Attorney Grievance Commission v. Calhoun

⁵⁴⁰ CATHELL, J. Pursuant to Maryland Rule 16-751 1 of the Maryland Lawyers’ Rules of Professional Conduct (MRPC), 2 the Attorney Grievance Commission (the “Commission” or “Bar Counsel”), acting through Bar Counsel, filed a petition for disciplinary action or remedial action against Candace K. Calhoun, Esquire (“Respondent”), charging her with violations arising out of her representation of Mr. Paul E. Schell. With respect to the MRPC, the petition alleged that respondent violated Rules 1.1 (Competence), 3 1.3 (Diligence), 4 1.4 (Communication), 5 1.5 ⁵⁴¹ (Fees), 6 1.15 (Safekeeping Property), 7 8.1 (Bar Admission and ⁵⁴² Disciplinary Matters), 8 8.4(a), 8.4(c), 8.4(d) (Misconduct) 9 and Maryland Rule 16-609 (Prohibited Transactions) 10 as adopted by Maryland Rule 16-812. Pursuant to Maryland Rule 16-752(a), 11 we referred the matter to Judge Frederick C. Wright, III of the Circuit Court ⁵⁴³ for Washington County for an evidentiary hearing and to make findings of fact and conclusions of law in accordance with Maryland Rule 16-757(e). 12 On July 15, 2005, Judge Wright held a hearing and on September 21, 2005, issued findings of fact and conclusions of law, in which he found by clear and convincing evidence that respondent had violated MRPC 1.1, 1.3, 1.4, 1.5, 1.15, 8.4(a), (c), (d) and Maryland Rule 16-609. Respondent, pursuant to Maryland Rule 16—758(b), 13 filed exceptions to Judge Wright’s findings.

I. The charges in this matter arose out of respondent’s representation of Mr. Schell in a sexual harassment action. Judge Wright made the following factual findings and conclusions of law, dictating them into the record pursuant to Rule 16-757(c): “I’m going to start with the petition because the allegations are averments that[ ] ... if proven by clear and convincing evidence, then would be applied to the various rules of ethics that [Bar Counsel] alleges had been violated by Ms. Calhoun. Then I’m going to go back and spend some time in another review of the record to indicate why I feel there is supporting evidence of the various averments that are in the petition. ⁵⁴⁴ “And I would find from a review of the proceedings on July the fifteenth and considering your respective proposals and argument that the Attorney Grievance Commission has met its burden of proving by clear and convincing evidence that the respondent was admitted to the Bar of the Court of Appeals of Maryland on June 25, 1997. Respondent was also admitted to the bars of West Virginia and Pennsylvania. “During times relevant to this petition, Ms. Calhoun maintained an office for the practice of law in Cumberland, Maryland.

On or about ... May of 1999 Paul Schell consulted Ms. Calhoun concerning an employment related matter. Ms. Calhoun, the respondent, advised Mr. Schell that he had a claim against his former employer for sexual harassment. “In May of 1999 the respondent was engaged by Mr. Schell to represent him with regard to his claim against his former employer. The attorney and client then entered into a representation agreement.[ 14 ] The terms of which were communicated to the client in writing. ⁵⁴⁵ “The agreement called for a retainer of Five Thousand Dollars to be earned at the rate of a Hundred and Fifty Dollars per hour and represented that the final fee would be if the matter was successfully litigated the greater of the total hourly fee plus twenty percent or forty percent of any monetary recovery. “The agreement also represented that if the matter was not successfully litigated the attorney would receive an hourly fee.

The agreement is silent as to what would be considered a successful litigation. “This agreement was prepared, of course, by Ms. Calhoun as an attorney, professional, and she’s expected to know what the expectations of a client are in any type of employment between the two of them. So the terms of this employment contract, if you will, were best known to Ms. Calhoun as to what they meant. And there was no further explanation, I guess, made by Ms. Calhoun to Mr. Schell as to what successful litigation is. Does that successful litigation mean day in court, verdict for plaintiff?

Successful litigation mean settlement prior to that date? “Recovery by way of settlement can certainly be successful as far as the client is concerned. Now Mr. Schell had no idea what successful litigation meant. Those are terms that are legal. “The agreement called for the complainant, Mr. Schell, to pay all litigation costs. The agreement stated that Ms. Calhoun would provide monthly statements to her client after the Five Thousand Dollar retainer was depleted. “Respondent, however, failed to provide the expected monthly statements.

Now I know there is a conflict as to whether certain statements were, in fact, sent. Mr. Schell indicated he didn’t receive anything until, I believe, March ⁵⁴⁶ of 2003. Ms. Calhoun and her witness indicated that certain statements were, in fact, sent on a monthly basis. “I am not making any finding of fact as to whether these statements were or were not sent. I’m assuming that they were sent.

But they are certainly, again, not what would have been expected in any attorney/client relationship to meet the agreement or contractual definition of monthly statements. “The control is in the hands of the attorney. And there is an expectation, I believe, that in this situation any monthly statements would have been detailed indicating fees earned, costs paid in furtherance of litigation as charges and then a statement as to monies paid by client, received by counsel to be applied to fees earned. That was not done. So there’s a failure of Ms. Calhoun to provide the expected monthly detailed statements. “On or about May nineteen, 1999 Mr. Schell paid Ms. Calhoun a Five Thousand Dollar retainer.

On or about June the eighth, 2001 the respondent represented to Mr. Schell that he had funds left in his retainer but an additional payment of Five Thousand Dollars would be necessary to cover the costs of depositions. And I would find that [ ] is sustained by clear and convincing evidence that there was a discussion between Ms. Calhoun and Mr. Schell that she needed an additional Five Thousand Dollars to cover costs of depositions that had not yet occurred. “Then ... on or about June the eighth, the complainant, Mr. Schell paid Ms. Calhoun this other Five Thousand Dollars. Ms. Calhoun failed to deposit the funds received from Mr. Schell in a properly designated attorney trust escrow account. “Respondent continued to represent Mr. Schell throughout the years of 1999, 2000, 2001, 2002. So the attorney/client relationship continued.

When we say represent that means that the attorney/client relationship continued during those years and there were, again, expectations by Mr. Schell that what Ms. Calhoun would be doing would be ⁵⁴⁷ beneficial to him ... hopefully leading to a successful conclusion of the litigation. “In April of 2000 Ms. Calhoun filed a charge of discrimination with the Equal Employment Opportunity Commission. A right to sue was issued. Then [on] August eleventh of 2000 respondent filed a complaint in the United States District Court for Maryland, which alleged that the former employer had engaged in discrimination based on sex and sought Seven Million Dollars in damages. “Again, it’s shown by clear and convincing evidence that during this time of representation and attorney/client relationship in the movement of and responsibility of the attorney to move the litigation forward to ... or the conflict forward to successful conclusion and the expectation that whatever an attorney does and bills another person for, it is not just spending of time that one can assess against somebody, it is doing something that’s productive. However; during this period Ms. Calhoun failed to interview or depose any potential witness. “There was no interviewing, no investigation by Ms. Calhoun, as attorney, with the expected knowledge as to what has to be proven to sustain a claim in Federal court for discrimination.

She’s the one that is expected by a client in this situation; it’s the attorney who’s expected to be the knowledgeable person as to what evidence, what type of presentation is necessary. Yet, she did not interview any potential witness. “Also, during the representation Ms. Calhoun failed to keep Mr. Schell informed concerning tibe a,cental of fees. Again, not found by this Court to be detailed statements that would be expected to be understood by a layman as to the accrual of fees. “During the representation I would, find by clear and convincing evidence, Ms. Calhoun did mislead Mr. Schell concerning amoimts owed and the manner in which she applied the payments. There are many ways to mislead.

One can mislead by what one says. One can mislead by ⁵⁴⁸ what one does. And one can mislead by silence and lack of communication. “Mr. Schell was mislead [sic] in his expectations as to what he’s paying for, what services he was paying for-how they were to be ... how they were actually accomplished, what was being done. The client has I would say [a] right but certainly I talk about éxpectations and I’m using that term as a right in the administration of justice and relationships between attorneys and client.

The client has to be made aware on a regular basis as to the status of one’s case and the status of one’s monetary expectations, costs. “During the representation Ms. Calhoun failed to keep Mr. Schell informed concerning the accrual of litigation costs for which he was responsible. “On or about November, 2001-now we’re getting to the matter of the settlement, Ms. Calhoun recommended that Mr. Schell accept an offer of Eight Thousand Dollars to settle the case. Again, advice, providing advice to one’s client. Ms. Calhoun advised Mr. Schell to settle for Eight Thousand Dollars. “However, she did not advise Mr. Schell that fees had accrued in excess of that amount. Based on the advice and recommendations [ ] Mr. Schell agreed to accept the offer.

But he didn’t do it with full knowledge of how Ms. Calhoun was going to apply the Eight Thousand Dollars. “A settlement is a settlement ... is an agreed conclusion of litigation. And I would find that Mr. Schell was unaware when he accepted an Eight Thousand Dollar settlement that he was going to owe Ms. Calhoun any more monies but for any costs of litigation that may have been expended. “It can be argued that any settlement is successful litigation. And I think to the lay person, incidentally to one who’s a mechanic, he felt that his litigation was successful in settling for Eight Thousand Dollars. He didn’t know that, in fact, it was so unsuccessful that he was going to get another bill, which is misleading.

Again, ... the authority ⁵⁴⁹ and the power was with Ms. Calhoun, the power to inform and keep the client truthfully informed. “February twentieth, 2002, on or about, a check was received and settlement papers were signed. But a check was received in the amount of Eight Thousand Dollars from the attorney representing the defendant in the Federal litigation. “Ms. Calhoun failed to deposit those funds, which were settlement funds, that were for the benefit of her client, failed to deposit those funds in a, proper attorney trust escrow account. She deposited, it instead into a personal account, a, different account than the original Five Thousand or the second Five Thousand retainer, purely personal. Her home address, not even her office address, her home address on the account. “So she eo-mingled trust, funds with personal funds.

Ms. Calhoun failed to promptly account for the funds received and failed to advise Mr. Schell in a timely manner that she had, disbursed the settlement funds to herself. “And it was not until March of ZOOS after many requests by Mr. Schell that Ms. Calhoun finally informed Mr. Schell of the paper trail, I guess, of the Eight Thousand Dollars, where the Eight Thousand Dollars went and what she was going to apply it to. And included in this response was in essence a statement or bill for an additional Nine Thousand Five Hundred Dollars of fees for services and for costs. “The Court, finds with dear and, convincing evidence that, Ms. Calhoun failed, to keep Mr. Schell informed concerning the status of litigation. And then with the March 2003 correspondence from Ms. Calhoun, as attorney, to her client, she did, attempt to collect funds ... from Mr. Schell for which he was not responsible under the terms of the retainer agreement. “I would find by clear and, convincing evidence that the fees that were charged by wag of this final March ZOOS statement were excessive and unreasonable. And that by these acts and admissions [or omissions] Ms. Calhoun has ⁵⁵⁰ violated certain Maryland Rules of professional conduct and Maryland Rules. “[There is] ... clear and convincing evidence to support these conclusions of law: “That she violated Rule 1.1, competence where a lawyer shall provide competent representation to a client.

Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. “Throughout all of these rules the term is used as to reasonableness. And I would find that there was a failure to reasonably provide the representation that was expected by Mr. Schell. “I would find that the clear and convincing evidence supports a violation of Rule 1.3, diligence. A lawyer shall act with reasonable diligence and promptness in representing a client. “I would find that there is support by clear and convincing evidence of a violation of Rule 1.4, communication. Lawyers shall keep a client [ ] reasonably informed about the status of a matter and promptly comply with reasonable requests for information. “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

The events surrounding the settlement certainly would show that there’s a substantial violation of Rule 1.4. “I would find by clear and convincing evidence there was a violation of Rule 1.5, fees. A lawyer’s fee shall be reasonable. There’s certain factors that are ... determinative of reasonableness. “It was unreasonable to charge the fees that were evidenced by the March 2003 statement. Now there ... has to be a, I’ll use the word reasonable again, but there has to be in the dialogue, communication, between a professional person, attorney at law, and one’s client.

There cannot be a ⁵⁵¹ taking of advantage of. And I think that there was ... Mr. Schell was taken advantage of by Ms. Calhoun. “You can’t ... build up fees and then recommend a settlement that is going to be used as a, fund, for fees that are built up and not, being productive for the client. You can’t build up Ten/Fifteen Thousand Dollars in fees by just time.

Charging somebody for one tenth of an hour or two tenths of an hour or three tenths of an hour or half an hour, whatever it might be, just because you spent time on it. Again, that’s a matter of control by the individual attorney and the expectation is that attorneys are going to be honest in that they will be charging for work done to enhance the interests of one’s client. “So you can’t have your cake and eat it, too, in this ... type of situation. You cannot say that ... I deserve these fees of Ten Thousand and Fifteen Thousand Dollars because I have spent time [o]n it.

But then as part of my representation I’ve also advised my client to accept a small amount of money and then turn around and charge the client purely on time. “This ... situation was successfully litigated when you have a settlement that is successful litigation as far as the client is concerned. And that’s the important part.... [WJhat’s important here is what the client expects. So these fees were unreasonable. The fees that were changed to him, were unreasonable. “There was a failure and this is recognized, there was a failure of Ruis 1.15 and that’s the safekeeping of property by the dsposits of the Five Thousand and the Five Thousand not into trust accounts but, most especially, the failure to deposit the Eight Thousand Dollars in a trust account, escrow account, and co-mingling with personal funds. ... [Y]ou can’t explain that away.

Every attorney knows that. “That is a requirement and there have been ... statements from the Court of Appeals in many, many, many, many cases about problems that attorneys get into when they co-mingle client’s funds with their personal funds ... ⁵⁵² or personal account. And this Eight Thousand Dollars was client funds, client money. It’s expected to be client money. “All of [these ] violations lead to the conclusion that there was professional misconduct, a violation of 8.4. Throughout this relationship between Ms. Calhoun as attorney and Mr. Schell as client ... there was a failure to communicate properly.

Again, I think that he was taken advantage of and I guess it is best shown by the attempt to collect monies and to charge a late fee and interest when they were not really earned by the contract and I think that’s misconduct because it is conduct that is prejudicial to the administration of justice and the expectation of attorney ... of what we expect as professional conduct and ethics. “Now I do not find by clear and convincing evidence that there was any false representation by Ms. Calhoun to bar counsel.[ 15 ] “There was a violation of Maryland Rule 16-609 that prohibited transactions. And I think that has been ... accepted by Ms. Calhoun.” [Emphasis added.] Bar Counsel takes no exceptions to the hearing judge’s findings of fact and conclusions of law and recommends disbarment. On October 27, 2005, respondent filed numerous exceptions to the hearing judge’s findings, discussed infra.

II

STANDARD OF REVIEW This Court has original and complete jurisdiction over proceedings involving attorney discipline. Attorney Grievance Comm’n v. Zuckerman, 386 Md. 341, 363 , 872 A.2d 693, 706 (2005) (citing Attorney Grievance Comm’n v. James, 385 Md. 637, 654 , 870 A.2d 229, 239 (2005); Attorney Grievance Comm’n v. O’Toole, 379 Md. 595, 604 , 843 A.2d 50, 55 (2004)). The hearing judge’s findings must be supported by clear and convincing evidence. Zuckerman, 386 Md. at 363 , ⁵⁵³ 872 A.2d at 706 (citing Attorney Grievance Comm’n v. Gore, 380 Md. 455, 468 , 845 A.2d 1204, 1211 (2004)); Maryland Rule 16-757(b) (“The petitioner has the burden of proving the averments of the petition by clear and convincing evidence.”).

We will accept a hearing judge’s findings of fact unless we find that they are clearly erroneous. Attorney Grievance Comm’n v. Weiss, 389 Md. 531, 545 , 886 A.2d 606, 614 (2005); Zuckerman, 386 Md. at 363 , 872 A.2d at 706 . And any conclusions of law made by the hearing judge are subject to our de novo review. Weiss, 389 Md. at 545 , 886 A.2d at 614 ; Zuckerman, 386 Md. at 363 , 872 A.2d at 706 .

DISCUSSION After a thorough review of the record we find that Judge Wright’s findings of fact and conclusions of law are supported by clear and convincing evidence. Respondent asserts twenty-one separate exceptions: 1 and 2 concern due process rights, 3 through 17 are exceptions to findings of fact, and 18 through 21 are exceptions to both findings of fact and conclusions of law. We will address the exceptions, consolidating a number of them due to similar subject matter, and deny them. A. Respondent’s Exceptions Based on the Alleged Violation of Her Due Process Rights.

Exceptions 1 & 2: Respondent contends that her constitutional right to due process of law was violated “by an ex parte communication which resulted in public charges being filed for disciplinary action based upon an erroneous recommendation by the Peer Review Panel ...” and “by the Peer Review Panel’s failure to consider a Panel member’s vote to dismiss all charges against Respondent.” In addition, respondent asserts that both Maryland Rules 16-723 and 16-754(b) are “unconstitutional as [they] preclude[ ] enforcement of the ex parte rule which protects a party’s constitutional rights.” Respondent claims that, during the Peer Review process, Bar Counsel communicated with a panel member or members via a letter and indicated that respondent had failed ⁵⁵⁴ to agree to a Conditional Diversion Agreement. 16 Respondent’s contention that her due process rights were violated by such alleged ex parte communication at the peer review level of this proceeding is without merit. Maryland Rule 16-754(b) 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.” The Court discussed this issue in Attorney Grievance Commission v. Harris, 310 Md. 197 , 528 A.2d 895 (1987), in which we found 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.” Id. at 202 , 528 A.2d at 897 ; Attorney Grievance Comm’n v. Lee, 387 Md. 89, 114 , 874 A.2d 897, 912 (2005); Attorney Grievance Comm’n v. Braskey, 378 Md. 425, 442 , 836 A.2d 605, 615-16 (2003). It is undisputed that respondent was given notice and an opportunity to defend in a hearing before Judge Wright on July 15, 2005, and before this Court on February 6, 2006. Therefore, we find no violation of respondent’s due process rights.

Respondent’s assertion that Maryland Rules 16-723 and 16-754(b) are unconstitutional is also without merit. As stated supra, respondent had the opportunity to defend herself in a full and fair hearing after the peer review process. ⁵⁵⁵ See Lee, 387 Md. at 114 , 874 A.2d at 912 (“[A]ny concerns that a respondent attorney has been prejudiced by false statements made during the Peer Review process are ameliorated by the fact that the respondent attorney ultimately will have the opportunity to confront the complainant, under oath, at an evidentiary hearing.”). In the case sub judice, respondent is concerned about an alleged ex parte communication between Bar Counsel and the Peer Review Panel. She asserts that such ex parte communication influenced the Peer Review Panel to recommend the filing of public charges based upon a supposed erroneous allegation that she failed to agree to the Conditional Diversion Agreement.

Respondent argues that the confidentiality imposed upon the proceedings via Maryland Rule 16-723 and Maryland Rule 16—754(b) makes the rules unconstitutional because it precludes her from introducing evidence from the peer review proceedings to support her argument. Judge Harrell, 'writing for the Court in Lee , opined on the purpose of the peer review process: “The purpose of the Peer Review process is to provide an open and frank environment in which the parties and complainant will feel comfortable to ‘put it all on the table’ in the hopes that they may be able to work, in an informal and cooperative manner, toward a mutually acceptable solution. This environment, however, is accomplished only by allowing both the respondent attorney and complainant the ability to make otherwise conciliatory or potentially inculpatory statements in seeking a mutual solution, without the fear that those statements may be used against him or her at a later hearing. “Despite the common sense appeal of permitting use of statements made during the Peer Review process to expose later inconsistencies or intentional misrepresentations, we conclude that the better course is to declaim, borrowing and mutating somewhat a currently popular advertising slogan, ⁵⁵⁶ ‘what happens in Peer Review stays in Peer Review.’ The comprehensive and sweeping language of Md. Rule 16-723(a) reflects our conclusion that the Peer Review process will only be effective if all statements made at a Peer Review Panel meeting are insulated from subsequent disclosure in the remaining stages of the attorney grievance process.” 387 Md. at 112-13 , 874 A.2d at 911 . While Lee was concerned with the admissibility at an evidentiary hearing of statements made during the Peer Review process and not an ex parte communication, as in the case sub judice, the Court’s reasoning is applicable in both instances.

Furthermore, it should be noted that all ex parte communications are not prohibited during the course of the Peer Review process. Maryland Rule 16-743(d) states: “Except for administrative communications with the Chair of the Peer Review Committee and as allowed under subsection (c)(1) as part of the peer review meeting process, no member of the Panel shall participate in an ex parte communication concerning the substance of the Statement of Charges with Bar Counsel, the attorney, the complainant, or any other person.” (Emphasis added.) The Rule allows ex parte communication between the parties and the Peer Review Panel concerning subject matter other than the substance of the Statement of Charges. An ex parte conversation concerning whether or not respondent agreed to a Conditional Diversion Agreement does not concern the substance of the Statement of Charges. For the aforementioned reasons these exceptions are denied.

B. Respondent’s Exceptions to the Hearing Judge’s Factual Findings. Exceptions 3, 6, 7, 8, 9, 10 & 11: Respondent filed exceptions to a number of Judge Wright’s findings of fact which concerned respondent’s failure to keep Mr. Schell sufficiently informed concerning the accrual of fees throughout the ⁵⁵⁷ course of the representation. These exceptions to Judge Wright’s factual findings arise out of respondent’s erroneous belief in a supposed contradiction in the hearing court’s findings which respondent expresses as “the hearing judge’s irreconcilable and contradictory factual finding that Mr. Schell received the monthly statements apprising him of his financial status even though they were not the expected detailed monthly statements, but rather were short statements apprising him of his fees.” In order to clarify the confusion raised by respondent’s exceptions, it is necessary to reconcile what was actually said in the findings of fact and conclusions of law with respondent’s interpretation. Judge Wright stated: “The agreement called for the complainant, Mr. Schell, to pay all litigation costs.

The agreement stated that Ms. Calhoun would provide monthly statements to her client after the Five Thousand Dollar retainer was depleted. “Respondent, however, failed to provide the expected monthly statements. Now I know there is a conflict as to whether certain statements were, in fact, sent. Mr. Schell indicated he didn’t receive anything until, I believe, March of 2003. Ms. Calhoun and her witness indicated that certain statements were, in fact, sent on a monthly basis. “I am not making any finding of fact as to whether these statements were or were not sent.

I’m assuming that they were sent. But they are certainly, again, not what would have been expected in any attorney/client relationship to meet the agreement or contractual definition of monthly statements. “The control is in the hands of the attorney. And there is an expectation, I believe, that in this situation any monthly statements would have been detailed indicating fees earned, costs paid in furtherance of litigation as charges and then a statement as to monies paid by client, received by counsel to be applied to fees earned. That was not done.

So there’s a failure of Ms. Calhoun to provide the expected monthly detailed statements.” ⁵⁵⁸ There is no “irreconcilable and contradictory factual finding” in Judge Wright’s statement. The meaning is clear. Judge Wright, as the hearing judge, found that whether or not statements were actually sent was irrelevant. The statements which respondent asserted were sent were inadequate to satisfy respondent’s responsibility to her client. 17 Respondent failed to keep Mr. Schell informed of the accrual of fees, misled him as to amounts owed, as to how she was applying payments, and as to how his settlement would be calculated in regards to any fees owed.

These exceptions are denied. Exception Jy Respondent excepts to the hearing judge’s finding that “[i]n April of 2000 Ms. Calhoun filed a charge of discrimination with the Equal Employment Opportunity Commission.” 18 Respondent contends that the discrimination charge was filed on or about February 2000. The record contains a cover letter dated February 19, 2000, from respondent to the EEOC concerning the charging documents, however, in Mr. Schell’s deposition he indicates that he signed the charging document on March 1, 2000, and mailed it to the EEOC on that same day. In any case, the exact date on ⁵⁵⁹ which the EEOC claim was filed is not dispositive of this exception.

Respondent began representation of Mr. Schell in May of 1999. Respondent did not file a claim with the EEOC until either February, March, or April of 2000. For the purpose of this case, whether respondent waited nine, ten, or eleven months to file the charge is inconsequential. This exception is denied.

Exception 5: Respondent excepts to the hearing judge’s finding that respondent “failed to interview or depose any potential witness.” Respondent argues that she “secured numerous witness statements from Mr. Schell, that Mr. Schell had obtained in order to save him money.” Respondent’s contention does not dispute the hearing judge’s statement. It is evident from the record that respondent did not interview any potential witnesses and the only deposition taken was of Mr. Schell. This exception is denied. Exceptions 12 & IS: Respondent excepts to the hearing judge’s finding that “Ms. Calhoun failed to deposit those funds, which were settlement funds, that were for the benefit of her client, failed to deposit those funds in a proper attorney trust escrow account” and that respondent “co-mingled trust funds with personal funds.” Respondent argues that the $8,000.00 settlement was for “fees earned” and therefore she could deposit the money into her “office account.” 19 A review of the record shows that the settlement funds were not deposited into a proper trust account and were co-mingled with personal funds.

We find Judge Wright’s findings to be supported by clear and convincing evidence. These exceptions are denied. Exceptions H & 15: Respondent excepts to the hearing judge’s finding that “Ms. Calhoun failed to promptly account for the funds received and failed to advise Mr. Schell in a ⁵⁶⁰ timely manner that she had disbursed the settlement funds to herself’ and that “it was not until March of 2003 after many requests by Mr. Schell that Ms. Calhoun finally informed Mr. Schell ... where the Eight Thousand Dollars went and what she was going to apply it to.” Respondent again argues that these findings are factually incorrect because of the hearing judge’s “irreconcilable and contradictory factual finding that Mr. Schell received monthly statements apprising him of his financial status even though they were not ‘the expected detailed monthly statements,’ but rather were short statements apprising him of his fees, except for one detailed statement received in June 2001” and that such statements show that respondent “did promptly account for the funds and advised Mr. Schell in a timely matter [sic] that the funds were disbursed to herself.” We discussed supra the insufficiency of the monthly “statements” which respondent supposedly sent to Mr. Schell. In addition, the statements make no mention of the $8,000.00 settlement amount and any “detailed” statement received in June 2001 would not have covered the settlement funds, as such funds were received on or about February 20, 2002.

These exceptions are denied. Exception 16: The hearing judge found that respondent “failed to keep Mr. Schell informed concerning the status of [the] litigation.” Respondent takes exception to this finding based on the aforementioned monthly “statements” and a number of letters from respondent to Mr. Schell which are contained in the record, “including letters explaining that Respondent had not yet received the final document which dismissed the case.” As we have discussed, the statements were insufficient to keep Mr. Schell properly informed of the status of the litigation. Judge Wright did not find that the additional letters were, on their own, sufficient to keep Mr. Schell properly informed concerning the status of the litigation. In fact, Judge Wright specifically found that the letters from respondent to Mr. Schell “explaining that Respondent had not yet received the final document which dismissed the case” were misrepresentations.

Judge Wright stated: ⁵⁶¹ “But then there is communication from Ms. Calhoun to her client, which I can only find is misrepresentative. Because ... then March thirty-one, 2002 Mr. Schell did receive a copy of a letter from Ms. Calhoun to Judge Legg and the letter advised Judge Legg that the parties have consummated the settlement. “A note at the bottom of the page informs Schell, among other things, that the respondent received a final signed agreement which was sent on March twenty-seventh, 2002 and that she will do a final computation of fees and costs and expenses. “As of May nine, 2002 Schell had not received an accounting from respondent. On or about May nine, 2002 Schell received another letter in response to his recent telephone call. This letter informed Schell that Ms. Calhoun has not received the dismissal from the Federal Court in regards to his case and that once she receives this notice respondent would send the final computation of his invoice. “Respondent also informed Schell in this letter that the Court usually allows an additional thirty days before it officially dismisses the case.

Those are facts that I would find. And they’re just absolutely ... absolutely wrong to the extent that the Court had already dismissed the case. Ms. Calhoun knew that the Court had dismissed the case. And the Court didn’t have anything to do after that.” We find Judge Wright’s finding to be supported by clear and convincing evidence.

This exception is denied. Exception 17: Respondent excepts to the hearing judge’s finding that respondent “attempted] to collect funds ... from Mr. Schell for which he was not responsible under the terms of the retainer agreement.” Respondent argues that such finding is not sufficiently clear and specific to inform her of the allegation of a violation of MRPC 1.1 Competence. 20 ⁵⁶² However, respondent states that “[a]t the hearing, said allegation appeared to be that Respondent attempted to charge a late fee and interest due to Mr. Schell’s failure to pay his bill.... ” Respondent admitted this before the Circuit Court for Washington County on September 21, 2005, stating: “I did attempt to charge a late fee and interest because I assumed you could do so if a person did not pay his bill.” Judge Wright’s finding was sufficiently clear and convincing that respondent understood what conduct it referred to. This exception is denied. C. Respondent’s Exceptions to Conclusions of Law.

Exception 18: Respondent excepts to the hearing judge’s conclusion and finding that “the fees that were charged by way of this final March 2003 statement were excessive and unreasonable” and therefore violated MRPC 1.5. Respondent argues that, pursuant to Maryland Rule 16-709(c), 21 the Petition for Disciplinary or Remedial Action is not sufficiently clear and specific to inform her of the basis of the allegation that she charged excessive and unreasonable fees. Judge Raker, writing for the Court, discussed the form of charges in Attorney Grievance Commission v. Fezell, 361 Md. 234 , 760 A.2d 1108 (2000), stating: “To be sufficient, a petition must be intelligible and sufficiently informative to allow an accused attorney to prepare a defense. See Attorney Grievance [Comm’n ] v. Alison, 349 Md. 623, 641 , 709 A.2d 1212, 1221 (1998) (holding that charges were sufficiently clear and specific to inform attorney of misconduct charged even though allegations did not specifically state that a cause of action was ‘frivolous,’ but merely cited the rule number and presented facts to support the allegation).

So long as the petition informs the attorney ⁵⁶³ of the misconduct charged in language which is clear and sufficiently specific to enable the attorney to prepare a defense, the charges need not be set out in any particular form. See Bar Ass’n v. Cockrell, 2,10 Md. 686, 692, 313 A.2d 816, 819 (1974) (holding that, while the [predecessor] rule requires that the charges be sufficiently clear and specific so as to enable the attorney to prepare a defense, no certain form or detail is required).” Fezell, 361 Md. at 247 , 760 A.2d at 1115 . In the case sub judice, the petition alleged: “30. Respondent attempted to collect funds from the Complainant for which he was not responsible under the terms of the retained agreement. “31.

Respondent charged an excessive or unreasonable fee.” The petition then cited MRPC 1.5. Respondent contends that there must be specific factual allegations applied to the particular factors enumerated in MRPC 1.5 as to why the fee was excessive or unreasonable. That is not the case. No certain form or detail is required.

See Fezell, 361 Md. at 247 , 760 A.2d at 1115 ; Cockrell, 210 Md. at 692, 313 A.2d at 819 . The petition’s allegations informed respondent that she would have to prepare a defense as to why she attempted to collect funds, which were not provided for in the retainer agreement, from the