Attorney Grievance Commission v. Braskey

RAKER, J. The Attorney Grievance Commission, acting through Bar Counsel, filed a petition with this Court for disciplinary action against James F. Braskey, alleging violations of the Maryland Rules of Professional Conduct. The Commission charged respondent with violating Maryland Rules of Professional Conduct 1.5 (Fees), 1 1.7 (Conflict of interest: General ⁴³¹ rule), 2 1.15 (Safekeeping property), 3 8.4 (Misconduct), 4 Maryland Rules 16-604, 16-606, and 16-609 (regarding trust ac ⁴³² counts), 5 and Maryland Code (1989, 2000 Repl.Vol.) § 10-306 and § 10-606 of the Business Occupations and Professions Article (regarding trust money and trust accounts). 6 Pursuant to Maryland Rule 16-752(a), we referred the matter to ⁴³³ Judge W. Kennedy Boone of the Circuit Court for Washington County to make findings of fact and proposed conclusions of law. Judge Boone held an evidentiary hearing and concluded that respondent had violated Rules 1.5(a), 1.7(b), 1.15(a) and (c), 8.4(c) and (d), Maryland Rules 16-604,16-606, 16-609, and § 10-306 of the Business Occupations and Professions Article. I. Judge Boone made the following findings of fact and conclusions of law: FINDINGS OF FACT “Respondent is age 56 and in reasonably good health, except for an asymptomatic congenital pituitary gland condition and stress/depression as a result of the protracted proceedings herein, for which he has been prescribed paxil.

However, for the time period 1989-1999, he was in ‘good health’ and was not hindered or impaired in his practice of law by medical or psychiatric/psychological difficulties. “Respondent received his undergraduate degree from Frostburg State University and Juris Doctorate from the University of Baltimore, and admitted to practice in Maryland in 1977. During the period concerning the complaint, 1989-1999, Respondent was a sole general practitioner with offices in Grantsville, Frostburg and Cumberland with support staff. His primary practice involved residential/commercial real estate closings with approximately 15%-20% of ⁴³⁴ his practice time representing plaintiffs in personal injury matters. “On or about November 30, 1989 the Respondent was retained by John Dormio (Dormio) to represent him in a personal injury claim as a result of an automobile accident which occurred November 8,1989, Dormio being a long time acquaintance of the Respondent. Respondent agreed to represent Dormio on a contingency legal fee basis, with the written Retainer Agreement providing for Respondent to be paid one-fourth (1/4) of any settlement and one-third (1/3) of the recovery if suit was filed, with Dormio responsible for all incurred costs.

Dormio, being seriously injured, incurred over Thirty Thousand Dollars ($30,000.00) in medical bills which were covered through Medicare, administered by Blue Cross/Blue Shield (BC/BS), which timely notified Respondent of its subrogation lien on any proceeds recovered. “Respondent negotiated an automobile liability insurance policy limits settlement in the amount of Twenty-five Thousand Dollars ($25,000.00), with the settlement check received on February 11, 1992, which was deposited to an account at First Union National Bank and Trust titled ‘Braskey Law Office, P.A., Attorney Trust Account, IOLTA Account’ (IOLTA). “On February 11, 1992 the Respondent disbursed Six Thousand Two Hundred Fifty Dollars ($6,250.00) to himself as a one-fourth (1/4) contingency legal fee, as well as Seven Hundred Fifty Dollars ($750.00) reimbursement for costs incurred during representation. The balance of the settlement proceeds, Eighteen Thousand Dollars ($18,000.00), remained in the IOLTA account, pending resolution of the BC/BS lien. “On April 16, 1992 Respondent forwarded documentation to BC/BS on behalf of Dormio and made telephone calls to BC/BS on or about July 22, 1992 and November 18, 1994 in an effort to make known he was holding funds subject to their lien, attempting to negotiate a settlement. After November 18, 1994 Respondent made no further attempts to communicate with BC/BS. Respondent was not knowl ⁴³⁵ edgeable or experienced in the practice of negotiating and finalizing an agreement concerning BC/BS subrogation liens, which led to no further activity on this issue. “Prior to February 1996 Respondent met with Dormio to discuss options concerning the BC/BS lien.

Respondent proposed, and it was alleged to have been agreed, that Dormio and Respondent would equally divide $18,000.00 held in the trust account if there was no further contact by BC/BS. It was also allegedly agreed that Respondent would defend Dormio against any legal action taken by BC/BS and indemnify Dormio against any loss. Respondent also agreed to cease any negotiations with BC/BS, thereby giving up his claim to a 25% lien recovery fee he believed he was entitled to from BC/BS. This verbal agreement was never reduced to writing. “In February or March 1996 Respondent learned Dormio had suffered a stroke, had become incapacitated, was residing in a nursing home and no longer competent to handle his affairs.

His nieces, Joanna Rase (Rase) and Gail Richards (Richards) had received legal power of attorney to handle Dormio’s affairs. “On March 25,1996 Respondent disbursed Five Thousand Dollars ($5,000.00) to himself from the $18,000.00 held in his trust account as partial legal fee for Dormio representation, and on April 8, 1996 disbursed an additional Four Thousand Dollars ($4,000.00) to himself as balance of legal fees owed, for a total of Nine Thousand Dollars ($9,000.00). “In May 1996 Respondent contacted Rase and Richards, consulted with them, and offered to split the $18,000.00 that remained from the personal injury settlement. Rase and Richards refused the offer and demanded the entire $18,000.00 be placed in interest-bearing account. Over a year transpired with no further activity, and a second office consultation occurred on June 26, 1997, whereby Respondent advised of the Nine Thousand Dollar ($9,000.00) fee disbursement, and Rase/Richards again requested the funds be placed in an interest-bearing account with the Nine Thousand Dollar ($9,000.00) legal fee disbursed replaced. ⁴³⁶ “On July 10, 1997 the Respondent wrote to Rase and Richards and represented the entire $18,000.00 received from the Dormio settlement was presently in his trust account, but on July 14, 1997 Respondent deposited Nine Thousand Dollars ($9,000.00) from his personal assets to the trust account to make up the deficit. Rase and Richards being dissatisfied, on July 31, 1997, consulted with attorney Howard J. Price, who advised them that he would not have handled the Dormio case in the same manner as Respondent, and further instructed Rase/Riehards of their right to file a complaint with the AGC. “On August 15, 1997 Respondent disbursed Eighteen Thousand Dollars ($18,000.00) from his trust account and opened an interest-bearing account titled in Respondent’s name alone; however, on June 11, 1999 Respondent withdrew Nine Thousand Dollars ($9,000.00) from the account for himself.

In correspondence with Rase and Richards the Respondent made false and misleading statements concerning status of the disputed funds as evidenced by attachments to the Complaint, Petitioner’s Exhibit 1. This matter remained unsolved, and on July 28, 1999 Rase and Richards filed a formal complaint with AGC against Respondent. “On September 23, 1999 Respondent opened a new Trust Account whereby he transferred the remaining Nine Thousand Six Hundred Twenty-four Dollars and Twenty-four Cents ($9,624.24) from his personal interest-bearing account, as well as the Nine Thousand Dollars ($9,000.00) of his personal funds, total Eighteen Thousand Six Hundred Twenty-four Dollars and Twenty-four Cents ($18,624.24). “On April 27, 2000, Rase and Richards advised Respondent by letter that Dormio was deceased and an estate had been opened, whereby they were appointed personal representatives. On May 22, 2000 Respondent disbursed the entire account funds and made payable to the Estate of John Dormio in the amount of Fourteen Thousand Three Hundred Twenty-two Dollars and Eighteen Cents ($14,-322.18) sent to attorney Howard J. Price, and paid to himself attorney fees in the amount of Four Thousand Five ⁴³⁷ Hundred Dollars ($4,500.00). Respondent contends that this was an agreement reached with Price, attorney for Rase and Richards.

Subsequently, Rase and Richards on behalf of the Dormio estate accepted and negotiated the check. Time Line of Significant Events as to Proceeds in Dispute: 11/10/89 Automobile accident wherein Dormio was injured. 11/30/89 Respondent retained by Dormio for representation. 02/11/92 $25,000.00 settlement received. 02/13/92 Deposit of gross settlement proceeds: $25,000.00 IOLTA Account No.64-01040 02/13/92 Respondent disburses: -$ 7,000.00 From IOLTA Account: (1) Fee: $6,250.00 (2) Costs: 750.00 $7,000.00 Net proceeds remain in IOLTA Account, pending resolution of BC/BS lien $18,000.00 03/25/96 Respondent issues check to himself from IOLTA Account. -$ 5,000.00 Remaining net proceeds $13,000.00 04/08/96 Respondent issues fee check to himself from IOLTA Account. -$ 4,000.00 Remaining net proceeds $ 9,000.00 07/14/97 Respondent deposits to IOLTA Account. + $ 9,000.00 Total in IOLTA Account $18,000.00 08/27/97 Respondent withdraws from IOLTA Account and deposits in savings account No. 216-023015 in his name alone $18,000.00 04/18/99 Accrued interest + $ 519.76 Total in savings account $18,519.76 06/11/99 Respondent withdraws, payable to self, from Account No. 216-023025: -$ 9,000.00 Remaining proceeds $ 9,519.76 ⁴³⁸ 07/28/99 Complaint fled with AGC. 09/23/99 Respondent opens ‘Trust’ interest-bearing Account No. 216-022841 and deposits: (1) Acct. No. 216-023025 Balance with interest: $ 9,624.24 (2) Respondent’s funds: $ 9,000.00 $18,624.24 04/27/00 Letter to Respondent from Complainants, advising Estate had been opened for Dormio, now deceased. 05/22/00 Respondent disburses from interest-bearing trust account entire proceeds: To Estate: $14,322.18 Attorney fees: $ 4,500.00 $18,822.18 “After the filing of the Complaint Respondent promptly responded and cooperated fully with the AGC by meeting with its Investigator, Mark Friedler, on two lengthy occasions. In addition, he submitted to AGC five (5) pieces of detailed correspondence from August 27, 1999 through May 2, 2000 with documentation to assist the investigation, Petitioner’s Exhibits 3-7.

Respondent was forthcoming and admitted the error of his ways, even though at the time he did not believe he was involved in any wrongdoing and there was no intent to mishandle funds in his charge to the detriment of his client(s). After being advised of his alleged ethical violations he accepts ignorance is no defense, is truly remorseful, humiliated, and regrets the incident, especially the contents of correspondence sent to nieces of Dormio who held legal power of attorney and later appointed personal representatives of his estate. Simply put, Respondent is not a thief, is basically a good person and hardworking attorney who cares for his clients; however, he admitted wrongdoings. He exercised severe errors in judgments in handling the Dormio case as to monies in his trust and his dealings with Rase and Richards.

There are no prior ethical violations against Respondent with AGC. Since the filing of the Complaint in 1999 to date Respondent has been in ‘agony' over the matter where he ‘can’t even go to the ⁴³⁹ mailbox’ and now has two young partners/associates who have become mentors/overseers. “Without assessing blame or finger pointing, this Complaint has taken entirely too long to work its way through the system, at least from filing through Inquiry Panel hearing (July 28, 1999 to April 26, 2002), almost three (3) years with charges finally filed on October 23, 2002. Even though Respondent was not denied due process in these proceedings, the delay has certainly ‘taken its toll,’ where he has been ‘twisting in the wind.’ “This Court has had no prior contact socially or professionally with the Respondent and was not acquainted with him prior to the date of the merits hearing. CONCLUSIONS OF LAW “Respondent violated Rule 1.5(a) in that the Nine Thousand Dollar ($9,000.00) fee taken by him from the Eighteen Thousand Dollar ($18,000.00) net proceeds being held for his client was unreasonable.

Said Nine Thousand Dollar ($9,000.00) fee was in addition to the Six Thousand Five Hundred Dollar ($6,500.00) fee taken by Respondent on the gross Twenty-five Thousand Dollar ($25,000.00) settlement. “Respondent violated Rule 1.7(b) in that he had a conflict of interest between client, Dormio, and his obligation to BC/BS in accordance with his agreement to protect their subrogation lien interest. “Respondent violated Rule 1.15(a) in that he did not maintain funds retained on behalf of his client and/or third party in a properly designated trust account. “Respondent violated Rule 1.15(c) in that he withdrew Nine Thousand Dollars ($9,000.00) from his IOLTA trust account on June 11, 1999, when the interests of the Respondent and his client(s) and the Eighteen Thousand Dollar ($18,000.00) proceeds were in dispute. “Respondent violated Maryland Rules 16-604, 16-606, 16-609 and Business Occupations and Professions Article § 10-306 with respect to the Respondent’s handling of trust ⁴⁴⁰ proceeds. Section 10-606 concerning criminal sanctions need not be addressed. “Respondent violated Rule 84(c) in that he engaged in a deliberate course of misrepresentation in correspondence with Complainants which misrepresented the location of the Eighteen Thousand Dollars ($18,000.00) in controversy and applicable statute of limitations with regard to any causes of actions. “Respondent violated Rule 84(d) in that, under the totality of circumstances he attempted to collect an unreasonable attorney fee, which was prejudicial to the administration of justice.” II. Respondent’s Motion to Dismiss We turn first to respondent’s motion to dismiss the proceedings on due process grounds. Respondent maintains that he was denied due process because the disciplinary hearing before the Attorney Grievance Commission was not completed within forty-five days in accordance with the requirements of Attorney Grievance Commission Administrative and Procedural Guideline § 5-104. 7 Respondent claims he was prejudiced by the delay in that he suffered anxiety, concern, and emotional stress by living under a cloud of suspicion and hostility. ⁴⁴¹ The complaint that formed the basis of the Attorney Grievance Commission’s petition was filed on July 28, 1999.

On March 4, 2002, when an Inquiry Panel had yet to be convened, respondent filed a motion to dismiss, claiming a violation of his due process rights. Respondent argued that the Attorney Grievance Commission’s internal procedural guidelines provide that the Inquiry Panel hearing shall take place within forty-five days from the date that the file is received by the panel chairperson. The Inquiry Panel hearing was not held until April 26, 2002, 312 days after the panel chairperson received the file. The Inquiry Panel denied his motion to dismiss.

According to respondent, his motion was not given proper consideration by the Inquiry Panel. The Review Board denied respondent’s motion to reconsider his dismissal motion and on June 25, 2002, recommended to the Commission that disciplinary charges be filed. The Commission filed its disciplinary petition on October 23,2002, more than three years after the complaint against respondent was filed. On December 20, 2002, respondent filed a Motion to Dismiss, a Response to Petition for Disciplinary or Remedial Action, and a Request for a Hearing in the Circuit Court for Washington County.

On March 31, 2003, Judge Boone heard arguments regarding the Motion to Dismiss. Finding that the Circuit Court lacked the authority to rule on the motion, Judge Boone denied the motion. We note that Judge Boone was correct in denying respondent’s Motion to Dismiss. See Attorney Grievance Commission of Maryland v. Harris, 310 Md. 197 , 200 n. 2, 528 A.2d 895 , 896 n. 2 (1987) (holding that the hearing judge, in attorney discipline matters, lacks authority to dismiss the petition).

Respondent’s Motion to Dismiss is denied. His asserted violations of due process all relate to matters before the Inquiry Panel and Review Board, predating the filing of the Petition for Disciplinary or Remedial Action. Even assuming arguendo, that errors occurred in the preliminary proceedings, dismissal of the charges is not an appropriate remedy. ⁴⁴² Rule 16-754(b), Answer, explicitly states that “[i]t is not a defense or ground for objection to a petition that procedural defects may have occurred during disciplinary or remedial proceedings prior to the filing of the petition.” In Harris, 310 Md. at 202 , 528 A.2d at 897 , we held that “any irregularity in the proceedings before the Inquiry Panel and the Review Board ordinarily -will not amount to a denial of due process, as long as the lawyer is given notice and an opportunity to defend in a full and fair hearing following the institution of disciplinary proceedings in this Court.” In the instant case, even though the proceedings were delayed, respondent was afforded notice and an opportunity to defend in a full and fair hearing. There is no statute of limitations in an attorney disciplinary proceeding and mere delay does not warrant dismissal.

We have often noted that the purpose of attorney discipline proceedings is to protect the public by determining a lawyer’s fitness to practice law, and that an attorney is entitled only to notice of the charges, and a full and fan-hearing, not anything more. See Attorney Grievance Comm’n v. Goldsborough, 330 Md. 342, 356-57 , 624 A.2d 503, 510 (1993); Attorney Grievance Comm’n v. Kahn, 290 Md. 654, 684 , 431 A.2d 1336, 1352 (1981); Attorney Grievance Comm’n v. Engerman, 289 Md. 330, 346 , 424 A.2d 362, 370 (1981) (citing Bar Ass’n of Balt. City v. Posner, 275 Md. 250, 255 , 339 A.2d 657, 659-60 (1975)). A mere delay in disciplinary proceedings is not a basis for dismissal, absent a showing of prejudice.

In Engerman , where Bar Counsel knew all of the essential facts supporting certain allegations contained in the petition but failed to notify the attorney of the allegations until about two and a half years later, we held that the doctrine of laches did not bar the proceedings, especially where the attorney “failed to show any evidence of prejudice fi-om any delay in commencing disciplinary proceedings.” 289 Md. at 346 , 424 A.2d at 370 . Even in a case where we found the delay “gross and inexcusable,” we noted that the attorney was not prejudiced by the delay and ⁴⁴³ that dismissal “for the sole reason that the Attorney Grievance Commission failed to proceed with the proper dispatch is manifestly unwarranted.” Kahn, 290 Md. at 684 , 431 A.2d at 1352 . See also Anne Arundel County Bar Ass’n v. Collins, 272 Md. 578, 585 , 325 A.2d 724, 728-29 (1974) (finding that the attorney had not shown any evidence of prejudice and rejecting the attorney’s exception to the hearing panel’s refusal to dismiss the petition on the ground of laches). The Court of Appeals for the District of Columbia stated that “an undue delay in prosecution is not in itself a proper ground for dismissal of charges of attorney misconduct.” In re Williams, 513 A.2d 793, 796 (D.C.1986).

The court further explained: “Any betrayal of the trust which the attorney is sworn to keep demands appropriate discipline; a delay in prosecution, without more, cannot override this necessity. The contrary conclusion would mean that, when licensing applicants, we would engage in a form of deceit: our endorsement of an unqualified attorney would belie our simultaneous assertion that attorneys possess the integrity and competence which they must constantly demonstrate in order to earn the privilege of practicing law in the District of Columbia. Speedy trial principles, which in criminal cases are a constitutionally required curb on the abuse of government power, in the disciplinary system take second place to other societal interests.” Id. This is a view shared by other courts in addressing delay in attorney disciplinary proceedings.

See, e.g., In re Charges of Unprofessional Conduct Against N.P., 361 N.W.2d 386, 393 (Minn.1985); Ramirez v. State Bar of California, 28 Cal.3d 402 , 169 Cal.Rptr. 206 , 619 P.2d 399 (1980); In re Bossov, 60 Ill.2d 439 , 328 N.E.2d 309, 313-14 (1975); State ex rel. Nebraska State Bar Ass’n v. McArthur, 212 Neb. 815 , 326 N.W.2d 173, 175 (1982); In re Wright, 131 Vt. 473 , 310 A.2d 1, 9 (1973). See also Annot., Attorneys at Law: Delay in Prosecution of Disciplinary Proceeding as Defense or Mitigating Cir ⁴⁴⁴ cumstance, 93 A.L.R.3d §§ 9, 10, at 1057 (1979). The Supreme Court of Oregon noted as follows: “It ought to be made clear, however, that the primary-purpose of professional disciplinary proceedings is to protect the public.

The punishment of an offending member of the profession is indeed a serious matter, but it is incidental to the protection of the public. If the conduct of a member of the Bar disqualifies him from the practice of law, it would not be in the public interest to dismiss the disciplinary proceedings for no reason other than the Bar’s failure to prosecute them with the proper dispatch.” In re Weinstein, 254 Or. 392 , 459 P.2d 548, 549 (1969), quoted in Engerman, 289 Md. at 346 , 424 A.2d at 370 . This is not to say that delay is irrelevant. If an attorney’s ability to present a defense is substantially impaired, and an attorney can show actual prejudice to the defense, there might be a due process violation.

See, e.g., In the Matter of Carson, 252 Kan. 399 , 845 P.2d 47, 55 (1993) (noting an attorney discipline proceeding may be dismissed because of delay, but only if the delay is prejudicial to the defense and respondent convincingly establishes prejudice); In re Morrell, 684 A.2d 361 (D.C.1996) (holding that “[i]f delay in the prosecution of disciplinary charges substantially impaired the attorney’s ability to defend against the charges ... the Constitution might compel a different analysis: ‘A delay coupled with actual prejudice could result in a due process violation’ ”) (quoting In re Williams, 513 A.2d at 797 ). Respondent has shown no such prejudice.

III

This Court has original jurisdiction over attorney disciplinary proceedings. See Attorney Grievance Comm’n v. Harris, 371 Md. 510, 539 , 810 A.2d 457, 474 (2002). In the exercise of our obligation, we conduct an independent review of the record, accepting the hearing judge’s findings of fact unless clearly erroneous. See Attorney Grievance Comm’n v. Garfield, 369 Md. 85, 97 , 797 A.2d 757, 763-64 (2002).

The factual findings of the hearing judge will not be disturbed if ⁴⁴⁵ they are based on clear and convincing evidence. See Md. Rule 16-757(b) (providing that Bar Counsel has burden of establishing averments of the petition by clear and convincing evidence). See also Attorney Grievance Comm’n v. Monfried, 368 Md. 373, 388 , 794 A.2d 92, 100 (2002). We consider the hearing judge’s proposed conclusions of law de novo.

See Attorney Grievance Comm’n v. McLaughlin, 372 Md. 467, 493 , 813 A.2d 1145, 1160 (2002). Both parties except to Judge Boone’s findings of fact and proposed conclusions of law. Bar Counsel has the burden of establishing the allegations by clear and convincing evidence; respondent has the burden of proving the existence of mitigating circumstances by a preponderance of the evidence. See Md. Rule 16-757(b).

On review, we keep in mind that the findings of the trial judge are prima facie correct and will not be disturbed unless clearly erroneous. Garfield, 369 Md. at 97 , 797 A.2d at 764 . We turn first to respondent’s exceptions to the hearing judge’s findings of fact. Respondent excepts to the hearing judge’s finding that Dormio incurred over $30,000.00 in medical bills which were covered through Medicare, administered by Blue Cross/Blue Shield (BC/BS).

Respondent argues that “[w]e were not sure how much Blue Cross/Blue Shield (BC/BS) covered.” We sustain respondent’s exception, as there is no evidence in the record that Medicare covered all of Dormio’s medical bills, or that the amount covered was $30,000.00. 8 Respondent next excepts to the hearing judge’s finding that respondent “made telephone calls to BC/BS on or about July 22, 1992 and November 18, 1994 in an effort to make known he was holding funds subject to their lien.” Respondent acknowledges that he made no further attempts to communicate with BC/BS after November 18, 1994. He contends, however, that “[t]here were calls as early as Febru ⁴⁴⁶ ary, 1992.” Respondent testified that he thought that he contacted BC/BS on the day that the settlement proceeds arrived in February, 1992. Respondent testified that he made calls in February, 1992 to BC/BS. The hearing judge, in his report, made no note of these calls.

We are unable to say why the hearing judge omitted reference to respondent’s testimony regarding the February calls. It may be that the judge did not believe respondent; it may have been an oversight. In any case, even if the judge believed respondent, the hearing judge is not required to recount all of the evidence presented at the hearing. See Attorney Grievance Comm’n v. Granger, 374 Md. 438, 453 , 823 A.2d 611, 620 (2003) (noting that “it is elementary that the hearing judge ‘may elect to pick and choose which evidence to rely upon’ ”).

Accordingly, this exception is overruled. Respondent excepts to the hearing judge’s finding that “respondent also agreed to cease any negotiations with BC/ BS, thereby giving up his claim to a twenty-five percent lien recovery fee he believed he was entitled to from BC/BS.” Respondent maintains that he did not agree to cease negotiations with BC/BS. This exception is overruled. The hearing judge was not clearly erroneous in concluding from the evidence presented at the hearing that respondent and the client agreed to cease negotiations and that respondent gave up his claim to any fee he was entitled to receive from BC/BS.

In respondent’s Response to Request for Admission of Facts, read into the record by Bar Counsel at the hearing, he admitted that he and Dormio agreed to split the $18,000.00 should they hear nothing further from BC/BS. In his testimony before the Circuit Court, respondent stated: “I actually didn’t decide I wasn’t going to contact them. I made a contact then [in November, 1994] and I guess in my own mind, I said, ‘Hey this is a big insurance company, they ought to get back to me,’ but I didn’t totally actually absolutely rule out contacting them again, but I never did.” Judge Boone’s inferences are properly supported by the record. ⁴⁴⁷ Respondent excepts to the hearing judge’s finding that respondent learned in February or March, 1996, that Dormio had suffered a stroke. Respondent asserts that it was more like late April or early May.

The record reflects the following testimony as to when respondent learned that Dormio had a stroke: “So I disbursed two checks to myself. One in March and one in early April simply to just give income for two months for the office. And I had been calling John during this time on the phone. I don’t know if I had the secretaries call him or not, but finally I went down to his house and looked in the house.

There were lights on in there, but there didn’t appear to be anybody living there, and the neighbor came out. And the neighbor says or asked me who I was. I identified myself as ‘Jim Braskey, I represent John Dormio.’ And I said, ‘Where is John?’ ‘Oh John has had a stroke. He’s down at the nursing home.’ ” Although respondent’s testimony is less than clear as to when he learned Dormio had a stroke, we will sustain his exception because the record is also unclear as to the basis of the hearing judge’s finding. 9 Respondent excepts to the hearing judge’s finding that Dormio’s nieces demanded at the May, 1996 meeting that the entire amount of the trust proceeds, $18,000.00, be placed in an interest-bearing account.

Respondent argues that Dor-mio’s nieces did not make that demand until their second meeting in July, 1997. Both nieces testified that, at the May, 1996 meeting, respondent offered to split the money in the ⁴⁴⁸ trust account with them but he did not tell them he had already taken half of the money. Johanna Rase, one of the nieces, testified that she specifically requested at the May, 1996 meeting that respondent place the $18,000.00 in an interest-bearing account. Respondent testified, to the contrary, that the nieces made no such request at that time.

Lynne Richards, the other niece, testified that she did not recall whether she made any specific request concerning the funds at the May, 1996 meeting. She did state, however, that respondent represented that the $18,000.00 was at his bank and that the money was going to be held until respondent ascertained whether BC/BS would assert its rights to the money. This Court gives due regard to the hearing judge’s opportunity to assess the credibility of the witnesses. See Attorney Grievance Comm’n v. Awuah, 346 Md. 420, 433-34 , 697 A.2d 446, 453 (1997).

Judge Boone was not clearly erroneous in believing the testimony of Ms. Rase and rejecting respondent’s version of the meeting. Accordingly, respondent’s exception is overruled. Respondent excepts to the hearing judge’s finding that he misrepresented in his correspondence to the nieces on July 10, 1997, that the entire $18,000.00 received from the Dormio settlement was in his trust account at that time. In the letter dated July 10,1997, the first of four letters sent by respondent to Ms. Richards and Ms. Rase, respondent wrote that the $18,000.00 was in his trust account.

Respondent admits that half of the money did not go into his trust account until July 14,1997. This exception is overruled. Finally, respondent excepts to the hearing judge’s finding that respondent made “false and misleading statements” in correspondence with the nieces. Respondent does not deny that the statements he made in the letters were untrue.

He argues that he believed the statements regarding the statute of limitations to have been true when written and that those statements were not meant to be false and misleading. As to the statement about the money in the trust account, respon ⁴⁴⁹ dent represents to this Court that “Seven years have passed. I’m not certain what happened. Perhaps I was unable to get to the bank as soon as I anticipated when I drafted the correspondence.

Perhaps I dated the letter incorrectly.” Respondent’s exception is overruled. His statements in the letters were false and misleading, whether or not he intended to deceive. His state of mind is irrelevant to this exception. We turn now to respondent’s exceptions to the hearing judge’s proposed conclusions of law.

First, respondent contends that the hearing judge erred in concluding that respondent’s withdrawal of $9,000.00 from his IOLTA trust account on June 11, 1999 was a violation of Rule 1.15(c) because the interests of respondent and his elient(s) and the $18,000.00 proceeds were in dispute at that time. Respondent argues that there was no genuine dispute because he believed that the statute of limitations on the money had run. Respondent’s argument is without merit. In Attorney Grievance Commission v. Culver, 371 Md. 265 , 808 A.2d 1251 (2002), this Court held that an attorney violated Rule 16-607(b)(2) 10 by removing from an escrow account money to which he believed he was entitled.

We rejected the attorney’s argument that he