Attorney Grievance v. Kreamer
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In the Circu it Court for H arford C ounty Case No. 12-C-06-1636 IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG No. 18 September Term, 2006 ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. BARBARA OSBORN KREAM ER Bell, C.J. Harrell Battaglia Greene Murphy Wilner, A lan M. (R etired, Spec ially Assigned) Cathell, D ale R. (Retire d, Specially Assigned), JJ. Opinion by Greene, J. Filed: April 17, 2008 The Attorney Grievance Commission of Maryland, acting through Bar Counsel and pursuant to Maryland Rule 1 6-751 (a), 1 filed a Petition For Disciplinary or Remedial Action against Respondent Barbara Osborn Kreamer on June 22, 2006.2 The Petition alleged that Respondent violated m ultiple provisions of the Maryland Rules of Professional Condu ct in her representation of six former clie nts: Patricia G oodwin , Courtney A nderson, D avid Ferrara, Gregory Dudok, Michael Boone, and Sarah Cald arelli. Bar Counsel alleged that Respondent violated m ost of th e same rules in th e six ind ividual c ases: R ule 1.1 (Competence ),3 Rule 1.2 (Scope of Representation and Allocation of Authority Between Client and Lawyer), 4 Rule 1.3 (Diligence), 5 Rule 1.4 (Comm unication), 6 Rule 1.5 (Fees), 7 1 Maryland R ule 16-75 1 (a) provid es in pertinen t part: (a) Commencement of disciplinary or remedial action. (1) Upon approval of [the Attorney Grievance] Commission. Upon approval of the [the Attorney Grievance] Commission, Bar Counsel shall file a Petition for Disciplinary or Remedial Action in the Court of Appeals. 2 3 Bar Counsel filed an amended petition with this Court on June 8, 2007. MRPC 1 .1 provides: A lawyer shall pro vide com petent representation to a client. Comp etent representatio n requires th e legal kno wledge, sk ill, thoroughness and preparation reasonably necessary for the representation. 4 MRP C 1.2 pro vides in relev ant part: (a) Subject to paragrap hs (c) and (d ), a lawyer shall abid e by a c lient 's decisions concerning the objectives of the representation and, when appropriate, shall consult with the client as to the means by which (contin ued...) 4 5 (...continued) they are to be pu rsued. A la wyer may take such action on behalf of the client as is imp liedly authorized to carry out th e repres entation . A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive ju ry trial and whe ther the c lient will testif y. MRPC 1 .3 provides: A lawyer shall act with reaso nable diligen ce and pro mptness in representing a client. 6 MRPC 1 .4 provides: a) A law yer shall: (1) promptly inform the client of any decision or circumstan ce with respect to w hich the c lient 's informed consent . . . is required by these Rules; (2) keep the client reasonab ly informed about the status of the matter; (3) promptly comply with reasonable requests for information; (4) consult with the client about any relevant limitations on the lawyer s conduct w hen the law yer knows th at the client ex pects assistance not permitte d by the M aryland Lawyers Rules of Professional Conduct or other law. (b) A lawyer sh all explain a m atter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. 7 MRPC 1 .5 (a) provides: A lawyer shall not make an agreement for, charge, or collect an unreason able fee or an unreason able amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following : (continued...) -2- Rule 1.15 (Declining or Term inating Representation), 8 Rule 8.1 (Bar Admission and (...continued) (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment of the lawyer; (3) the fee cus tomarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and a bility of the lawyer or lawyers performing the services; and (8) wheth er the fee is f ixed or con tingent. 8 MRPC 1 .15 provides: (a) A lawyer sh all hold prop erty of clients or th ird persons that is in a lawyer s possessio n in conne ction with a representatio n separate from the lawyer s o wn prop erty. Funds sha ll be kept in a s eparate account maintained pursuant to Title 16, Chapter 600 of the Maryland Rules. Other pro perty shall be ide ntified as such and appropriate ly safeguarded. Complete records of such account funds and of other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation. (b)Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person . Except a s stated in this Rule or otherwise permitted by (contin ued...) -3- Disciplinary Matters), 9 Rule 3.3 (Cand or Toward the Tribunal), 10 and Rule 8.4 8 (...continued) law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such prop erty. (c) When in the course of representation a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interests. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved. 9 MRPC 8 .1 provides: An applicant for admission or reinstatement to the bar, or a law yer in connection with a bar admission application or in connection with a disciplinary ma tter, shall not: (a) knowingly make a false statement or material fact; or (b) fail to disclose a fact nece ssary to correct a misapprehension known by the person to have arisen in the m atter, or know ingly 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. 10 MRP C 3.3 pro vides, in pertin ent part: (a) A lawyer sh all no t kno wingly: (1) make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose a material fac t to a tribunal w hen disclos ure is (contin ued...) -4- (Miscon duct) 11 . Pursuant to Maryland Rules 16-752 (a)12 and 16-757 (c), 13 we referred the 10 (...continued) necessary to avoid assisting a criminal or fraudulent act by the client; (3) fail to disclose to the tribuna l legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evid ence and comes to k now of its falsity, the lawyer shall take reasonable remedial measures. 11 MRPC 8 .4 provides: It is professional misconduct for a lawyer to: (a) violate or attem pt to violate the Rule s of Profe ssional Co nduct, knowin gly assist or induce another to do so, or d o so throug h the acts of another; (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; (e) state or imply an ability to influence improperly a government agency or official; or, (f) knowingly assist a judge or judicial officer in conduct that is a violatio n of ap plicable rules of judicial c onduc t or othe r law. 12 Maryland Rule 16-752 (a) states: (a) Order. Upon the filing of a Petition for Disciplinary or Remedial (contin ued...) -5- matter to the Hon orable Em ory A. Plitt, Jr., of the C ircuit Court f or Harfo rd Coun ty to conduct an evidentiary hearing and to su bmit to this Court proposed findings of fact and conclusions of law. After hea ring evidence over a 6-day period, Judge Plitt filed a 31-page opinion in which he made detailed finding s of fact an d conclus ions of law , culminating in a determination that Respondent violated Rules 1.1, 1.2, 1.3, 1.4, 1.5, 1.16, 8.4 (a), (c), and (d). Respondent filed written exceptions to several of the hearing judge s findings of fact and conclusions of law.14 Bar C ounse l filed no excep tions. STANDARD OF REVIEW 12 13 (...continued) Action, the Court of Appeals may enter an order designating a judge of any circuit court to hear the action and the clerk responsible for maintaining the reco rd. The order of designation shall require the judge, after consultation with Bar Counsel and the attorney, to enter a scheduling order defining the extent of discovery and setting dates for the completion of discovery, filing of motions, and hearing. Maryland R ule 16-75 7 (c) states in p ertinent part: (c) Findings and conclusions. The judge shall p repare and file or dictate into the record a s tatement of the judge s findings o f fact, including findings as to any evidence regarding remedial action, and conclusions of law. 14 Pursuant to Md. Rule 16-758, either party may file post-hearing written exceptions to the findings and conclusions of the hearing judge. If no exceptions are filed by either party, we treat the findings of fact as established for the pur poses of d etermining appropriate sanctions, if any. Maryland Rule 16 -759(b)(2)(A). If excep tions are filed, however, Maryland Rule 16-759(b)(2)(B) provides that this Court shall determine whe ther the findings of fact have been proven by [clear and convinc ing evidence,] the requisite standa rd of proof set out in Rule 1 6-757 (b). In addition, we may confine [our] review to the findings of fact challenged by the exceptions. Id. -6- In proceedings involvin g attorney discipline, this Court has original and complete jurisdiction and conducts an independent review of the record. Attorney Grievan ce Comm n v. Cherry-Mahoi, 388 Md. 124 , 152, 879 A.2d 5 8, 76 (2005). In our review of the record, the hearing judge s findings of fact generally will be accepted unless they are clearly errone ous. Attorney Grievan ce Com m n v. H arris, 403 Md. 142, 155-56, 939 A.2d 732, 740 (2008). See also Maryland Rule 16 -759 (b)(2). 15 As we noted in Attorney Grievance Comm n v. Mahone, 398 M d. 257, 266 , 920 A.2d 458, 463 (2007): As to the scope of our review, we take into consideration whether the findings of fact have been proven by the requisite standard of proof set out in Rule 16-757(b). This Rule provides that Bar Counsel has the burden of proving the averments of the petition by clear and convincing evidence, and the attorney who asserts an affirmative defense or a matter of mitigation or extenuation has the burden of proving the defense or matter of mitigation or extenuation by a preponderance of the evidence. Weighing the credibility of witnesses and resolving any conflict in the evidence are tasks proper for the fact finder. 15 Maryland R ule 16-75 9 (b)(2) pro vides: (b) Revie w by Cour t of Ap peals. *** (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 purp ose o f det ermining approp riate sanc tions, if a ny. (B) If exceptions are filed. If exceptions are filed, 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 16-757 (b). The Court m ay confine its re view to the findings of fact challenged by the excep tions. The Court shall give due regard to the opportunity of the hearing judge to assess the credibility of witnesses -7- (Internal citations and quotations omitted.) As to the hearing judge s conclusions of law, such as whether the provisions of the MRPC were violated, our consideration is essentially de novo. Harris, 403 M d. at 156 , 939 A .2d at 74 0. See also Maryland Rule 16 -759 (b)(1). I. EXCE PTION TO TH E BAC KGR OUN D SEC TION OF HE ARIN G JUD GE S OPINION Respondent first excepts to the Background section of the hearing judge s written opinion. In this section, the hearing judge writes: This is the fourth "formal" disciplinary action brought against Respondent by the Attorney Grievance Commission. On February 2, 1999, she was indefinitely suspended. See Attorney Grievance Comm ission v. Kreamer, 353 Md. 85, 724 A .2d 666 (1999). She was reinstated by the Court of Appeals on June 10, 1999. On November 19, 2002, she was issued a public reprimand. By Opinion of June 21, 2005, she was indefinitely suspended from the practice of law with the right to apply for reinstatement within six months. See Attorney Grievance Comm ission v. Kreamer, 387 Md. 503, 876 A.2d 79 (2005). She has never bee n reinstated a nd has rem ained inde finitely suspended since the Petition in this case was filed on June 22, 2006. Respondent was admitted to practice before the Court of Appea ls on December 18, 1991. Respon dent resides in Harford County at 701 Beards Hill Road, Aberdeen, Maryland 21001, and conducted her practice of law from her home. The Petition for Disciplinary Action, sub judice involves complaints made to the Attorney Grievance Commission by six forme r clients of Resp ondent: Patricia Goodw in; Courtney Anderso n; David Ferrara; G regory Dudok; Michael Boone; and Sarah Caldarelli. From the evidence presented during the course of trial, the events invo lved in these six complaints all occurred prior to Respondent's indefinite suspension. Respondent is charged with violating multiple provisions of the Maryland Rules of Professional Conduct in these six co mplaints from former clie nts. For the m ost part, she is charged with violating most of the same rules in the six individual cases. For ease of -8- reference, I first set out in full the rules which she is alleged to have violated in these complaints. I thereafter treat each complaint individually and relate it back to the particular rules at issue. Respondent complains that this section does not seem to be directed to any factual issues relevant to determining violations vel non by Respondent of any MRPC rules, but rather focuses o n her discip linary history. Specifically, Respondent suggests that the content of this section might well be taken by a disinterested reader as placing Respondent in a decidedly unfavorable light, particularly when asserted so early in the hearing judge s submission and prior to any consideration therein of the merits of the respective positions of the parties. Responden t asks this Co urt to not con sider the Ba ckgroun d section w hen it determines whether or not any act or omission on Responden t s part alleged in the [hearing judge s opinio n] viola ted any M RPC rule cha rged th erein. We overrule Respon dent s first exceptio n. It is clear from the entirety of the hearing judge s opinion that the judge s decision to include a preliminary section describing Responden t s previous disciplinary encounters with this Court did not influence his findings of fact or conclusions of law with regard to the six complaints against Respondent. The analysis utilized by the hearing judge in finding that Respondent violated the MRPC does not include any mention of Respondent s disciplinary history. Therefore, there is nothing in the opinion to suggest th at the inclusio n of a sectio n describing Respond ent s disciplinary history in any w ay influen ced the outcom e of the circuit co urt proc eeding . Moreover, in Attorn ey Grie vance Com m'n v. Harris, 403 Md. 142, 157, 939 A.2d 732, -9- 741 (2008 ), we previously overruled and addressed a similar exception. In Harris, the attorney excepted to the hearing judge s finding that the attorney had been suspended from the practice of la w in 200 2 and had not been re instated as of the date of the hearing judge s opinion. Id. The attorney argued that the finding was immaterial and irrelevant to any alleged violation of the MRPC. Id. We ove rruled the atto rney s excep tion, stating: The issue of this finding's relevancy is dictated by Rule 1 6-757(c), which states that the hearing judge shall prepare and file or dictate into the record a statement of the judge's findings of fact, including findings as to any evidence regarding remedial action, and conclusions of law. It is clear that f indings r egar ding Respondent's status as an attorney are relevant and material to any remedial action. Respondent admitted, when he testified, that he has been suspended from the practice of law since 2002. We, therefore, conclude that the hearing judge's factual findings are supported by clear and convincing evidence and overrule this exception. Id. In the case sub judice, Respondent s disciplinary history is a matter of public r ecord, see Maryland Rule 16-723 (c), and is relevant to any remedial action that might be undertaken by this Cou rt. See Attorney Grievance Comm'n v. Kreamer, 387 Md. 503, 876 A.2d 79 (2005 ). Thus , Respo ndent s excep tion is ov erruled . II. THE COMPLAINT OF GREGORY M. DUDOK The hearing judge made the following findings of fact and conclusions of law concernin g the com plaint of G regory M. D udok: With regard to the complaint of Gregory Dudok, Ms. Kreamer is charged with violating Rules 1.1, 1.2, 1 .3, 1.4, 1.1 6, 8.1, and 8.4. FINDINGS OF FACT Gregory Dudok was the Vice President of a corporation known -10- as The Broken Spoke Family Association, Inc. On or about March 25, 2003, Mr. Dudok retained Ms. Kre amer to dissolve the corporation. He pa id her a r etainer f ee of $ 300.00 . Also on that date, Mr. Dudok signed a retainer/engagement agreement. The agreement provided that Ms. Kre amer w ould perfo rm all neces sary legal service s to dissolve the corporation. Ms. Kreamer also agreed to keep Mr. Dudok appraised of all developments in the case. The agreement provided that $100.00 of the $300.00 retainer was to be considered as a non-refu ndable engagement fee.[16] The fee arrangem ent was on an hourly basis at the rate of $150.00 plus expenses. The agreement also provided that Ms. Kreamer would render bills on a monthly or quarterly basis ''as applicable." Ms. Kreamer also agreed that she would "make every effort to expedite client's case promptly and efficiently according to the highest legal and ethical standards." The $300.00 fee was deposited in her escrow account on March 25, 2003. She withdrew the $100.00 "engagement fee" from her escrow account on March 25, 2003. On the same d ate that he engaged Ms. Kreamer to perform the dissolution, he turned over to her the corporate books and pa pers fo r her use . Simply stated, after M arch 25, 20 03, Ms. K reamer did absolutely nothing to perform the services requested by Mr. Dudok. After waiting over one year for Ms. Kream er to follow through, M r. Dudok attempted to contact her. She received M r. Dudok's messages. Ms. Kreamer, however, never contacted Mr. Dudok in response to the messages that he had left until Saturday night, September 4, 2004 at approxim ately 9:00 p.m. Ultimately Mr. Dudok contacted th e State Department of Assessment and Taxation about trying to dissolve the corporation. Som e uniden tified but practica l emp loyee of the department suggested to Mr. Dudok that he might just want to let the 16 An engagement fee is considered the same as a g eneral retaine r or an ava ilability fee. See In re Gray's Run Technologies, Inc., 217 B.R. 48, 53 (Bnk r.M.D.P a. 1997); In re Printing Dimensions, Inc., 153 B.R. 715, 719 (Bankr.D.Md.1993). In In re Gray s Run Technologies, Inc., the court described this type of named retainer as a sum of m oney paid by a client to secure an attorney's availability over a given period of time. 217 B.R. at 53 (quotation and citation omitted). The court continued: This type of retainer binds a lawyer to represent a particular client while foreclosing that attorney from appearing on behalf of an adverse party. [This] fee is genera lly considered earned upon receipt or non-refundable. Id. (citation s omitte d). -11- corporate charter lapse rather than go through the trouble of dissolving it which is exactly what Mr. Dudok did. After receiving no response to his attempts to contact Ms. Kreamer, Mr. Dudok filed a complaint with the Attorney Grievance Commission. It wa s onl y after the complaint was filed that Ms. Kreamer contacted Mr. Dudok by letter. She acknowledged in the letter that she had received the telephone messages in June. Ms. Kreamer also admitted that she did not respond to those inquires. Ms. Kreamer attempted to defend her actions in this matter by claiming that she needed Articles or a Resolution of Dissolution showing that the Board of the Association had taken formal action approving a dissolution. However, she never told Mr. Dudok that she needed any such do cumenta tion. In fact, the first time she ever mentioned this to Mr. Dudok was in her letter of September 4, 2004. Despite not having done a single thing to perform the services requested, Ms. Kreamer offered to complete the work in her letter of September 4, 2004. She enclosed with the letter of September 4, 2004, a refund of the $300.00 that Mr. Dudok had paid. When Mr .Dudok attempted to first track down Ms. Kreamer in June of 2004, he specifically left messages for her that he needed back all of the corporate documents which he had originally given her. She, howev er, did not resp ond to that re quest until September 12, 2004. Keeping in mind that Ms. Kreamer had all the corporate books and papers since March 25, 2003, in June of 2004, Mr. Dudok realized that he needed all of those documents back in order to file tax returns. Up to that point, Mr. Dudok had assumed that Ms. Kreamer had followed through. He found that she had not followed through when he contacted the State Department of Assessments and Taxation. Ms. Kreamer could not offer any explanation as to why she never did anything to follow through and why she did not return Mr. Dud ok's telephone calls nor keep him advised of the status of the matter. CONCLUSIONS OF LAW I find by clear and convincing evidence that Ms. Kreamer violated the rules of professional conduct alleged by Petitio ner in conjunction with her engagement by Mr. Dudok. Ms. Kreamer incompe tently represented Mr. Dudo k in vio lation of Rule 1 .1 by not exhibiting the thoroughness and preparation reasonably necess ary for the engagement by her failure to prepare and file the necessa ry docume nts to dissolve the association. Further, Ms. Kreamer never -12- orally or in writing told Mr. Du dok that sh e needed a Corpo rate Resolution or Minutes to reflect agreement on dissolving the corporation. Her failure to do anything on behalf of Mr. Dudok for over one year violated Rules 1.2 and 1.3 by her failure to ab ide b y her c lient 's request that a dissolution be filed on behalf of the corporation and by failing to act in a reasonable time to conclude the representation. In point of fact, as noted in my Findings of Fact, she did absolutely nothing for over fifteen months. She also vio lated R ule 1.4 by failing to communica te with Mr. Dudok, as noted, for over one year, and violated Rule 1.16(d) by failing to advise Mr. Dudok that she had done nothing and had in essence abandon ed her repr esentation. It should be o bvious tha t if Mr. Dudok had not contacted her in June of 2004, she would have continued to do nothing to follow through on her client's direction concerning the dissolution. She also violated Rule 8.4(c) by taking the $100.00 non-refundable "engagement fee" upon representation and the $200.00 retainer and then neve r contacting Mr. Du dok at all or keeping him up to date on her progress. Perhaps most telling was her inability to answer the question posed to her at trial as to when, if ever, she was going to do anything to follow through. She could not answer. She took the m oney with obvious ly no intent to pursue the matter. Ms. Kre ame r's total lack of any follow through for well over one year, her failure to respond to Mr. Dudok's inquires, and her failure to return the corporate books until over three months after she was asked were certainly prejudicial to the administration of justice in violation of Rule 8.4(d). (Interna l record citations .) Respondent submits four exceptions to the hearing judge s factual findings regarding her representation of Mr. Dudock. Respondent first complains that the hearing judge erred in finding that Mr. D udock turned o ver to [Respondent] the corporate books and papers for her use. Respondent contends that this finding lacks the re quisite evide ntiary support because the record [ ] seems to indicate that Mr. Dudock gave Respon dent a single -13- corporate book. In addition, Respondent contends that Mr. Dudock did not actually turn over all necessary documents for the dissolution of the corporation; specifically, he did not turn over formalized minutes recording the approval of the dissolution of the corporation. We find this exc eption is w ithout me rit. While the hearing judge s use of the phrase corporate books and papers may not be the most precise phraseology, it nonethele ss is supported by the record. Mr. Dud ock testified that on M arch 25, 2003, he turn ed over all docum ents of the corporation that were in existence at that time. The om ission of a formalized record of the vote of the corporation s board of directors from the notebook does not render the hearing judge s finding unsupported by the evidence. While these papers may not have been voluminous or numerous, the intent of the hearing judge s statem ent is clear, Mr. Dudock relinquished to Respo ndent all co rporate doc uments in his possession at the time he signed the retainer ag reement. Second, Responden t excepts to the hearing judge s finding that after March 25, 2003, [Respo ndent] did absolutely nothin g to per form th e servic es requ ested b y Mr. D udock . 17 Respondent contends that this finding is in error because Respondent testified that after she met with Mr. Dudock on March 25, 2003, she, at a minimum, researched Maryland statutes regarding dissolution of corporations. Respondent s exception misses the point. The hearing 17 In addition, Respondent excepts to two other, similar factual findings: (1) Despite not having done a single thing to perform the services requested . . . ; and, (2) Ms. Kreamer could not offer any explanation as to why she nev er did an ything to f ollow t hroug h . . . . We shall co mbine these ex ception s and ad dress th em tog ether. -14- judge found that Respondent did little to no work on the matter which Mr. Dudock hired Respondent to complete; that is, to bring about the formal dissolution of The Broken Spoke Family Association, Inc. According to Mr. Dudock s testimony, he turned over corporate docume nts to Respondent on March 25, 2003. Mr. Dudock then testified that at no time afterward did Responden t communicate to h im her need for a formalized record of th e vote of the Board of Directors approving the dissolution of the corpora tion. While Respondent may have researched Maryland statutory law on the dissolution of a corporation, it is clear from the re cord that R esponde nt, in the year that she had the corporate documents, did not undertake any other steps to effectu ate the corp oration s diss olution, includ ing the mo st basic step of requesting from Mr. Dudock a formalized record o f the vote of the Bo ard of Directors approving the dissolution of the corporation. The exception is overruled. III. THE COMPLAINT OF COURTNEY ANDERSON The hearing judge made the following findings of fact and conclusions of law concerning the complaint of Courtney Anderson: With regard to the complaint of Courtney Anderson, Ms. Kreamer is charged with violating Rules 1.3, 1.4, 1.5, and 8.4. FINDINGS OF FACT On Apri1 24, 2003, Courtney Anderson hired Ms. Kreamer for representation in her divorce. Ms. Kreamer and Ms. Anderson signed a retainer/engagement agreeme nt in which Ms. An derson ag reed to pay Ms. Kreamer a retainer of $1,200.00, $600.00 of which was considered to be a non-refundable engagement fee. On that same date, Ms. Kreamer deposited the $1,200.00 into her escrow account. The $1,200.00 was paid on Ms. Anderson' s beha lf by her mother, Jackie Turner. Ms. Kreamer then removed the $600.00 of the -15- $1,200.00 retainer from her escrow account as her "engagement fee". Prior to retaining Ms. Krea mer, Ms. An derson and her h usband had already separated and divided marital assets. Ms. Anderson was already receiving child support and she told Ms. Kreamer at the outset of the engagement that there were no is sues concern ing a limo ny, retirement, marital p rope rty or c hild custody as those matters had previously been resolved between Ms. Anderson and her husband. Ms. Anderson further told Ms. Kreamer that Mr. Anderson was agreeable to everything and requested that Ms. Kreamer prepare a Property/Sep aration Ag reement to memoria lize the agree ment. During her first meeting w ith Ms. Kreamer, Ms. Anderson was told by Ms. Kreamer that she would "get right on it." However, after hiring Ms. Kreamer in April, Ms. Anderson had no contact from Ms. Kreamer for five m onths there after. Ms. A nderson a ttempted to contact Ms. Kream er at least once a month f or those five months following her retention but never got any response. She became so concerned about the lack of a response that she increased her telephone calls to Ms. Kreamer's office to weekly. The first communication of any kind that Ms. Anderson received from Ms. Kreamer was a copy of a letter dated September 29, 2003 which Ms. Kreamer sent to Mr. Anderson advising him that she had been retained to repre sent M s. And erson. Despite having been reta ined in Ap ril, Ms. Kre amer did nothing more to move the matter along until September 29, 2003, when she filed a Complaint for a Limited Divorc e. It is absolutely clear that Ms. Kreamer did nothing to work on the Property/Separation Agreement until April of 2004, over one year later. A Master's hearing was scheduled in June of 2004. Ms. Kream er, howev er, did not inform Ms. Anderson about the Master's hearing and the first that Ms. Anderson knew about it was when she received correspondence from Master Frederick Hatem. The only explanation Ms. Kreamer could offer was her claim that Ms. Anderson had changed addresses and it was h ard to contact her. That explanation is unworthy of belief. At some point she paid Ms. Kreamer an additional $468.00 to cover what Ms. Kreamer claimed to be the cost of the Master's Hearing. Ultimately, Ms. Anderso n did in fact receive her divorce. Ultimately when confronted by Ms. Anderson about the dela y, Ms. Kreamer told her tha t she was "too busy." M s. Kreamer never explained to Ms. Anderson why she was so busy or that she w ould -16- pick up the pace. Ms. Anderson never agreed to delaying the m atter, and because s he had alre ady resolved th ings with h er husban d, she did not think that the matter wo uld be too comp licated. In point of fa ct, Ms. Anderson lived dow n the street fro m Ms. K reamer an d it would appear to me that there was no good reason why Ms. Kreamer did not keep h er infor med o r advise her that s he had not got ten to he r case. Despite Ms. Kreamer having agreed to periodically bill Ms. Anderson, Ms. An derson did not receive any bill or accountin g until January 8, 2004, some eight and a half months after the representation began. Between the time of her retaining Ms. Kreamer and the billing of January 8, 2004, Ms. Anderson had no idea as to how the money she had paid Ms. Kreamer was being used or what, if any, efforts Ms. Kreamer had made towards m oving her matter along . Evidently uncertain of the accuracy of the January 8, 2004 bill, four days later on January 12, 2004, Ms. Kreamer sent Ms. Anderson another invoice in a different amount. During the course of its investigation, the AGC obtained certain records from Ms. Kreamer concerning her representation of Ms. Anderson. The alleged contemporaneous billing records are virtually indecipherable. Ms. Kreamer also sent additional bills to Ms. Anderson on May 25, 2004 and July 19, 2004. Ms. Anderson did not realize that Ms. Kreamer was charging her for things w hich shou ld properly be considered as office overhead such as setting up a file, revising accounting records, etc. For example, Ms. K reamer improperly billed Ms. Anderson 15 minutes time on September 23, 2003 for what she described as "file organization and time sheet." At the time that Ms. Kreamer billed Ms. Anderson for this, the only documents in her file were her initial notes and a Financial Statement prepared on April 29, 2003. This task, according to Ms . Kream er, invo lved m erely puttin g Ms. Anderso n's name on a file and putting do cuments in a file. She did nothing more than take a pre-printed form and place Ms. Anderson's name on it. Ms. Kreamer also charged Ms. Anderson other billing statements for "reimbursement of fees and review and revise a ccounting ." This involved doing nothing other than filling out a deposit slip and updating her accounting records. CONCLUSION OF LAW I find by clear an d convinc ing eviden ce that by her co nduct, Ms. Kreamer violated the rules as allege d. Her failure to prepare the Separation Agreement on behalf of Ms. Anderson and as Ms. Anderson requested within a reasonable time after being retained -17- demonstrates a lack of diligence in violation of Rule 1.3. It must be kept in mind tha t at the time Ms. Kreamer was retained by Ms. Anderson, there were no outstanding issues co ncer ning prop erty, alim ony, retirement or custody. Ms. Anderson was already receiving child support and Mr. Anderson was already agreeable to the terms they had wo rked out. M s. Kream er failed to ta ke any action on Ms. And erso n's behalf until the end of September, 2003, five months after being r etained . Ms. Kreamer also violated R ule 1.4 by failing to maintain communications with Ms. Anderson and failing to return Ms. And erso n's telephone calls during the five month lapse between the time she was r etained by M s. Anderso n and the f irst letter she sent to Mr. Anderso n. Despite h er obligation to do so, M s. Kream er failed to commu nicate with Ms. Anderson for eight and one-half months about how the money paid was being used and what Ms. Anderson owed. She did not sen d periodic b illings to Ms. Anderson as was required by the retainer ag reement. Ms. Kream er violated R ule 1.5 by unre asonably charging Ms. Anderson for such things as file organization, time sheet maintenance, reimbursement of fees and review and revise accounting. These are matters of overhead in any law of fice. One is left to won der wha t, if anything, she did to revise accou nting b ecause , as noted, her time sheets are totally unintelligible. Her failure to diligently pursue Ms. Anderson's Separation Agreement and divorce, un reasonab ly charging her for administrative overhead as well as failing to maintain communications with Ms. Anderson, keeping her posted as to what was going on and not moving forward promptly is conduct prejudicial to the administration of justice in violation of Rule 8 .4(d). (Interna l record citations .) Respondent excepts to the following statement made by the hearing judge: Despite having been retained in April [of 2003], [Respondent] did nothing more to move the matter along until September 29, 20 03. It is absolutely clear that [Responden t] did nothing to work on the Prope rty/Settlement A greemen t until April o f 2004 , over on e year later . Respondent -18- contends this finding is clearly erroneous, arguing: The time interval referre d to by the hea ring judge in this finding was not inordinate, the complaint for divorce having been filed within four or five months of Respon dent s entry into this matter. Although the complaint sought on ly limited divorce , so that it could have been filed earlier, in the interim, Ms. Anderson appeared to be comforta ble with her situation in that she had been and still was talking with her husband about their martial situation and was receiving support m oney from h im, including child support in an amount in excess of what she likely would have been awarded under the guidelines. S he was u nwilling to b ring an action based upon her husband s adultery (he was then already involved with another woman, who was pregnan t by him and a waiting the birth of the c hild . . .) which would h ave provided a gro und for a muc h more immedia te absolute divorce. She was also apparently herself involved with another man , although in h er tes timo ny she denied in tima cy. We overrule Respondent s exception as it does not address the underlying fa cts of the hearing judge s findings. R esponde nt s exceptio n merely attem pts to shift the resp onsibility for Responden t s failure to undertake steps to effectuate the divorce onto Ms. Anderson. The social construction of Ms. Anderson s and Mr. Anderson s relationship and their personal lives outside their marriage does not ad dress or explain Resp ondent s failure to complete the task fo r which she w as hired . IV. THE COMPLAINT OF DAVID A. FERRARA As to the complaint of David A. Ferrara, the hearing judge made the following findings of fact and conclusions of law: In this matter, Ms. Kreamer is charged with violating Rules 1.1, 1.2, 1 .4, 1.5, an d 8.4. -19- FINDINGS OF FACT On November 12, 2003, Mr. Fe rrara retained M s. Kream er to represent him in a divorce and custody matter and paid a $1,500.00 retainer. $500.00 of the $1,500.00 retainer was considered to be a non-refu ndable engagement fee. The agreement between M r. Ferrara and Ms. Kreamer provided that Ms. Kreamer would render bills on a periodic basis either monthly or quarterly, recapping the services rendered and itemizing any expenses. The agreement provided that Ms. Kreamer w ould represent M r. Ferrara on an ho urly basis at a rate of $160 .00 per hour and further that she would "mak e every effort to expedite client's case promptly and efficiently according to the highest legal an d ethica l standa rds." The calculation of child sup port is go vern ed by 12-20112-204, Fam ily Law A rticle, Maryland Code and Maryla nd Rule 9-206. In partic ular, Rule 9-206 sets forth the worksh eets that are to be used in making child support calculations under two circumstances, primary physical custody and shared physical custody. The worksh eets set forth the exact manner in w hich child support is to be calculated. The statute re quires th e use of the guid elines. Section 12-203, Fam ily Law A rticle, provides that the Court of Appeals mandates standardized worksheet forms to be used which, of course, is the purpose of Rule 9-206. On five different occasions during her representation of Mr. Ferrara, Ms. Kreamer calculated what she believed to be Mr. Ferrara's child support obligation. Each time, despite the information being the same, Ms. K reamer told Mr. Fe rrara that his child support o bligation w as a differe nt figure. In c ontacts that Mr. Ferrara had with his wife, he learned that his wife's attorney had calculated the child support guidelines differently from the many attempts by Ms. Kreamer. Mr. Ferrara's wife was represented by H. Edward Andr ews, E squire. Concerned about the different figures he was being given, Mr. Ferrara went to the judiciary's website and accessed the required worksheet forms. Because of the improper calculation of the child support guidelines by M s. Kreamer, M r. Ferrara, after completing the forms, realized that there was at least a $200.00 discrepancy between Ms. Kreamer's calculations and those of his wife's a ttorn ey. Ms. Kreamer admitted at trial that she improperly calculated Mr. Ferrara's child support obligations and further admitted that she used a form that she had created instead of the child support guidelines worksheet. It is important to note that although in her -20- testimony she claimed to understand what the term "adjusted actual income" meant, she could not explain it. Despite instructions from me, not to look in her client file, she did so an d tried to use Mr. Ferr ara's wife's attorne y's guidelines w orksheet to explain the correct method of calculation. Ms. Kreamer ultimately admitted that she had made mistakes in the calculations. After discovering these errors, M r. Ferrara became very insecure about Ms. Kreamer's method of calculation which was, of course, critical from his perspective. Mr. Ferrara told Ms. Kreamer that because of his work and personal situation, it wo uld be impossible for him to have his children with him every weekend and that he agreed to his wife having primary physical custody of their children . Neverthe less, despite Mr. Ferr ara's explicit instructions to Ms. Krea mer to the contrary, she insisted on calculating child support guidelines on a shared custody basis and pursued that with opposing co unsel. Mr. Ferrara w as very straightforward with Ms. Kreamer concerning custody and visitation, yet she did exactly the opposite of w hat Mr. Ferrara told her. De spite being aware of and having had brought to her attention the erro rs in the calculation of child support, Ms. Kreamer nevertheless charged Mr. Ferrara for the continuing erroneous calculations twice on November 25, 2003, once on December 1, 2003, once on December 3, 2003, once on December 24, 2003, and once on January 3, 2004. A Pre- Trial Conference with the court was set for February 13, 2004. In discussions with M s. Kreamer, M r. Ferrara told her that he would be available on that date. However, Ms. Kreamer was not available. Ms. Kreamer then asked the court to reset the conference for February 20, 2004 but that was on a date that Mr. Ferrara was not available. He had told Ms. Kreamer prior thereto that he would not be available on February 20, 20 04. Ms. Kream er offered this Court no explanation as to why she rescheduled the Pre-Trial Conference on a date when her client w as unava ilable, despite k nowing of his conflict in adva nce. Evidently, that Pre- Trial Conference did not take place. Throughout her represe ntation of Mr. Fe rrara, he con tinually requested periodic invoices from Ms. Kreamer. That was in fact one of the conditio ns of the re tainer agreem ent that she had with M r. Ferrara. Even though the retainer ag reement p rovided fo r billings to be done monthly or quarterly ''as appropriate," he did not receive an invoice until February 11, 2004. With regard to the issue of the scheduling of the P re-Tria l Conf erence , Ms. Kreamer billed M r. -21- Ferrara for rescheduling this. Beg inning on Februa ry 11, 2004, Mr. Ferrara received a number of invoices from Ms. Kreamer respectively dated March 3, 2004, June 30, 2004, and July 30, 2004. None of them agree. Mr. Ferra ra asked to see M s. Kr eam er's detailed billing records which are totally incomprehensible. One thing is clear from the detailed time records and the billing statements and that is, like the other comp laints, Ms. Kreamer charged Mr. Ferrara for such administrative tasks as updating and rev ising her time sheets, file preparation, etc. Despite Mr. Ferrara's requests, Ms. Kreamer did not provide the requested d etailed time sheet information u ntil after Mr. Ferrara terminated her. During her representation of Mr. Ferrara, Ms. Kreamer unreason ably continued to charge Mr. Ferrara for doing her own accounting. Ms. Kreamer in fact testified that she billed Mr. Ferrara for the time it took to document money she had received from him and to write a deposit slip. She charged Mr. Ferrara 1 hour and 30 minutes on March 3, 2004, for what she described as "accounting and file organization;" fifteen minutes on November 26, 2003 for "updating time sheet;" seven minutes on December 8, 2003 for "update time sheet;" f ive minute s on Dec ember 16 , 2003 for "update time sheet;" and five minutes on January 5, 2004 for "time sheet update ." In fact, it is questionable whether or not Ms. Kreamer had any idea at all about how much time she spent. Instead of keeping contemporaneous separate time sheets, she calculated the time spent on the matter by going to her "calendar books" and client files to figure out what she had done. It became apparent that some of the charges that she ma de for thes e administra tive tasks w ere for her to figure out h ow mu ch time she had spen t. By letter of March 3, 2004 Mr. Ferrara terminated Ms. Kreamer. His letter to M s. Kream er terminating her services is important in that it sets out in detail the events concerning the calculation of the child support guidelines and the issues concerning the scheduling of the Pre-Trial Conference and the bills. Of particular interest is the fact that (as verified by the bills) that on March 2, 2004, Mr. Ferrara paid Ms. Kreamer $500.00, and then the very next day she told him that he owed her an additional $810.00. She then changed that to say that h e owe d her an addition al $1,300.00. Mr. Ferrara continued to receive bills after he terminated Ms. Kreamer again none of which agreed. On June 30, 2004, Ms. Kreamer adv ised Mr. Ferrara that she had made some errors in her billing statements and deducted -22- $570.00 from the balance he owed but then told him he still owed her $1,5 41.0 0. Ultima tely, the fee disp ute between Mr. Ferrara and Ms. Kreamer was resolved by arbitration and Mr. Ferrara paid an additional $72.00 over and above what he had previously paid. One of the mo st troubling as pects of the Ferrara co mplaint is the fact that Mr. Ferrara, at the outset of the representation, asked Ms. Kreamer if she had ever had any prior disciplin ary issues. It is absolutely clear to me th at Ms. K reamer m isrepresente d to Mr. Ferrara that she had n ever been in trouble with the ba r. She abso lutely knew when she w as as ked that q uestion b y Mr. Ferrara that she had been suspended on February 2,1999 and issued a reprimand on November 19, 2002. Mr. Ferrara later found out the truth by consulting the Co urt of App eals publica lly available recor ds through the internet. CONCLUSIONS OF LAW There is no doubt by clear and convincing evidence that Ms. Kreamer has violated the rules of professional conduct as alleged by AGC. She incompetently represented Mr. Ferra ra in violation of Rule 1.1 by not exhibiting the thorough ness and p reparation re asonably necessary for the representation by her abject failure to understand and compreh end how to calculate c hild support. Although she claims that the majority of her practice was family law, she had no idea how or when to deduct c hild health care insurance costs when calculating child support. Furthermore, she did not understand the meaning of "adjusted actual incom e" in the calcula tion of c hild sup port. Had she understood what that term m eans and had she c onsulted the Family Law Article and the rules, it would not have been necessary to calculate the child support guidelines on five different occasions knowing that there was no dispute as to the figures to be "plugged in." Further, she did not comprehend the use of the required worksheets. Rather, she used some form that she had created which, as one can see, is at v ariance with th e requir ed wo rkshee t. Mr. Ferrara m ade it clear to M s. Kream er that becau se of his personal situation, he could not have the children every weekend yet, despite those instructions, she continued to propose that and charge Mr. Ferrara for pro ceedin g in that f ashion . She vio lated R ule 1.4 by failing to communicate with Mr. Ferrara throughout the representation as to how she was billing him, the accuracy of her billings, and how retainer funds were b eing us ed. She unreason ably charged Mr. Ferra ra for misca lculating the child support guidelines; for rescheduling the Pre-Trial Conference -23- for which she knew he was not available; and for "updating time sheet" and for updating accounting and reimbursement all in violation of Rule 1.5. She unreasonably charged Mr. Ferrara for her mistakes as well as th e cos t for runn ing h er law office b y updating her time sheets which was really trying to figure out how much time she had spent on his case, rev iewing he r accountin g, and filling o ut deposit slips so that she c ould reimburse herself the cost of various court fees. Lastly, Ms. Kreamer clearly violated Rule 8.4(c) by misrepresenting to Mr. Ferrara that she had never been in trouble w ith the bar. When asked that question by Mr. Ferrara she clearly replied no, knowing full well that there were at least two prior formal disciplinary actions by the Court of Appeals against her. It is also clear beyond any doubt that her conduct throughout the representation of Mr. Ferrara was conduct prejudicial to the administration of justice in violat ion of R ule 8.4( d). (Interna l record citations omitted .) Respondent first excepts to two of the hearing judge s findings: (1) Ms. Kreamer ultimately admitted that she had made mistakes in the calculations. After discovering these errors, Mr. Ferrara became very insecure about Ms. Kreamer's method of calculation which was, of course, critical from his perspective. ; and, (2) Nevertheless, despite Mr. Ferrara's explicit instructions to Ms. Kreamer to the contrary, she insisted on calculating child support guidelines on a shared custody basis and pursued that with opposing counsel. Mr. Ferrara was very straightforward with Ms. Kreamer concerning custody and visitation, yet she did exactly the opposite of what Mr. Ferrara told her. Despite being aware of and having had brought to her attention the e rrors in the ca lculation of c hild support, Ms. Kreamer nevertheless charged Mr. Ferrara for the continuing erroneous calculations twice on November 25, 2003, once on December 1, 2003, once on December 3, 2003, once on December 24, 2003, and once on January 3, 2004. (Internal record citation omitted.) Respondent argues these findings are in error because the -24- record demonstrates[ ] that Mr. Ferrara continually gave [Respondent] changing information pertinent to child supp ort guideline s calculations , which [th ereafter] req uired or sub stantially contributed to requiring recalculations of child support, with concomitant expense. We overru le Resp onden t s exce ptions. Consistent with the standard of review for factual findings in attorney discipline cases, we have iterated that the judge m ay elect to pick a nd choo se which evidence to rely upon. Harris, 403 Md. at 158, 939 A.2d at 742 (quoting Attorney Grievance Comm n v. Harris, 371 Md. 51 0, 543, 810 A.2d 457, 477 (2002 )). With respect to these exceptions, the hearing judge d id just tha t. Although Respondent testified that Mr. Ferrara called or stopped by Respondent s office several times to have his child support obligation recalculated by Respon dent, Mr. Ferra ra testified that h e had Responden t recalculate his child support obligation on five different occasions over a period of a month . . . and a half because, with exception of the last [calculation,] they were done incorrectly. Mr. Ferrara testified that through his own research and from conversations with his ex-wife, he learned that Respondent s calculations h ad been in correctly perfo rmed, to M r. Ferrara s de triment. Therefore, the hearing judge chose to believe the testimony of Mr. Ferrara concerning Responden t s representation of Mr. Ferrara in his divorce. We have reviewed the record and conclude that the hearing judge's factual findings are supported by clear and convincing evidence. Respondent next excepts to the hearing judge s finding that Respondent had asked -25- the court to reset the [pre-trial] conference on a da te that M r. Ferrar a was n ot availa ble . . . . [Respondent] offered [the hearing judge] no explanation as to why she rescheduled the Pre-Trial Conference on a date when her client was unavailable, despite k nowing of his conflict in advance. Resp ondent co mplains tha t the record discloses [th at Respon dent] promptly made reasonable efforts to resolve the scheduling problem that arose, including communicating with the chambers of Judge Carr to reschedule the conference involved, but unknown to her at the time [as] opposing counsel had gone directly to the Assignment Office and obtained the Fe bruary 20, 20 04 date. R esponde nt s exceptio n does no t refute the factual findings in question. Indeed, the hearing judge s factual findings are supported by the evidence . The testimo ny of Mr. F errara indica tes that he inf ormed R esponde nt of his unavailab ility to attend any conferences f rom February 20 through February 27, 2004. Respon dent, however, failed to co nfirm with the Assignment Office that the rescheduled pretrial conference (from February 13, 2004) was not rescheduled on a day which Mr. F errara could not attend. Respondent contends that opposing counsel contacted the Assignment Office without her knowledge; however, Respondent should have taken a more proactive response to the rescheduling of the pre-trial conference. Respondent should have not just contacted the ju dge s ch amb ers to resc hedule th e origina lly-scheduled Feb ruar y 13, 2004, conference, but should have also contacted the Assignment Office. The exception is overruled. V. THE COMPLAINT OF SARA LOUISE CALDARELLI -26- As to the complaint of Sara Louise Caldarelli, the hearing judge made the following findings of fact and conclusions of law: In the matter of the complaint of Mrs. Caldarelli, Ms. Kreamer is charged with violating Rules 1.1, 1.2, 1.3, 1.4, 1.5, 8.1, and 8.4. FINDINGS OF FACT On March 21, 2003, Mrs. Caldarelli retained Ms. Kreamer for representation in a divorce case. It shou ld be note d that prior to retaining Ms. K reame r, Mrs. Caldarelli had been represented by another lawyer, Zoe Lambros, Esquire, who ceased practicing law and moved out of state. At the time Mrs. Calda relli retained Ms. Kream er, Mrs. Caldarelli and her husband had already executed a Separation and Property Settlem ent Agre ement. Ms. Kreamer used basically the same retainer/engagement agreement that she used with her other clients, again in which Ms. Kre amer agre ed to "mak e every effo rt to expedite client's case promptly and efficiently according to the highest legal and ethical standards." Ms. Caldarelli gave Ms. Kreamer a $1,300.00 retainer fee. The Retainer Agreement has a date of July 3, 2003 for Mrs. C aldarelli's signatu re and a da te of March 25, 2003 for Ms. Kreamer's signature. Ms. Kreamer made the astounding statement at trial that she did not consider herself as representing Mrs. Caldarelli until after July 3, 20 03. She ac cepted the money and cashed the check. On Apri114, 2003, Ms. Kreamer withdrew the $600.00 engagement fee from her escrow account. It defies belief for Ms. Kreamer to allege that she didn't consider herself as representing Mrs. Caldarelli until after July of 2003. Long before she reta ined M s. Krea mer to r eprese nt her, Mrs. Caldarelli had filed pro se, on August 12, 2002, a Complaint for Absolute Divorce in this court in C ivil No. 12-C-02-231 4. Mr. Caldarelli filed an A nsw er to Mrs . Cal dare lli' s pro se Complaint on September 9, 2002, admitting that the parties had been separated for more than two yea rs and requ esting that the court grant the divorce and that the Separation and Property Settlement Agreement be incorporated therein but not merged. S ubseque nt to that pro se Answer, another Answer was filed by Mr. Caldarelli through a lawyer in the State of Georgia identified as T. Jeff Moore. It was undisputed that Mr. Moore was not a member of the Maryland Bar and did not request admission for the p urpose of representing Mr. Cald arelli. -27- Keep in mind that the subsequent Answer by the Georgia lawyer was filed five months before Mrs. Caldarelli retained Ms. Kreamer and was sitting in the court file. In that subsequent A nswer, the Geor gia lawyer on behalf of Mr. Caldarelli challenged service of process, jurisdiction and the execution of the Separation a nd Prope rty Settlement Agreem ent. Additio nally, the Answ er by the Geo rgia attorney questioned the bona fides of the pro se Answer Mr. Cald arelli had filed some two months before on September 9th. There was also in the court file a n Affid avit of Serv ice attesting to service on Mr. Caldarelli of the Complaint at his address in Georgia. Also, the Answer filed by the G eorgia lawyer was not signed by Mr. Cald arelli as required by Maryland Rule 9-202(a). There was urgency to the matter at the time that M rs. Caldarelli first met with Ms. Kreamer. Mrs. Caldarelli had received correspondence from the Georgia lawyer, Mr. Moore, basically stating that if she d idn't mo ve forw ard wit h the div orce in M aryland, Mr. Caldarelli w ould file in Georgia. Mrs. Caldarelli retrieved all of the papers and documents from her prior attorney and gave them to Ms. Kreamer within a wee k. The Ge orgia lawyer made it clear that unless the matter wa s pursued in Maryland he wou ld file in Ge orgia. Des pite the urgency of the matter as related to Ms. Kreamer by Mrs. Caldarelli, from March 20, 2003 until July 22, 200 3, Ms. K reamer did nothing to adva nce ob taining a divorc e for M rs. Caldarelli in the already pending case in this court. On July 22, 2003, Ms. Kreamer entered her appearance in the pending case in this court and she says, reviewed the Maryland court file. She, however, did nothing further until at least September 2, 2003. She never filed a Motion to Strike the Answer f iled by the Georgia lawyer despite the fact that it was easy to find out that he was not a member of the Maryland bar and that the Answer was not in proper form. When confronted with this, Ms. Kre ame r's response was that she "intended" to argue later that the Answer should be stricken but never filed a Motion making that reques t. Mr. Caldarelli do wn in Georgia stopped waiting. On June 27, 2003, Mrs. Caldarelli was served with a Complaint for a divorce and Summons filed in a Geo rgia cou rt. Mrs. Caldarelli immediately gave the documents to M s. Kreamer. There is no doubt that Ms. Kreamer had them. Thereafter, for reasons which were never explained, Ms. Kreamer prepared a pro se Answer for Mrs. Caldarelli to file in the Georgia divorce case. Ms. Kreamer does not deny preparing the pro -28- se Answer and giving it to Mrs. Caldarelli. Ms. Kreamer testified that she had no idea what Mrs. Caldarelli would do with the pro se Answer. That is simply unworthy of belief. Ms. Kreamer prepared that pro se Answer knowing full well that Mrs. Caldarelli was going to send it to the Georgia court. Ms. Kreamer did no research on Georgia law and did not even consider any effect the filing of a pro se Answ er in Georgia might have on the issue of whether or not Mrs. Caldarelli may have been consenting to the jurisdiction of the Geor gia court. Ms. Kreamer continued to do absolutely nothing. After the pro se Answer was filed in the Georgia case, on August 23, 2003, the Georgia court granted Mr. Caldarelli a divorce. At no time did Ms. Kreamer attempt to look into obtaining a Georg ia lawyer to represent Mrs. Caldarelli or at least for M rs. Caldarelli to consult. The judgment of the Georgia court did not incorporate the Property Settlement Agreement and in fact provided that both parties waived any right to any pre sent or futu re right of action against the other with regard to prope rty or debts. Af ter being co nfronted w ith this fait accom pli in Georgia, Ms. Kreamer compounded the problem by preparing and giving to M rs. Caldarelli a pro se "Motion to Vacate the Judgment of Divorce" which Mrs. Ca ldarelli filed in the Georgia case. The Separation and Property Settlement Agreement that Mrs. Caldarelli and Mr. Caldarelli had entered into and which clearly had been filed in the Harford County case and would have been, without objection, incorporated but not merged in a Maryland judgment, gave Mrs. Caldarelli certain benefits including alimony, the value of some life insurance policies, her marital portion of Mr. Caldarelli ' s pension and the marital home. Ms. Kreamer did nothing else on Mrs. Caldarelli' s behalf other than to withdraw her appearance in the Harford County case on September 3, 2004. The Separation and Property Settlement Agree ment wa s already in the H arford C ounty file. It is inexplicable, knowing that a Georgia divorce had already been granted, for Ms. Kreamer to request a hearing in the H arford County case on September 2, 2003 to take divorce testimony. When she filed that, the clerk's office recognized that the matter was contested and so ad vised her. Th e notatio n by th e cle rk's office was that she was to submit a new request which she did on September 8, 2003, again simply asking for a hearing without disclosing the existen ce of th e Geo rgia dec ree. Throughout her representing of Mrs. C aldarelli, Ms. Kream er, -29- despite agreeing to and being required to, did not submit billing statements to Mrs. Caldarelli. The first statement that Mrs. Ca ldarelli received was in September of 2004. Again, as in other cases, Ms. Kreamer unreasonably charged Mrs. Caldarelli for such tasks as "file organization" and "accounting" which was nothing more than M s. Kreamer trying to figure out how much to charge. It is obvious that Mr. Caldarelli was waiting for Mrs. Caldarelli to finalize the Maryland case and that he only filed in Georgia when that did not happen. Ultimately, Mrs. Caldarelli discharged Ms. Kreamer w ith good reason. She then retained J. Richard Moore, Esquire to represent her and to try to salvage something out of the mess in Georgia. Through Mr. Moore's efforts, Mrs. Caldarelli was able to get the house and some value from the life insurance policies. She, howev er, lost the alimony that was payable to her under the agreement and a marital portion of Mr. Caldarelli 's pension. Her loss of these things was a direct result of Ms. Kre ame r's abominable handling of her case. CONCLUSIONS OF LAW By clear and convin cing evidence, Ms. Kreamer violated the rules of professional conduct as charged by Petitioner. She incompe tently represented Mrs. Caldarelli in violation of Rule 1.1 by not exhibiting the thoroughn ess and preparation reaso nably necessary for the representation, by her failure to move to strike the Answer prepared by the Georgia lawyer in the Maryland case; by not moving forward with the Maryland case; by preparing a pro se Answer for Mrs. Caldarelli to file in the Georgia proceedings without any consideration or research as to the effect of such a filing and by failing to do anything on Mrs. Caldarelli's behalf after she found out that the Georgia divorce had been granted. Ms. Kreamer violated Rule 1.2 by failing to abide by Mrs. Caldarelli's objectives in the represen tation whic h was to m ove the Maryland case forward. Recall that the case had already been filed pro se in Maryland months b efore her re tention of Ms. Kream er. There was a Property and Separation Agreement in place and everything ha d been w orked ou t. Ms. Kreamer's failure to purse the Maryland matter on Mrs. Cald arell i's behalf upon being retained in March of 2003, demonstrates a clear lack of diligence on her pa rt in violation o f Rule 1.3. Ms. Kream er violated R ule 1.4 by failing to provide Mrs. Caldarelli with accu rate billing statem ents during the representation. -30- Ms. Kream er violat ed Ru le 1.5 by unreason ably charging Mrs. Caldarelli for things w hich are pa rt of norm al overhea d such as f ile organi zation a nd acc ountin g. I additionally find by clear and convincing evidence that Ms. Kreamer violated Rule 8.4(c) when she misrepresented that her representation of Mrs. Caldarelli did not begin until July 3, 2003 when she had previously accepted the retainer fee, withdrawn a portion of it as a non-refundable engagement fee and had received all of the docume nts that Mrs. Caldarelli had. Her neglect of Mrs . Cal dare lli's case and lack of competence as well as her misrepresentations is also conduct prejudicial to the admin istration of justic e in violation o f Rule 8.4(d). (Interna l record citations and fo otnote o mitted.) Respondent raises two exceptions to the hearing judge s factual findings. First, Respondent excepts to the judge s finding that [i]t defies belief for [Respondent] to allege that she did not consider herself representing Mrs. Caldarelli until after July of 2003. Respondent contends that while it may well have been wiser for Respondent to have refrained until after receipt of a copy of the contract sign ed by Mrs. Caldarelli befo re withdrawing the engagement fee portion of the retainer . . . , the withdrawal does not do away with th e need for M rs. Caldarelli s signature to create a viab le contract in th is instanc e. In other words, R esponde nt claims tha t her attorney-clien t relationship with Mrs. Caldarelli did not beg in until Mrs . Caldarelli signed the retainer agreement on July 3, 2003. We ov errule th is excep tion. An attorney-client relationship is formed when: 1) a per son m anif ests t o a la wyer the person's intent that the lawyer provid e legal se rvices f or the p erson; a nd . . . -31- (b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonab ly relies on the lawyer to provide the services. Attorney Grievance Comm n v. Brooke, 374 Md. 155, 174, 821 A.2d 414, 425 (2003) (quoting Restatement (Third) of the Law Governing Lawyers ยง 14 (2000 )); accord Attorney Grievance Comm n v. Siskind, 401 Md. 41, 72, 930 A.2d 328, 346 (2007)). An attorney-client relationship [ ] does not requ ire an explicit agreement. Brooke, 374 Md. at 175, 821 A.2d at 4 25. R athe r, [t ]he relationsh ip may aris e by im plica tion from a clie nt's reasonab le expectation of legal representation and the attorney's failure to dispel those expec tations. Id. In the case sub judice, Mrs. Caldarelli manifested her intent that Respondent provide legal services in Mrs. Caldarelli s divorce, on or about March 25, 2004, by (1) handing over to R espondent the doc uments and pap ers necessary to the representation, and (2) remitting the $1,3 00.00 r etainer f ee. While the written retainer agreement was not signed by Mrs. Caldarelli until July 3, 2003, Mrs. Ca ldarelli clearly expr essed her d esire to have Respondent provide her legal represen tation in March 20 03. Responde nt s actions in the acceptance of the papers and fees manifest Respondent s intent to provide legal representation to Mrs. Caldarelli. In addition, Re spondent s withdra wal of the $600 nonrefundab le engagement fee on April 14, 2003, further evid ences Re sponden t s intent to provide Mrs. Ca ldarelli legal representation. Therefore, we hold that the hearing judge was correct in finding that Respondent had established an attorney-client relationship prior to July 3, 2003 . -32- Respondent next excepts to what the Respondent perceives as attribution to her of responsibility for activities and events which were initiated and/or occurred long before her relationship with M rs. Caldarelli. Respondent complains that [i]t was not [R]espondent who created all the problems that Mrs. Caldarelli had when she first approached Respo ndent. Respondent states that she was not the one who permitted Mrs. Caldarelli s deteriorated martial situation to languish, literally for years, without any effective measures being undertaken; who lost or misplaced a Separation and Property Settlement Agreement that had been reached b etween M rs. Caldarelli an d her husb and; or, w ho failed to record a deed for th e former C aldarelli marital re sidence co nveying M r. Caldarelli s inte rest therein to [Mrs. Caldarelli]. Respondent s exception misses the point of the hearing judge s findings and instead attempts to place the responsibility on Mrs. Caldarelli for Respondent s failure to act appropriate ly on Mrs. Caldarelli s case. The record shows that, despite accepting Mrs. Caldarelli s documents and retainer fee on or about March 25, 2003, and then withdrawing the $600 non-refundable legal engagement fee on April 14, 2003, R esponde nt did little to advance Mrs. C aldarelli s divorc e throu gh the c ourt system . It was not u ntil July 22, 2003, that Respon dent entere d her app earance in the pendin g divorce c ase, despite M rs. Caldarelli having expressed urgency in resolving the case. At their initial meeting in March, Mrs. Caldarelli had informed R espondent that she ha d recently received correspond ence from M r. Caldarelli s lawyer in Georgia stating that if she did not move the divorce in M aryland -33- forward, Mr. Cald arelli would se ek a divorc e in Georgia. Nevertheless, Respondent did not act upon Mrs. Caldarelli s case. Accordingly, the exception is overruled. Respon dent next e xcepts to the hearing jud ge s findin gs that: Thereafter, for reasons which were never explained, Ms. Kreamer prepared a pro se Answer fo r Mrs. Caldarelli to file in the Ge orgia divorce case. Ms. Kreamer does not deny preparing the pro se Answer and giving it to Mrs. C aldarelli. Ms. Kreamer testified that she had no idea wh at Mrs. Caldarelli would do with the pro se Answer. That is simply unworthy of be lief. Ms. Kreame r prepared that pro se Answer knowin g full well th at Mrs. C aldarelli was going to send it to the Geor gia court. M s. Kream er did no res earch on G eorgia law and did not even consider any effect the filing of a pro se Answer in Georgia might have on the issue of whe ther or not M rs. Caldarelli may have been c onsenting to the jurisdictio n of the G eorgia cou rt. Ms. Kreamer continued to do absolutely nothing. After the pro se Answer was filed in the Georgia case, on August 23, 2003, the Georgia court granted Mr. Caldarelli a divorce. At no time did Ms. Kreamer attempt to look into obtaining a Georg ia lawyer to represent Mrs. Caldarelli or at least for Mrs. Caldarelli to consult. The judgment of the Georgia court did not incorporate the Property Settlement Agreement and in fact provided that both parties waived any right to any present or future right of action against the other with regard to property or debts. Afte r being con fronted w ith this fait accom pli in Georgia, Ms. Kreamer compounded the problem by preparing and giving to M rs. Caldarelli a pro se "Motion to Vacate the Judgment of Divorce" which Mrs. Ca ldarelli filed in the G eorgia case. (Internal record citations omitted.) Respondent claims these findings are in error because it is undisputed that [Respondent] promptly told Mrs. Caldarelli that she needed a lawyer in Georgia. Respondent contends that she should not be held responsible for Mrs. Caldarelli s failure to obtain legal representation in Georg ia. Respon dent s exce ption again misses the poin t of the h earing ju dge s f actual f inding s. The hea ring judge s imply stated that -34- he did not believe Respondent s testimony that she did not know that Mrs. Ca ldarelli wou ld file the pro se Answer in Georg ia when she prepared and gave the document to M rs. Caldarelli. As we have previously stated, the hearing judge m ay elect to pick and choose which eviden ce to rely u pon. Harris, 403 Md. at 158, 939 A.2d at 742. In this case, the hearing judge did not believe Respondent s version of events. The exception, therefore, is overruled. Respondent excepts to the hearing judge s finding that Respondent sought a hearing in the Circuit C ourt for H arford C ounty in order to take testimony with regard to the divorce complaint filed in that court witho ut disclosing to the Cou rt the existenc e of the G eorgia divorce decree. Respondent contends that her action in requesting a hearing in the Maryland divorce case is hardly inexplicable as sh e was trying to challenge th e Georg ia divorce in Maryland. She argues that while such action may not have been the most appropriate way to accom plish wha t she sough t to do, . . . and m aybe a tactical erro r, [ ] it should not be held to constitute unethical behavior. Respondent s exception does not address the underlying factual finding; rather, it attempts to justify her decision to request a circuit court hearing after a Georgia court had issued a divorce decree, terminating the Caldarelli s marriage. Thus, the exception is overruled. Respondent next excepts to the hearing judge s finding that [t]he Separation and Property Settlement Agreement that Mrs. Caldarelli and Mr. Caldarelli had entered into and which clearly had bee n filed in the Harford County case and would have been, without -35- objection, incorporated but not merged in a Maryland ju dgment, g ave Mr s. Caldarelli ce rtain benefits including alimony, the value of some life insurance policies, her marital portion of Mr. Caldarelli's pension and the marital home. Specifically, Respondent excepts to the hearing judge s use of the phrase gave Ca ldarelli certain benefits, claiming that it appears to be an expression of the hearing judge s opinion or pred iction as to what the low er court would have done with respect to certain pro visions of th e Caldare lli settlement ag reement, rather than a factual find ing. The d uty of the hea ring judge in attorney grieva nce cases is to consider the evidence placed before him or her and render an opinion regarding the factual findings and conclusions of law in that case. The hearing judge did just that in this case. We overru le this ex ception . Last, Respondent excepts to the hearing judge s use of the adjective abominable when referring to Respondent s handling of the case. Respondent complains that the disparaging adjective w ould tend to put Resp ondent in a n unfavo rable light. In the instant case, we do not find the hearing judge s use of abominable to be inappropriate or unreasonable. In the instant case, Mrs. Caldarelli lost alimony and the martial portion of her husband s pension as a result of Respondent s failure to represent Mrs. Caldarelli in a competent fashion. Under the circumstances, the hearing judge s characterization of Responden t s handling of Mrs. Ca ldarelli s affairs is both reaso nable and consistent with the facts. W e overr ule this e xceptio n. -36- VI. THE COMPLAINT OF MICHAEL D. BOONE As to the complaint of Michael D. Boone, the hearing judge made the following findings of fact and conclusions of law: In the Boone matter, Respondent is charged with violating Rules 1 .1,1.3, 1.4 ,1.16 an d 8.4. FINDINGS OF FACT On May 12,20 03, Mr. B oone retain ed Ms. K reamer to represent him in a separation and divorce matter. He paid Ms. Kreamer a $2,000.00 retainer of which $600.00 was considered to be a non-refu ndable en gageme nt fee. The reafter he w as to be charged at the rate of $150.00 per hour plus expenses. Mr. Boone was to be billed on a "monthly or quarterly basis as applicable" recapping the services rendered and expenses advanced. Ms. Kreamer agreed that she would make every effort to expedite Mr. Boone's case promptly and efficiently according to the highest legal and eth ical stan dards. Despite his inquiries, during Ms. Kreamer's representation of Mr. Boone between May 12, 2003 and March of 2004, he never received a billing statem ent. A Master's Hearing was scheduled for January 22, 2004 at 9:00 a.m. Mr. Boone was present. Ms. Kreamer, however, failed to appear in a timely fashion for the Mas ter's Hearing. She later appeared 30 minutes late. Her explanation for not appearing timely was that she was involved in another domestic matter which had been scheduled for that same morning but which Ms. Kreamer thought was scheduled for the a fternoo n. On June 1 2, 2004 , Judge Carr issued an O rder fixing c hild support and a wage lien against Mr. Boone in the amount of $3,000.00 per month. Mr. Boone had no prior know ledge of th at Order an d in fact learned of it from his estranged wife. Ms. Kreamer did not provide a copy of the Order to Mr. Boone until September 9, 2004. He had no idea that the matter was before Judge Carr and was not told by Ms. Kreamer. In the interim, between Judge Carr's Order of June 12, 2004 and Mr. Boone's receipt of a copy of the Order on September 9, 2004, he le ft several m essages for Ms. Kr eamer ask ing her to contac t him bu t none w ere retu rned. There was some exchange between Mr. Boo ne and Ms. -37- Kreamer and Mrs. Boone and her atto rney concern ing a possib le settlement. For reasons which Ms. Kreamer could not explain, without consulting or reviewing the matter with Mr. Boone, Ms. Kreamer submitted a proposed Property and Separation Agreem ent to opposing counsel. There was a conference scheduled before Judge Whitfill on August 11, 2004 . Even tho ugh she w as still counsel of record, Ms. Kreamer failed to appear. Mr. Boone appeared pro se. In point of fact, Mr. Boone was so disgusted with Ms. Kreamer's actions that he decided to go to the August 11th conference on his own. CONCLUSIONS OF LAW By clear and convincing evidence, I find that Ms. Kreamer violated the rules of professional conduct as charged. She incompe tently represented Mr. Boone in violation of Rule 1.1 by not exhibiting thoroughness and preparation reasonably necessary for representation of Mr. Boone by her failure to timely appear for the Master's hearing; by failing to advise Mr .Boone of Judge Carr's Order of June 12 , 2004; and by failing to app ear at the conference b efore Judge Whitfill on August 11, 2004 even though she was still counsel of record. In addition, Ms. Kreamer's failure to advise Mr. Boone of Judge Carr's Order of June 12, 2004, for over three months demonstrates an appalling lack of diligence in violation of Rule 1.3. She violated Rule 1.4 by her failure to co mmunicate w ith Mr. Boone and keep him in formed of the status o f the matter, despite Mr. Boo ne' s efforts to find out and discuss with Ms. Kreamer the Order of June 12, 2004, which he learned from his wife. Further, throughout the representation, Ms. Kreamer did not pro vide M r. Boone w ith billing statements on how his retainer was being used. She violated Rule 1.16(d) by failing to appear at the August 11, 2004 hearing. She was still counsel of record at that time and had a duty to appear in court, having been given appropriate notification. Additio nally, her failure to appear in cou rt; her failure to commu nicate with Mr. Boone concerning the Order for three months; and her failure to consult and discuss with Mr. Boone any settlement proposal before submitting it to opposing counsel was clearly conduct prejudicial to the administration of justice in v iolation of R ule 8.4( d). (Internal record citations omitted.) -38- Respon dent first exc epts to the he aring judge s findings th at A Master's Hearing was scheduled for January 22, 2004 at 9:00 a.m. Mr. Boone was pres ent. Ms. K reamer, ho wever, fa iled to appe ar in a timely fashion for the Master's Hearing. She later appeared 30 minutes late. Her explanation for not appearing timely was that she was involved in another domestic matter which had been scheduled for that same morning but which Ms. Kreamer thought was scheduled for the afte rnoon . Respondent contends that while sh e was late in arriving at the Master s hearing on January 22, 2004, because of her confusion over her hearing schedule for that day, she does not believe her lateness in an y way occasion ed any detrim ent to her clien t. Respon dent points out that [a]t the close of the hearing[,] the [M]aster complimented both counsel for their presen tations. Respondent s exception does not address the factual finding of the hearing judge; rather, the exception attempts to e xplain wh y Respond ent s lateness did not amount to a violatio n of R ule 1.1 (Competence ). In fact, Respondent admits to arriving late at the pre-trial c onfere nce on Januar y 22, 200 4. Thu s, we o verrule the exc eption. Next, Respondent excepts to the hearing judge s finding that Respondent did not inform Mr. Boone about the June 12, 2004, Order fixing child support and entry of a wage lien against him in the amount of $3,000.00 per month. Respondent contends that she attempted to inform Mr. Boone of the Order in a series of letters dated June 29, July 19, 23, 28, and A ugust 3 and 25 , 2004, b ut that M r. Boone would n ot respond to her efforts to commu nicate with him. Respondent claims that the court file contains this above-mentioned correspondence. It is clear from the opinion that the hearing judge did not believe -39- Responden t s version of the events concerning the June 12, 2004, Order. Again, it is within the hearing judge s province to pick and choose the evidence to believe. The hearing judge was not required to rely upon the testimony of Respondent. In this case, the hearing judge did not believe that Respo ndent info rmed or atte mpted to in form M r. Boone o f the child support order. In addition, a review of the record discloses only one letter from Respondent to Mr. Boone, dated August 25, 2004. We, therefore, overrule the exception. Respondent next excepts to the hearing judge s finding that Respondent, without consulting or informing Mr. Boone, submitted a proposed Property and Settlement Agreement to Mrs. Boone and her counsel. Respondent contends that [i]f in fact Respondent submitted to opposing counsel a proposal of which Mr. Boone was not made aware, the record d oes not esta blish that M r. Boone thereby was adversely affected in any way. Responden t s exception does not address the factual finding. The hea ring judge d id not make an y findings as to whe ther Mr. Boon e was adversely affected by Respondent s actions. Rather, the hearing judge found that Respondent submitted a proposal to opposing counsel without informing or consulting with Mr. Boone. Respondent s explanatio n does not contradict this factual finding. The exception is overruled. Last, Respondent excepts to the hearing judge s finding that she failed to appear at the August 11, 2004, conference even though she was still counsel of record. Respondent contends that the record indicates that M r. Boone had effectively discharged her prior to the August 11, 2004, conference. Respondent s exception is overruled. On August 11, 2004, -40- Respondent was still counsel of record for Mr. Boone. The hearing judge made no findings that Mr. Boone terminated his relationship with R espondent prior to August 11, 2004. If Respondent believed th at Mr. Bo one effe ctively terminated th e attorney-client re lationship prior to August 11, 2004 , Respon dent shou ld have m oved to strik e her appe arance as h is couns el, prior to the hea ring. Sh e failed to do so . VII. THE C OMPL AINT O F PATR ICIA GO ODW IN As to the complaint of Patricia Goodwin, the hearing judge made the following findings of fact and conclusions of law: With regard to the matter of Patricia Goodwin, Ms. Kreamer is charged with violating Rules 1.1, 1.3, 1.4, 3.3, 8.1, and 8.4. FINDINGS OF FACT At the outset it should be noted that the testimony of Mrs. Goodw in was done by virtue of a de bene esse deposition taken on June 26, 2007, after appropriate notice. M y findings of fact herein are based not just on the documents presented, but also the testimony of Mrs. Good win as reflecte d in her depos ition. M rs. Goodwin is disabled and ca nnot dr ive. In ad dition, h er husb and is v ery ill. Mrs. Goodw in appeared in this court on o ne of the prior hearing dates which was continued but could not appear for the rescheduled trial which began on August 13, 2007 because of her medical condition and he r husba nd's me dical co ndition . On November 2, 2000, Mrs. Goodwin retained Ms. Kreamer to handle her divorce case. She paid Ms. Kreamer a retainer of $650.00 of which $260.00 was considered to be a non-refu ndable engagement fee. Mrs. Goodwin was to be billed on an hourly basis at the rate of $130.00. Ms. Kreamer was to submit bills to Mrs. Goodw in on a monthly or quarterly basis and agreed to make every effort to expedite client's case prom ptly and efficie ntly according to the highest legal and ethical standards . On November 15, 2000, Ms. Kreamer filed a Complain t for Absolute Divorce on behalf of Mrs. G oodwin in the Circuit Court for -41- Cecil County. Mr. Goo dwin was serv ed on February 13, 20 01. In March of 2001, Ms. Kreamer prepared a request for Orde r of Def ault to file in the Circuit Court for C ecil County. Howev er, the request for Order of Default was never filed with the court by M s. Kreamer. When Mrs. Goodwin inquired of Ms. Kreamer as to the status of the request for Order of Default, Ms. Kreamer misrepresented to her that she was waiting on the judge to sign it . Not bein g satisfied w ith that explanation, Mrs. Goodwin contacted the Circuit Court fo r Cecil County and learned that the Order of Default had never been filed. When Mrs. Goodwin confronted Ms. Kreamer about why the Order of Default had never been filed with the court, instead of giving her a direct answ er that she ha d simply negle cted to do it, Ms. Kreamer told Mrs. Goodwin that another request had to be filed because, as Ms. Kreamer put it, the date on the March 2001 request was too old. Instead of immediately proceeding with the Request for Order of Default, Ms. Kreamer did nothing until August 7, 2001, when she prepared a second Request for Order of Default. How ever, she did not file that Request for Order of Default with the court until seven months later on March 13, 2002. Ms. Kreamer's explanation as to why she was so d ilatory in filing the requests for Orders of Default was that she wanted to wait to see if Mr. Goodwin would sign over his interest in the marital home to Mrs. Goodwin. However, that explanation was clearly contradicted by Mrs. Goodwin as it was paramount to Mrs. Goodwin that the matter move alo ng prom ptly so that the matter of the residence c ould be resolve d. Ms. Kreamer had to have known that Mr. Goodwin had been served when she prepared the March 2001 Request for Default. She later tried to explain that in August of 200l, when she prepared the second Order of Default, she contacted the court to find out if Mr. Goodw in had been served. When she was q uestioned a s to why she could prepare an Order of Default in March of 200l which, of course, would require that the Defend ant had been serv ed and then turn around later to find out whether the Defendant had been served, Ms. Kreamer described it as that she could prepare all the documen ts necessary at the begin ning of the representatio n. That is cle arly an explanation that is unworthy of belief. Again, when asked why she choose to prepare a second Order of Default, Ms. Kreamer testified that she did so because she simply choose to. Again it must be kept in mind that even the second Orde r of Def ault was n ot filed until March 13, 2002. -42- Ms. Kreamer's attempted explanation that she held off filing an Order of Defa ult until March of 2002, that she was trying to get Mr. Goodw in to sign over the home to Mrs. G oodwin is simply not true. Ms. Kreamer also testified that she was under the impression that the parties had recon ciled. That is c learly not true. On March 14, 2002, the day after she u ltimately filed an O rder of D efault, she sent a letter to Mrs. Goodwin explaining that she had misunderstood that the parties had reconciled. The credible testimony was that there was never any reconciliation or discussion of reconciliation between M r. Goodw in and Mrs. Goodwin since they separated in October of 1999. While it is true they may have had some incidental contact, there was clearly never any reco nciliation and Ms. Kre amer took no steps to determine if that was true. It is also a mystery as to w hy she even felt there had been a reconciliation. One of Mrs. Good win's primary concerns was to get the former marital residence in her name. A deed to accomplish this was prepared by Respondent. On October 14, 2003, the Goodwins executed the deed c onveying M r. Goodw in' s interest in the m arital home to Mrs. Goodwin. The Goodwins then took the deed, prepared by Respondent, to a bank in Rising Su n, Maryland to have it notarized. The nota ry did not sign a s a witness to either of th e Goodwins' signatures. Nevertheless, by letter of October 17, 2003, Mrs. Goodwin sent the deed to Respondent along with a check in the amount of $275.00 for the preparation of the deed and the cost of recording. The Respondent deposited the $275.00 check in her escrow account on October 22, 2003. Sometime thereafter, the Respondent signed as having witnessed both of the Goodwins' signatures even though she was not present when the deed was executed. A substantial period of time passed and ultimately Mrs. Goodw in contacted Ms. Kreamer to see why the matter had not moved forward. In respons e to her inqu iry, Ms. Kream er told Mr s. Goodw in that she had n ot recorded th e deed be cause she had not ac tually witnessed them executing the deed and would get in trouble . Ms. Kreamer told Mrs. Goodwin that another deed would have to be prepared and executed. Mrs. Goodwin did not receive the "new" deed to be re-executed by her and her husband until May of 2004. Ms. Kream er also told M rs. Goodw in that not on ly would the deed have to be re-executed but that she would need Mr. and Mrs. Goodw in to execute a n exemp tion certificate to save on recordation costs. The exe mption ce rtificate require d Mrs. G oodwin to attest -43- under oath that the p roperty wou ld be her principal residence. T here was in fact no reason for this as the deed was for no consideration because it was a transfer between spouses a nd no tran sfer tax w ould be due. Ms . Kreame r's suggestion that the matte r was add itionally delayed because o f this Aff idavit is simply not credible. In addition, Ms. Kreamer knew at the time that Mrs. Goodwin was not living at that residence and intended to sell it. Nevertheless, she told Mrs. Goodwin that such an Affidavit would have to be executed. Although Ms. Kreamer had prepared another deed, the deed actually recorded was the first one that had been executed on October 14, 2003. The deed was not recorded until June 24, 2004 and was recorded bearing Ms. Kreamer's signature as a witness to the Goodwins' signatures. Ms. Kream er's explanatio n for this was that she had signed on the wrong line because she is left handed is simply not credible. During the time that Ms. Kreamer represented Mrs. Goodwin, Mrs. Goodw in continua lly asked Ms . Kreame r for the status of the divorce matter. Ms. Kreamer never responded or gave an accurate answer to Mrs. Goodwin as to why she had never filed the Request for Order of Default that had been prep ared in March o f 2001. In addition she failed to timely file the second O rder of Default in August of 2001 and likewise failed to respond to Mrs. Goodwin's request concerning the progress and status of the case. Ms. Kreamer also did not timely resp ond to M rs. Goodwin' s continuing inquiries as to why the deeds concerning the transfer of the residence had never been recorded. M s. Kream er also failed to comm unicate with Mrs. Goodw in regarding the cancellation of her scheduled hearing. Mrs. Goodw in went to the Circuit Court on April 17, 2002 with her mother as a witness thinking there would be a hearing on the divorce. Actually the hearing had been cancelled, but Ms. Kreamer never advised Mrs. Goodwin that it had been canc elled . Ms . Kre ame r's billings statements show that on April 15, 2002, she called to cancel the Master's Hearing, however, there is no corresponding contemporaneous entry that she no tified Mrs. G oodwin of that fact. Ms. Kreamer's own billing statements reflect that on April 17 , 2002, she in fact got a c all from M rs. Goodw in inquiring as to what happened with regard to the hearing. Throughout the some three and one half years that Ms. Kreamer represented Mrs. Go odwin, sh e did not su bmit period ic billings statements. Th e first billing statem ent that M rs. Goodw in -44- received was dated M ay 27, 2004, showing a balance due of $1,627.32. On June 23, 2004, Ms. Kreamer submitted to Mrs. Goodw in a second invoice w hich purp orted to list exa ctly how much time was spent for each task. A careful review of the June 23, 2004 invoice sent by Ms. Kreamer shows several breaks in her representation of Mrs. Goodwin. Specifically there was a two mo nth break between November 15, 2000 and January 10, 2001; a four month break betw een Ma rch 30, 200 1 and A ugust 1, 20 01; a four month break betw een Octo ber 16, 200 1 and Fe bruary 14, 20 02; a three month break between September 20, 2002 and December 10, 2002; a ten month break between January 3, 2003 and October 1, 2003; and a two month break between October 22, 2003, the date she deposited the $275.00 check in her escrow account for the deed, and December 19, 2003. Thereafter there was another five month break between Dec emb er 19 , 200 3 and M ay 5, 2004, when Ms. Kreamer finally called Mrs. Goodwin concerning the residence Affidavit that she insisted had to be executed in order to record the October 14, 2003 deed. A careful rev iew of Ms. Kre amer's June 23, 2004 , invoice to Mrs. Goodwin shows that Ms. Kreamer charged Mrs. Goodwin for accounting services which Ms. Kreamer described as having an employee of hers or herself figure out how much time she had spent representing Mrs. Go odwin. S he did not keep s eparate time sheets for Mrs. Goodwin. She tried to construct bills from notations she made in calendars. For example, she billed Mrs. Goodwin for 35 minutes on October 4, 2004 for accounting. She included in that notation attempts to call clients or letters to client but, when asked for a break do wn, she w as unable to provide it because she did not have contemporaneous records. She did the same thing to Mrs. Go odwin on March 12, 2002 and April 4, 2004, billing her a total of an hour and five minutes for accounting. CONCLUSIONS OF LAW By her conduct in the Goodwin matter, I find by clear and convincing eviden ce that M s. Krea mer vio lated R ules 1.1 , 1.3, 1.4, and 8.4(a), (c) and (d). It should be noted that Bar Counsel withdrew the alleg ations c oncern ing Ru les 3.3 a nd 8.1 Ms. Kreamer incompetently represented Mrs. G oodwin in violation of Rule 1 .1 by not exhib iting the thoroughness and preparation reasonably necessary for the representation by her failure to understand what was required in order to transfer the marital home -45- to Mrs. Goodwin. Ms. Kreamer lacked any comprehension about the fact that the deed was for no consideration because it was an inter-spousal transfer and that no transfer of taxes would be due. Ms. Kreamer insisted that the signatures on the deed were no good and the deed would h ave to be re -executed when in fact it had already been notarized. She failed to file the March 2001 Request for Order of Default and the August 2001 Request for Order of Default in any kind of a timely fashion. This clearly demonstrates a lack of diligence in violation of Rule 1.3. Ms. Kreamer violated Rule 1.4 by failing to maintain commu nication with Mrs. Goodwin throughout the representation concerning the progress of her case and failing to respond to Mrs. Goo dwin's inquiries. She also f ailed to adv ise Mrs. G oodwin concerning the Master's Hearing which was scheduled for April 17, 2002 and failing to advise her in a timely manner concerning the situation concerning the deed. She also failed to submit regular billings statements to Mrs. Goodwin throughout the representation even though she was obligated to do so. She also clearly violated R ule 8.4(c) w hen she d eliberately misrepresented to Mrs. Goodwin that she was "waiting on a judge to sign" the March 2001 Request for Order of Default when in fact it had never been filed. Her lack of diligence an d compe tence, as w ell as her misreprese ntations to Mrs. Goodwin, also amount to conduct prejudicial to the admin istration of justic e in violation of Rule 8.4(d). Respondent submits nine exceptions to the hearing judge s findings as to Mrs. Goodw in s complaint, several of w hich we shall com bine and address tog ther. First, Respondent excepts to the hearing judge s finding that she was dilator y in filing requests fo r an order o f default on behalf of Mrs. Goodwin. Respondent contends that the delay in filing the requests for an order of default w as not due to her, but rath er due to instructions from Mrs. Goodwin to refrain from doing anything that might cause M r. Goodw in to change his mind regarding the conveyance of the marital home to Mrs. Goodwin. Respondent states: It took [Respondent] substantial time and effort . . . to even -46- send a co py of a defa ult request to M r. Goodw in and to tell him it would b e filed, if he d id not carry out his agreement. We shall overrule Respondent s exception. As we have previously stated and as R esponde nt points ou t in her exce ption, the hea ring judge is empowered to pick and choose whom and what he will or will not believe and he need not explain his decision in those regards. In the instant m atter, the hearing judge considered and accep ted the te stimon y of Mr s. Goo dwin o ver Re spond ent s ve rsion of the eve nts. Next, Respon dent exce pts to the hearing judge s finding that Respondent signed the Goodwins deed as a witness to either of the Goodwins signatures. The hearing judge stated that Responden t s explanation . . . that she had s igned on th e wrong line becaus e she is lefthanded is simply not credible. Respondent contends that her signature on the witness line was accidental and her actions after her signing on the witness line support her contention. Specific ally, Respon dent asserts that after mistakenly signing the witness line, she told Mrs. Goodw in that anothe r deed w ould have to be prepared and executed due to her mistake. As we have prev iously stated, it is with in the provinc e of the he aring judge to consider and either accept or reject the evidence presented before him. In this matter, the hearing judge did not accept Respon dent s exp lanation of the error, espe cially in light of her knowingly filing the deed with her signature on the witness line. Her actions in reco rding the deed w ere incons istent w ith her sta temen t that a ne w dee d need ed to be prepar ed. Respondent next exce pts to the hearing judge s fin ding that R esponde nt wrong ly told Mrs. Goodwin that an exemption certificate w ould need to be executed so that M rs. Goodw in -47- could save on recordation costs. The hearing judge explained that there was no need for the certificate because the deed was for no consideration because it was a transfer between spouses and [thus] no transfer tax was due. In addition, the hearing judge noted that such an affidavit could not be used because Mrs. Goodwin was not living at that residence and intended on selling it as soon as she receive d the new dee d. We overrule R espondent s exception. The hearing judge was correct in asserting that Respon dent was wro ng with regard to the req uireme nts for r ecordin g a dee d betw een spo uses. The transfer of the martial home from Mr. Goodwin to Mrs. Goodwin was exempt from both recordation taxes and transfer taxes under Maryland Tax-Property Article ยงยง 12108 (d) and 13-207 (a)(3), respectively. Section 12-108 (d), entitled Transfers between spouses, provides: An instrument of writing that transfers the property between spouses or form er spou ses is no t subjec t to recor dation ta xes. Md. Code (1 985, 200 7 Repl. Vol.). Section 13-207 (a)(3), entitled Exem ptions para llel to recordation tax exem ptions, prov ides that [a] n instrume nt of writing is not subjec t to transfer tax to the same extent that it is not subject to recordation taxes under[] ยง 12-108(d) of this a rticle (Tr ansfer betwe en spo uses). Under the plain language of these sections, it is clear that Mrs. Goodwin did not need to execute an affidavit pr ofessing h er intent to prim arily reside in the m artial house to be eligible for the transf er and reco rdation tax e xemptio n. Indeed, the statutory provision manifests no other requirement for the exemption than the current or former marriage of the -48- transferor and transferee. Therefore, it is clear that Respondent s legal advice concerning the trans fer of th e martia l home from M r. Goo dwin to Mrs. G oodw in was incorre ct. Respondent also excep ts to the hearing judge s finding that Respondent did not keep Mrs. Goodwin informed and provided inaccurate answers as to the status of the divorce matter. Respondent contends that there may have been an occasion when Respondent overlooked reporting an item of information regarding the case, she generally kept Mrs. Goodwin reasonably appraised of significant developments. Respondent claims that Mrs. Goodw in knew R esponde nt was ho lding the requests for an order of default pending Mrs. Goodw in s consent to file them with the Circuit Court. We have previously addressed Responden t s contention . The hear ing judge re jected Res ponden t s version of the events concerning the filing of the request for an order of default, which was within his province to do so. Therefore, the exception is overruled. Last, Respondent excepts to the hearing judge s finding that Respondent did not submit periodic billing statements to Mrs. Goodwin during the course of her representation. The hearing judge noted that, according to the retainer agreement between Respondent and Mrs. Goodw in, Respon dent wa s to submit bills to Mrs. Go odwin o n a month ly or quarterly basis. The hearing ju dge then s tated the follo wing co ncerning R esponde nt s failure to submit per iodic billing state ments to M rs. Goodw in: Throughout the some three and one half years that Ms. Kreamer represented Mrs. Go odwin, sh e did not su bmit period ic billings statements. The first billing statement that Mrs. G oodwin received was dated May 27, 2004, showing a balance due of -49- $1,627.32. On June 23 , 2004, Ms. Krea mer submitted to Mrs. Goodw in a second invoice which purported to list exactly how much time was spent for each task. A careful review of the June 23, 2004 invoice sent by M s. Kreamer shows several breaks in her representation of M rs. Goo dwin. Specifica lly there was a tw o month break between November 15, 2000 and January 10, 2001; a four month break b etwee n Ma rch 30, 2 001 an d Aug ust 1, 2001; a four month break b etwee n Octo ber 16, 2 001 an d Febr uary 14, 2 002; a three month break between September 20, 2002 and December 10, 2002; a ten month break between January 3, 2003 and October 1, 2003; and a two month break between October 22, 2003, the date she deposited the $275.00 check in her escrow account for the deed, and December 19, 2003. Thereafter there was another five month break between December 19, 2003 and May 5, 2004, when Ms. Kreamer finally called Mrs. Goodwin concerning the residence Affidavit that she insisted had to be executed in order to record the October 14, 2003 deed. Respondent contends that while she may not have s ubmitted sta tements to M rs. Goodw in as often as the retainer ag reement p rovided, sh e did subm it billing stateme nts to Mrs . Goodw in periodic ally. We fin d that R espon dent s e xceptio n is with out me rit. Respondent does not contest the hearing judge s findings th at she did no t submit billing statements as often as she promised she would do; indeed, she admits to failing to submit billing statements to Mrs. Goodw in as often as she had prom ised, accord ing to the term s of the retain er agreem ent. Respon dent, howev er, attempts to m itigate her contrac tual failure by no ting that she d id submit at least two billing statements during the course of the representation.18 18 The In addition, Respondent argues that the hearing judge should not have complained about both Res ponden t s breaks in representation and about Responden t s failure to sub mit statements d uring those breaks. R esponde nt points out: [I]f the intervals alluded to [by the hearing judge] were in fact breaks in representation, there would seem to be no need (contin ued...) -50- excep tion is the refore o verrule d. VIII. EXCEPTION REGARDING HEARING JUDGE S CONCLUSION THAT RESPONDENT S FEES AND BILLING PRACTICES VIOLATE THE M RPC Respondent excepts to the hearing judge s conclusion that her billing practices violated provisions of the MRPC. The hearing judge concluded that Responden t s practice of billing clients for time spent c ompleting her time she ets what the Respondent referred to as accounting services violated MRP C 1.5. The hearing judge opined that [t]he se are matters of overhead in any law office. Respondent contends that there is substantial authority to the effect that a lawyer is entitled ( and in som e instances e ven requ ired) to include in his or her billings time spent in determining the amount of the fee involved and in preparing his or her request for payment. The issue of whether an attorney may charge a client for a ccounting services is of first impression in this S tate. Indeed, o ur research indicates that n o other cou rt in this country has published an opinion dealing w ith this very issue. Moreover, the American Bar Association s Model Rules of Professional Conduct provide no specific guidance concernin g attorneys ability to ch arge clie nts sepa rately for th is servic e. 18 (...continued) to submit billing s to Mrs. G oodwin . We agre e that if Respon dent did not perform any services during certain intervals, there would be no reason to issue a billing statement. T his argumen t, howev er, does no t persuade u s to sustain the exception because Respondent admits to failing to live up to her contractual obligations to issue Mrs. Goodwin either month ly or quart erly billing s tateme nts. -51- Respondent relies on five cases: Pennsylvania v. Delaw are Valley Citizens C ouncil for Clean Air, 478 U.S. 546 (1 986); Hensley v. Eckerhard, 461 U.S. 424 (1983); White v. New Hampshire Dep t of Employment Services, 455 U.S. 445 (1982); Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 1 69 (4th Cir. 1994) ; Hendrickson v. Branstad, 934 F.2d 158 (8th Cir. 1991). The cases are inapposite. They do not speak to the ability of an attorney to bill clients directly and separately for overhead services or for time spent preparing a billing statement. Rather, the cases involve the awarding of attorney s fees for work performed by counsel during an administrative proceeding, see Pennsylvania v. Delaware Valley Citizens Counc il for Clean Air, supra, and the awarding of attorney s fees pursuant to fee shifting statutes, see Rum Creek Coal Sales, Inc. v. Caperton, supra; Hensley v. Eckerhard, supra; White v. New Hampshire Dep t of Employment Services, supra; Hendrickson v. Branstad, supra. We be gin our analysis w ith a revi ew of MR PC 1.5 . MRPC 1.5 (a) requires that an attorney charge a c lient reasona ble fees an d sets forth various factors to be co nsidere d in dete rmining reason ablene ss. The Ru le deals not on ly with the determination of a reasonable hourly rate but also with the reasonableness of costs and the total charge billed to the client. While the Rule clearly allows attorneys to charge for work performed during the representation and to seek reimbursement for costs of services or expense s undertak en during the represen tation, we do not find it reasonable, under the circumstances presented, for Respondent to separately charge her clients for accounting service s. We view accounting services as an overhead expense incidental to the practice -52- of law. As the American Bar Association s Standing Committee on Ethics and Professional Respon sibility expressed in Formal Opinion 93-379, entitled Billing for Professional Fees, Disbursements and Other Expenses : When a client has engaged a lawyer to provide professional services for a fee (whether calculated on the basis of the number of hours expended, a flat fee, a contingent percentage of the amount recovered or otherwise) the client would b e justifiably disturbed if the lawyer submi tted a bill t o the clie nt whic h includ ed, beyond the professional fee, additional charges for gen eral office overhead . In the absenc e of disclos ure to the clien t in advance of the engagement to the contrary, the client should reasonably expe ct that the lawyer s cost in maintaining a library, securing malpractice insurance, renting of office space, purchasing utilities and the like would be subsumed within the charges the lawyer is making for professional services. We agree with the sentiment of the ethics opinion and the hearing judge in this matter absent advance d isclosure to and consent of the client or special circumstances, the client should reasonably expect that the lawyer s costs and expenses in maintaining his or her practice of law would be subsumed within the charges the lawyer is billing for professional services. In other word s, the ordinary an d usual co sts of opera ting a law o ffice ren t, utilities, accounting and administrative services and the like should not be ind ividually billed to the client, in ad dition to a ch arge for leg al representa tion, absent some other extenuating circum stances , which are not p resent in this case . It is the attorney s hourly rate or case fee that constitutes the professional fee that is charged for all of the services rendered. In addition, we believe that a lawyer s billing practices implicate the principles of trust and confidence which are fundam ental to the legal profession. The lawyer s conduct -53- should be such as to promote the client s trust of the lawyer and of the legal profession. ABA Comm. on Ethics and Profe ssional R espon sibility, Form al Op. 3 79 (19 93). Clients hire attor neys to represent them in legal m atters and to s olve the ir legal p roblem s. Clients do not hire attor neys w ith th e exp ectation that t hey will be charged fo r the attorney s tim e in preparing a bill for the services rendered. Administrative tasks, like accounting services, are best left to the general services the lawyer or his/her staff provides during the representation of the c lient. Should a lawyer wish to charge clients for overhead costs and expenses, such a charge, including its method of calculation, ought to be explained to the client prior to the start of represe ntation, and e xpressly stated in the written re tainer agreem ent. Most importantly, the client must consent in ad vance to the additional fee s and their method of calcula tion. In the instant matter, the record indicates that Respondent did not receive advance consent from her clients agreeing to pay additional expenses fo r accounting services. In addition, the record indicates no extenuating circumstances justifying the separate charge. We hold that the practic e of charging clients for accounting services that is, billing clients for time spe nt comple ting time sheets and calculating bills therefrom under these circumstances, was unreasonable and a violation of MRPC 1.5. Therefore, the exception is overru led. IX. THE HEARING JUDGE S REFUSAL TO ALLOW THOMAS G. BODIE TO -54- TESTIFY Respondent contends that the hearing judge improperly or improvide ntly refused to allow Thomas G. Bodie, the lawyer who represen ted Responde nt during the investigatory phases of the six comp laints, to testify abo ut a meeting at Bar Co unsel s off ice and also improper ly refused to receive into ev iden ce a s ubse quent proffer as to his test imony. Respondent intended to call Mr. Bodie to testify about a meeting between Respondent, Bar Counse l, and Mr. Bodie concerning allegations of misconduct alleged in six different complaints. Respondent wanted to elicit evidence concerning the unfair treatment of Respondent by Bar Co unsel. Spe cifically, Respo ndent inten ded to estab lish that Bar Counsel chose only to prosec ute one claim of misconduct in 2005 (the Sporay case) and reserved the remaining complaints for a later date, after Respo ndent had received a sanction fro m this Court in the Sporay case. We shall first set forth the series of events leading to the hearing judge s exclu sion of Mr. B odie s te stimon y. On August 13 and 14, 2007, the hearing judge considered an objection by Bar Counsel to Respondent calling Mr. Bodie as a witness in her case. Bar Counsel asserted that Respondent had not listed Mr. Bodie s name or described his proposed testimony in her answers to relevant interrogatories. After hearing argument from counsel, the hearing judge sustained the objection and forb ade Respond ent from calling M r. Bodie as a witness. The hearing jud ge explain ed his reaso ning: Number one, Mr. Bodie was not named in answers to interrogatories nor in supplem ental answ ers to interrog atories nor p rior to the start of -55- these proceedings was there any communication directed to Ms. Kessler of any kind as to the purpose of calling Mr. Bodie or whatever information Mr. Bodie m ay possess with regard to the subject matter of these six things which form the basis of the petition filed by Bar Counse l. She is therefore in the dark as to what, if any, information Mr. Bodie may hav e with r egard to these six clients c ompla ints. . . . Upon further inquiry by me it became clear to me that the purpose of calling Mr. Bodie however artfully or inartfully explained to me was to get into the record that there may have been at sometime in the past a discussion between Mr. Bo die represen ting [Resp ondent] and Mr. Hirschmann or an Assistant Bar Counsel concerning the possibility of resolving in one proceeding of some kind or an other all outstanding complaints whatever they may have been in the office of Bar Counsel at the time. And indeed everyone agrees that such a meeting took place. However, both parties agree there was never any agreement and you, Mr. Lipsitz, have told me three times since I took the bench after the luncheon recess that there was never any such agreem ent. . . . The hearing judge also stated that he would not allow Mr. Bodie to testify due to the rule of evidence on testimony regarding settlement offers. The judge explained: To the extent [ ] that any testimony of Mr. Bodie concerning settlement discussions between the Respondent and office of Bar Counsel would not be admissible in this case to prove liability or nonliability for any reason because the rule is what it is and the case rises and falls on its own merits. Last, the hearing judge ruled that M r. Bodie s tes timony wo uld not be re levant to the proceedin g before h im. Therea fter, counse l for Resp ondent requested that a proffer about Mr. Bodie s testimony be marked for identification and placed in the file. The hearing judge allowed the proffer to be placed on the record. It is well settled in Maryland th at the trial judge is entrusted with the role of administering the discovery rules and, as such, is vested with broad discretion in imposing -56- sanctions when a party fails to comp ly with the rules. See, e.g., Rodriguez v. Clarke, 400 Md. 39, 56, 926 A.2d 736, 746 (2007); N. River Ins. Co. v. Mayor of Baltimore, 343 Md. 34, 47, 680 A.2d 48 0, 486-87 (1996); Starfish Cond o. Ass'n v. Yorkridge Serv. Corp., 295 Md. 693, 712, 458 A.2d 805, 815 (1983); Klein v. Weiss, 284 Md. 36, 56, 395 A.2d 126, 137 (1978); Mason v. Wolfing, 265 Md. 234, 236, 288 A.2d 880, 881 (1972). We will not disturb a trial court s decision to impose sanctions on a party unless there has been a clear showing that this disc retion w as abus ed. Mason, 265 Md. at 235, 288 A.2d at 882. Thus, we review the C ircuit Co urt's determination of discovery sanctions under an abuse of discretion standa rd. Clarke, 400 Md. at 57, 926 A.2d at 747 (citing N. River Ins. Co., 343 Md. at 47, 680 A.2d at 486-87; Starfish Cond o. Ass'n , 295 M d. at 712 , 458 A .2d at 81 5). In the case sub judice, the discovery violation stems not on ly from Responde nt s failure to list Mr. Bodie in her answers to Bar Counsel s interrogatories, but also from Responden t s and her counsel s failure to make a good-faith attempt at resolving the discovery dispute with B ar Coun sel. The he aring judge gave Re sponden t ample time to provide Bar Counsel with a summary of what Mr. Bodie would testify to in the event he was called to testify; however, Respondent failed to do so. The hearing judge, therefore, determined that, in light of Respondent s failure to provide the required information to Bar Counse l, the appropriate sanction was to preclude the testimony of Mr. Bodie. One form of sanction authorized by the Marylan d Rules is evidence preclusion, which we have affirmed where there has been a confluence of discovery failu res related to such evidence. Clarke, -57- 400 Md. at 66, 926 A.2d at 752; M aryland Rule 2-433 (a)(2 ). Respon dent s failure to furnish Bar Counsel with M r. Bodie s name and expected testimony during the discovery process and her failure to make good faith efforts at correcting the omission, considering the exceptional leeway give n by the hearin g judge du ring the hea ring, comp els us to ove rrule this excep tion. X. EXCEPTION TO HEARING JUDGE S CONCLUSION OF LAW THAT RESPON DENT VIO LATED M RPC 8.4. Respondent next excepts to the hearing judge s conclusions in the se ction of his opinion entitled Conduct Prejudicial to the Administration of Justice. Respondent argues that the hearing judge merely stated his personal opinion rather than entered a finding of fact or conclusion of law. In addition, R esponde nt contend s that in eff ect, [she] is being found to have violated Rule 8.4 because she has been found to have violated other MRPC. We overrule Respo ndent s excep tion. The hea ring judge d id not conclude Respondent violated Rule 8.4 because she was found to have violated oth er rules. The hearing jud ge explicitly said: For the reasons stated in many complaints, I have found [Respondent] to have violated by clear and convincing evidence Rule 8.4(d) Conduct Prejudicial to the Administration of Justice. In reviewing the basis for the hearing judge s conclusions of law concerning the six individual c omplaints, it is clear that the hearing judge had independent reasons to find that Respondent violated Rule 8.4(d). For exa mple, concerning the complaint of M r. Dudock, the hearing judge fou nd Resp ondent vio lated Rule 8 .4(d) due to her total lack of -58- any follow thro ugh for w ell over one year, her failure to respond to Mr. Dudock s inquiries, and her failure to return th e corpo rate boo ks until o ver thre e mon ths afte r she w as aske d. The hearing judge concluded that these actions were prejudicial to the administration of justice. As to the complaint of Ms. Anderson, the hearing judge fo und that Respon dent s failure to diligently pursue Ms. And erson's Separation Ag reement and divo rce [and her] unreason ably charging her for administrative overh ead as w ell as failing to m aintain communications with Ms. Anderson amounted to conduct prejudicial to the administration of justice in violation of Rule 8.4(d). As to the complaint of Mr. Ferrara, the hearing judge found that Respondent s conduct throughout the representation of Mr. Ferrara was conduct prejudicial to the administration of justice in violation of Rule 8.4(d). As to Mrs. Caldarelli s complaint, the hearing judge found that Respondent s neglect of Mrs. Caldarelli s case and lack of competen ce as well a s her misrep resentations amounte d to conduct prejudicial to th e administra tion of justice , in violation of Rule 8.4(d ). As to Responden t s representation of Mr. Boone, the hearing judge found that Responde nt s failure to appear in court; her failure to communicate with Mr. Boone concerning the Order for three months; and, her failure to consult and discuss with Mr. Boone any settlement proposal before su bmitting it to opposing counsel amounted to conduct prejudicial to the administration of justice. Last, as to Mrs. G oodwin s complaint, the hearing judge found that Respondent violated Rule 8.4(d) because of lack of diligence an d compe tence, as w ell as her m isrepres entation s to the client. T herefo re, we o verrule Respo ndent s excep tion. -59- XI. EXCEPTION TO HEARING JUDGE S DEMEANOR DURING THE HEARING Last, Respondent excepts to the hearing judge s demeanor during the hearing. Specific ally, Respondent complains of the hearing judge s frequent communications directed at her during the course of the h earing, o n and o ff the w itness sta nd. Respondent contends, citing Ricker v. Ricker, 114 M d. App. 58 3, 691 A .2d 283 (1 997), that [H]owever well intentioned the h earing judg e s exchan ges with Respondent may have been (and fully acknowledging the broad authority alloc ated to him as sole fact find er in a non-jury case), . . . the judge s frequent interventions in the instant case may . . . readily have had an undesirable chilling effect on Respondent s presentation of her evidence and could easily be taken as an indication that her testimony was being considered by the judge as being, from early in the hearing, at least suspect, thus again implicating an element of potential unfairness sufficient to create a violation of the widely recognized principle that a judicial proce eding mu st not only be fair, but also give the appearance of fairness, if due process con cerns are to be avoided. We overru le Resp onden t s exce ption. As Respondent indicates in her exception , the intermed iate appellate court in Ricker v. Ricker, supra, eloquently exp lained the ro le of a judg e in a trial: Judges, under the law, have wide latitude in the conduct of trials and may, w hen nece ssary, inter rupt and restr ict attorneys in the presentation of their cases in an attempt to assure a correct presentation. Gerstein v . State, 10 Md. App. 322, 270 A.2d 331 (1970), cert. denied, 402 U.S. 1009, 91 S.Ct. 2191, 29 L.Ed.2d 431 (1971). It is desirable that judges participate directly in trials: [T]he trial judge bears the responsibility for the orderly and fair administration of a trial and is not to be merely regarded as a referee . In re J.A. & L.A., 601 A.2d 69, 76 (D.C.App.1991). Particularly in non-jury cases, a trial judge is accorded s ubstantial leew ay in -60- participating in the trial because the judge functions as a trier of fact as well . Id. It is often helpful to a litigant in a non-jury case to discover the direction that the ju dge is lea ning , or to asse ss the jud ge's evaluation of the evidence as it is unfolding. Judges frequently do what juries cannot do during trials and engage in colloquies with attorneys. Those colloquies can contribute to a sharpening of the attorneys' presentations and arguments. Participation by the court in the questioning of witnesses or in commenting on the evidence can promote an orderly and efficient use of court resources. Active involvem ent by a judge , howev er, must be done prud ently. Even the most unbiased judge, by actively engaging in the trial, runs the risk o f appearin g to lack ob jectivity and may chill the attor ney's capa city to represen t the c lient 's inter est m ost effec tivel y. A judge who makes comments that devalue a litigant's presentation midstream may not be forwarding the goals of a fair trial, but instead may lead the restricted party to believe th at the judge is unwilling to listen. A judge who creates a courtroom atmosphere that appears unfair to the litigants may unintentionally cause the proceeding to become unfair. The litigants may react by abandoning a planned strategy or line of questioning that could affect the result or the record. A judge's participation should not overreach and disrup t a litiga nt's development of the evidence. Such behavior can transcend the bounds of proper judicial conduct and can go so far as to deprive a litigant of the r ight to a f air trial. Western Maryland Dairy Corporation, et al. v. Brown, 169 Md. 257 , 266, 181 A. 468 (1935). 114 Md. App. 594-95, 691 A.2d 288-89. In the instant case, we are asked to determine whether Respondent was harmed in any way due to the hearing judge s conduct. In order for Respondent to prevail, she must show some nexus between the alleged improper comment[s or conduct] and the course of the trial. Ricker, 114 Md. App. at 599, 691 A.2d at 291. Res ponden t, howeve r, points to no specific comments in the record for us to review. Therefore, we overrule the exception. SANCTION -61- Having concluded that Respondent violated Rules 1.1, 1.2, 1.3, 1.4, 1.5, 1.16, 8.4 (a), (c), and (d), we must determine the proper sanction. Respondent contends that no further sanction beyond that given in the prev ious attorney grievance case - Attorney Grievance Comm n v. Kreamer, 387 Md. 5 03, 876 A.2d 7 9 (200 5) - is nec essary as Respo ndent . . . has already remained indefinitely suspended for more than several years beyond the earliest date when she could have reapplied. Re spondent, nonetheless, reco mmends that the C ourt direct her to re-enroll in a remediation program. She explains: A strong remedial program, with appropriate safeguarding conditions should suffice to cure whatever may have been ailing Respondent and to restore her to service as a practicing law yer who w ill be a credit to the Bar and to herself. In th e alternative, R esponde nt suggests th at if the Court deems a period of suspension necessary, the suspension should be for an interval not greater than the indefinite suspension awarded in the [prior attorney grievance case,] should include the same provision for reapplication and should be dated to begin on the same date that [her previous] indefin ite suspe nsion b egan. Bar Counsel recommends disbarment. In support of this recommendation, Bar Counsel points to the hearing judge s finding that Respondent committed violations of the Rules of Professional C onduct in c onnection with her rep resentation o f six (6) sepa rate clients. Bar Co unsel spec ifically points out R esponde nt s failure to competently and diligently represent her clients, her misrepresentations to both Mr. Ferrara and Mrs. Goodwin, and the improper billing of several clients for accounting services. Bar Counsel -62- then recounts Respondent s misconduct as to each of the six complaints. Finally, Bar Counsel notes: The Respondent is unwilling to change the way she practices and instead of taking respon sibility for her actions/inactions, places the blame on others. The Respondent s conduct in these six (6) separate matters is repetitive of prior misconduct for which this Court has issued sanctions. It appears that the Respondent s prior three sanctions by this Court and two year monitor has not caused the Respondent to improve her practice. Petitioner submits to this Cou rt that the Respondent has evidenced, by her actions, a sufficient and persistent disregard for the Court s, her clients best interest and the public. Therefore, a disbarment in this matter is necessary to protect the pub lic from future h arm. In the previou s attorney grieva nce case in volving R esponde nt, we set fo rth the important principles that this Court must adhere to when devising a sanction for an offending attor ney: [O]ur goal in attorn ey discipline m atters is to protect the public and the public s confidence in the legal profession rather than to punish the attorney. Attorney Grievance Comm n v. Christopher, 383 Md. 624, 639, 86 1 A.2d 692, 701 (2004). Protecting the integrity of the legal profession and deter[ing ] other lawyers from eng aging in violations of the Rules of P rofessional Cond uct, are also reasons for sanctioning attorneys who v iolate the rules. Attorney Grievance Comm n v. Cassidy, 362 M d. 689, 6 98, 766 A.2d 632, 637 (2001). Determining the appropriate sanction requires the Court to consider the facts and circumstances of each particular case, including consideration of any mitigating factors. Attorney Grievance Com m n v. Post, 379 Md. 60, 71, 839 A.2d 718, 724 (2003). In addition, the nature and gravity of the violations and the intent with which they were committed are releva nt consideration s. Id. (quoting Attorney Grievance Comm n [ ] v. Awuah , 346 Md. 420, 435, 697 A.2d 446, 454 (1997)). We also have considered the attorney s prior grievance history . . . the attorney s remorse for the misconduct, and the likeliho od of th e cond uct bein g repea ted. Post, 379 Md. at 71 , 839 -63- A.2d at 724-72 5 (citations omitted). As stated in Attorney Grievance Comm n v. Monfried, 368 Md. 373, 794 A.2d 92 (2002), to determine an appropriate sanction we will, examine the nature of the misconduct, the law yer s state of mind which underlies the misconduct, actual or potential injury flowing from the misconduct, the duty of this Court to preserve the integrity of the profes sion, the risk to th e public in a llowing the respondent to continue in practice, and any mitigating or aggrav ating fa ctors. Monfried, 368 Md. at 396, 794 A.2d at 105. Attorney Grievance Comm n v. Kreamer, 387 Md. 503, 533-34, 876 A .2d 79, 97-98 (200 5). Respondent has previously be en the sub ject of discip linary proceed ings; indeed , this is Responden t s fourth interaction with the Attorney Grievance Commission. On February 2, 1999, this Court indefinitely suspended Respondent for failing to communicate with her clients and Bar C ounsel, failing to deposit unearned fees into escrow, and misrepresenting the status of client m atters. Attorney Grievance Comm n v. Kreamer, 353 Md. 85, 724 A.2d 666 (1999 ). On November 19, 2002, Respondent was issued a public reprimand for not acting with diligence regarding a guardianship matter. 19 Thereaf ter, on June 2 1, 2005, this Court indefinitely suspended Respondent from the practice of law for violations of Rules 1.3, 1.4, 1.15, 1.16, 8.1, Maryland Rule 16-609, and ยง 10-306 of the Business and Occupations Article of the M aryland C ode. Kreamer, 387 Md. at 538, 876 A.2d at 100. In large part, we found that Respo ndent had failed to com municate with her clie nt, failed to represent the client in a diligent manner, and failed to maintain proper bookkeeping practices. As 19 This Court reinstated Respondent on June 10, 1999, and required that she practice under t he sup ervision of a m onitor f or two years. -64- Respondent has asserted, she has not been reinstated to the practice of law since her 2005 indefinite suspension. An attorney s prior disciplinary history is among the factors th is Court co nsiders in determining the approp riate sanction for misconduct. Attorney Grievance Comm n v. MbaJones, 402 Md. 334, 346 , 936 A.2d 839, 846 (2007); see also Attorney Grievance C omm n v. Sapero, 400 M d. 461, 490 , 929 A.2d 483, 501 (2007); Attorney Grievance Comm n v. Hill, 398 Md. 95 , 103, 919 A.2d 1 194, 1198 (200 7). We note that, in the presen t matter, the disciplinary violations are substantially similar to those in Respondent s previous attorney grievance cases, especially the most recent 2005 case. We take into consideration that, to a certain extent, the time periods of the misconduct involved in the present matter and in the 2005 attorney grievance case overlap. In this case, a discussion between the hearing judge, Responden t s counsel and Bar Counsel at the Circuit Court hearing indicates that the six present complaints were n ot fully investigated by Bar Counsel at the time the petition for disciplinary action, stemming from her misconduct in the representation of Benchamas D. Spo ray, was filed against Respondent. Ordinarily, given the overlap in the time period and the substantia lly similar violations involved, it would not be unreasonable to consider Responden t s violations in the six present complaints as a continuation of the misconduct that lead to her indef inite suspen sion in 200 5. The insta nt compla ints against Respo ndent, however, involve more serious violations, Rules 8.4 (c) and (d), which reflect adversely upon -65- Respondent s fitness to practice law.20 In addition, we consider the nature and gravity of the v iolations and the intent w ith which they were committed when devisin g a sanc tion for an off ending attorney. Attorney Grievance Comm n v. Robertson, 400 M d. 618, 642 , 929 A.2d 576, 590 (2007); Attorney Grievance Comm n v. Awuah, 346 Md. 420, 435 , 697 A.2d 446, 454 (1997). In a ll six complaints, Respon dent accep ted fees an d then failed to represen t her clients co mpetently or dilig ently. In addition, Respondent billed clients separately for accounting services that are customarily a part of the operating costs of a law practice, something that should not be billed individually to a client any more than the client should be billed individually for the cost of maintaining the lawyer s office building or the cost of maintaining the lawyer s secretary or office manage r. In addition, there were no special circu mstances presented in this case to warr ant shif ting thes e kinds of cos ts to the in dividu al clients . Most notably, how ever, Resp ondent en gaged in c onduct that was prejudicial to the administration of justice. Respondent s intentional disregard for her clients legal matters led, for example, to Mrs. Caldarelli losing agreed-upon alimony supp ort payments a s well as her portion of her husband s pension and her portion of the martial home. In addition, Respondent misrepresented to four of her clien ts the status of th eir cases, all in an effort to 20 In the instant matter, the hearing judge found that Respondent violated Rules 8.4 (c) and (d) in her representation of Mr. Dudock, Mr. Ferrara, Mrs. Caldarelli, and Mrs. Goodwin. The hearing judge fou nd a violatio n of Ru le 8.4 (d) with regard to R espondent s represe ntation o f Mrs . Ande rson an d Mr. B oone. -66- hide her incompetence and lack of diligence. In the complaint of Mrs. Goodwin, for example, Respon dent falsely rep resented to Mrs. Goodwin that she had filed a request for a order of default against Mr. Goodwin when she had not yet filed the motion. Such conduct is not becoming of a member of the Maryland Bar. We think Respondent s misconduct refle cts her disreg ard f or client m atter s and the rules of profe ssional respo nsib ility. In Attorney Grievance Comm n v. Wallace, 368 Md. 277, 291, 793 A.2d 535, 544 (2002), we noted the serious nature of an attorney s intentional disregard of his clients legal affairs: In determining the proper course to follow when confronted with an attorney who has neglected the needs of his clients and failed to commu nicate with them, we have consistently regarded neglect and inattentiveness to a client's interests to be a violation of the Canons of Ethics warranting the imp osition o f some disciplin ary sanctio n . . . . It is clear then that w illfu l and flag rant neglect o f a client's affairs is, in and of itself, the kind of misconduct by an attorney which can lead to disbarment . . . . [W]e have noticed too many instances when lawyers have agreed to represent clients and accepted fees, in part or in whole, only to completely neglect these same legal problems, causing the same clients emotional distress, financial loss, or other varying kinds of inconvenience. (Quoting Attorney Grievance Comm n v. Manning, 318 Md. 697, 703-05, 569 A.2d 1250, 1253-54 (1990)). Ind eed, we h ave previo usly said that [i]t is well settled, that [d]isbarment ordinarily should be the sanction for intentional dishonest conduct. Harris, 403 Md. at 167, 939 A.2d at 747 (quoting Attorney Grievance Comm n v. Webster, 402 Md. 448, 473, 937 A.2d 161, 175 (2007). This is so because [c]andor and truthfulness are two of the most important moral character traits of a lawyer. Harris, 403 Md. at 167, 939 A.2d at 747 -67- (quoting Attorney Grievan ce Comm n v. Myers, 333 Md. 440, 449, 635 A.2d. 1315, 1319 (1994)); see also Attorney Grievance Comm n v. Vanderlinde, 364 Md. 376, 419, 773 A.2d 463, 488 (2001) (affirming the notion that, absent extenuating circumstances, intentional dishonest conduct implicates an attorney s basic character and warrants the sanction of disbarm ent). Having considered the particular facts and circumstances of this case and Responden t s prior disciplinary record, we conclud e that the appropriate sanction is disbarme nt. See, e.g., Ha rris, 403 Md. at 165-70, 939 A.2d at 746-48 ( Respondent s intentionally dishonest conduct, coupled with his extensive prior disciplinary record, compels u s to state that the public only will be protected by the imposition of a sanction of disbarment. ). Respondent has engaged in a pattern of conduct over her legal career which threatens the public s confidence and trust in the legal profession. Respondent s lack of competence, lack of diligence, lack of truthfulness and honesty in dealing with her clients, her failure to communicate with her clients, her misrepresentations to her clients, and her charging of unreasonable fees all lead to the most s evere of sa nctions d isbarmen t. Only the most severe sanction of disbarme nt will provid e the protec tion to the pu blic that this procedure is supposed to provide. Wallace, 368 Md. at 293, 793 A.2d at 545. IT IS SO ORDERED. RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THIS COURT, INCLUDING THE COST OF TRANSCRIPT S, PURSUANT TO MARYLAND RULE 16-761 FOR WHICH SUM JUDGMENT IS ENTE RED IN FAVOR OF THE ATTORNEY GRIEVANCE -68- COMMISSION AGAINST BARBARA OSBORN KREAMER. -69-
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