attorney Grievance Comm n v. Tolar, 357 Md. 569, 745 A.2d 1045 (2000). The attorney in Tolar violated M RPC 1 .3 and 1.4 b y failing to commu nicate adequately to her client, and MRPC 8.1(b) by failing to respond to Bar Counsel s requests in the investigation. Despite her prior sanction history, consisting of two private reprimands, and her violations almost identical to those in Kovacic , she received the less severe sanction of a public reprimand because she was remorseful for her misconduct 18 and because we found that repetition of the misc onduc t was u nlikely. Tolar, 357 Md. at 585, 745 A.2d at 1053-54. We also found it significant in Tolar that the attorney provided considerab le pro bono service to the community, another mitigating factor that called for a less sev ere san ction. Tolar, 357 Md. at 584, 745 A.2d at 1053. In the instant case, Respondent s misconduct closely resembles that in Kovacic and Tolar. Among the rules violated by Respondent are MRPC 1.3, 1.4, and 8.1(b), the same rules violated by the attorneys in those two cases. Unlike the attorney in Kovacic , however, Respondent also violated MRPC 1.16, 3.2, and 8.4(d), and previously has received two sanctions for similar misconduct: a public reprimand in Lee II for vio lations o f MR PC 1.3 and 1.4, and an ind efinite suspe nsion, with the right to rea pply no soon er than one year, in Lee III for violations of M RPC 1.3, 1.4(a), 8.1(a ), and 8.4(c). Thus, a sanction at least as severe as the one imposed in Kovacic is appropriate. Absent any significant mitigating factors, such as those substantiated in Tolar, indefinite suspension from the practice of law is the proper sanction for Respondent s violations in the present case. The hearing judge made no finding s as to whether Respondent established by a preponderance of the evidence any mitigating factors. In particular, nothing in the record suggests that Respo ndent s alleg ed medic al condition could be a mitigating factor. Petitioner first requested documentation of Respondent s medical conditions no later than 6 May 2004, as well as multiple times thereafter. Until oral argumen ts before this Court, almost tw o years after Bar Counsel s initial request for information, and despite his claim that he requested 19 that the documents b e forwarded to P etitioner,15 all that Respondent was able to produce to document his medical condition, in the record before us, was a hospital bill showing that he was hospitalized between 7 April 2004 and 14 April 2004 and a doctor s note stating that he would be unable to wo rk between 7 Jan uary 2005 and 7 February 2005. We acknowledge that Respondent may have faced health issues at certain times, but observe that Respondent has not established by a preponderance of the evidence his medical condition as a mitigating factor for his misc onduct thro ughout th e period of time in que stion. We n ote that his violations at issue in this disciplinary proceeding began in November 2003 (when he failed to produce certain annuity documents entrusted to him) and continued into June 2005 (when Petitioner formally filed charges against him after he failed to respond to Petitioner s repeated requests fo r informatio n and do cumenta tion), spannin g a period o f almost 20 months, approximately five weeks of which R esponde nt was ab le to docum ent and alleg edly attribute to his medical condition. Furthermore, we reiterate that, if ill health indeed renders an attorney physically una ble to perfo rm his or her duties to the court and clients, he or she must promptly inform the court, clients, and other participating attorneys that his or her caseload cannot be managed and, without unreason able delay, ma ke necess ary arrangem ents to protect clien ts interes ts, such a s transf erring c ases to o ther atto rneys. See MRPC 1.16(a)(2) (stating that, except as provided in MRPC 1.16(c), a lawyer shall not represent 15 It is unclear from the record to whom Respon dent mad e the reque st - his secretary or hospital administration. 20 a client or, where representation has commenced, shall withdraw from the representation of a client if . . . the lawyer s physical or mental condition m aterially impairs the lawyer s ability to represent a c lient[.] ); Attorney Grievance Comm n v. West, 378 Md. 395, 424, 836 A.2d 588, 605 (2003 ) (Harrell J., dissenting). Respondent also failed to present any mitigating factors to this Court during oral argumen t. He neither explained his misconduct nor demonstrated remorse. Even though he introduced an affidavit from the Complainant stating that she was satisfie d with Responden t s free services subsequent to the conduct mentioned in the complaint, we are not convinced that this is a remedial act motiva ted by true rem orse, rather tha n an attem pt to procure a w ithdrawal o f the com plaint. We conclude that in definite susp ension fro m the prac tice of law is the appro priate sanction. IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING THE COSTS OF ALL TRANSCRIPT S, PURSUANT TO MARYLAND RULE 16-715(C), FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR O F T H E A T T O R N E Y GR I E V A N C E COMMISSION AGAINST NORM AN JOSEPH LEE, III. 21

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