Attorney Grievance Commission v. Culver

RAKER, Judge. The Attorney Grievance Commission, petitioner, acting through Bar Counsel, filed a Petition for Disciplinary Action ²⁴⁷ against Allan J. Culver, Jr., respondent, alleging violations of the Maryland Rules of Professional Conduct. The Commission charged respondent with violating Maryland Rules of Professional Conduct 1.2 (Scope of representation), 1 1.3 (Diligence), 2 1.5 (Fees), 3 1.7 (Conflict of interest: General rule), 4 ²⁴⁸ 1.15 (Safekeeping property), 5 3.1 (Meritorious claims and contentions), 6 3.2 (Expediting litigation), 7 3.3 (Candor toward the tribunal), 8 3.4 (Fairness to opposing party and coun ²⁴⁹ sel), 9 and 8.4 (Misconduct). 10 Pursuant to Maryland Rule 16-752(a), we referred the matter to Judge John O. Hennegan of the Circuit Court for Baltimore County to make findings of fact and proposed conclusions of law. Judge Hennegan held an evidentiary hearing and concluded that respondent had violated Rules 1.2(d), 1.3, 1.5(a) and (b), 1.7(b), 1.15(a), 3.1, 3.2, 3.4(d), and 8.4(b), (c), and (d).

I. Judge Hennegan made the following findings of fact and conclusions of law: “On July 9, 2002, the Attorney Grievance Commission of Maryland filed a Petition for Disciplinary Action, alleging that the Respondent, Allan J. Culver, Jr., engaged in misconduct in violation of the Maryland Rules of Professional Conduct in connection with his representation of Ms. [the ²⁵⁰ client] in her divorce case and in related matters. The Court of Appeals assigned this matter to this Court to conduct a trial and to make findings of fact and conclusions of law. The trial was held May 14 through 16, 2003. “The Court heard testimony from Ms. [the client]; her friend, Susan Butzner; and Matt R. Ballenger, Esquire, the attorney who represented Ms. [the client] in her subsequent lawsuit against Mr. Culver. The parties also introduced a number of exhibits, as well as a transcript of the testimony of Allan M. Grochal, Esquire, before the Inquiry Panel in this matter. “Bar Counsel, on behalf of the Attorney Grievance Commission, filed a Petition for Disciplinary Action alleging that Respondent violated Rules 1.2, 1.3, 1.5, 1.7(b), 1.15, 3.1, 3.2, 3.3, 3.4 and 8.4(b), (c) & (d) of the Maryland Rules of Professional Conduct.

The allegations concern or pertain to three matters. The first allegation is that Respondent incompetently represented Ms. [the client], did not act diligently, charged unreasonable fees, and engaged in other misconduct in the course of her divorce case. “The second allegation is that during his representation of Ms. [the client], Respondent coerced and forced Ms. [the client] to have sexual contact with him. The third allegation involves Respondent’s actions while Ms. [the client’s suit was pending against him: he allegedly used improper means to avoid being deposed, avoid trial, and avoid paying the funds he agreed to settle the case. “[The client] testified that she retained Mr. Culver 1 in March 1993 to represent her in connection with her divorce case after seeing his advertisement in a telephone directory. Although the advertisement promised a free initial consultation, Respondent charged her fifty dollars for their first meeting.

Ms. [the client] explained that she was very distraught about her divorce because her husband had vowed to do whatever it would take to get custody of the parties’ two children. Mr. Culver’s retainer agreement failed to advise her of his fee, but billed her on roughly a monthly basis. Pet’r Ex. No. 24.

Those bills show that ²⁵¹ Respondent initially charged her $125.00 per hour, then later raised his rate to $150.00. Pet’r Ex. No.’s 25, 26, 27. 1 2 Ms. [the client] testified that Mr. Culver never informed her that he was increasing his billing rate. Many of the bills submitted to Ms. [the client] by Respondent do not reflect the hours involved for the particular task. “During the course of the representation, Mr. Culver failed to timely file answers to interrogatories on behalf of Ms. [the client].

Pet’r Ex. No. 2— Motion for Sanctions. Ms. [the client] testified that she gave Mr. Culver all of the information he requested in order to respond to the interrogatories within a few days of Respondent asking for the information. The circuit court entered an order granting sanctions against Ms. [the client], precluding her testimony and dismissing her counterclaim.

Pet’r Ex. No. 2 — Order dated August 12,1993. Respondent was successful in having the sanctions removed. He billed Ms. [the client] for those services, even though Respondent was personally at fault for the failure to answer interrogatories.

Pet’r Ex. No. 26 August 18, 1993; Aug. 20, 1993; August 23, 1993; Aug. 31, 1993; Sept. 3, 1993; Oct. 18, 1993; Oct. 28,1993. “During the course of the representation, Ms. [the client] experienced financial difficulties, in part due to the attorney fees in excess of $23,000 she paid to Respondent. Ms. [the client] testified that Mr. Culver advised her to obtain more credit cards and take cash advances on those cards to pay his fees. Ms. [the client] expressed concern about incurring that debt, but Mr. Culver explained that she would not have to repay that money because he would represent her to have the debts discharged in bankruptcy. “Ms. [the client] testified that she attended a master’s hearing in her divorce case on September 9, 1993.

Mr. Culver represented her at that hearing. Susan Butzner was ²⁵² also present and testified at the master’s hearing. That evening, Ms. [the client] received a telephone call from Mr. Culver. Mr. Culver insisted that he met with her that evening so that Ms. [the client] could sign papers that, he claimed, had to be presented to the court that following morning.

Ms. [the client] agreed to meet Respondent at a restaurant, ‘Bahama Mama’s,’ which was near Ms. [the client’s home. Ms. [the client] arranged to have Susan Butzner accompany her to the restaurant. Mr. Culver arrived late. He was accompanied by a few friends who came with him.

Ms. [the client] repeatedly asked to sign the papers, but Mr. Culver never produced them. Eventually, Mr. Culver left to buy gasoline and Ms. [the client] had Ms. Butzner drive her home. “Ms. [the client] testified that Mr. Culver, shortly thereafter, unexpectedly arrived at her house. He said that he wanted to see the condition of the house because [the client’s husband] had raised allegations that Ms. [the client] was not a good housekeeper. Ms. [the client’s two sons were asleep upstairs.

At Respondent’s request, Ms. [the client] showed him the children’s playroom in the basement. There, Respondent forced her to the ground, pulled up her blouse and bra, pulled down her pants and proceeded to force her to have sexual intercourse with him. Ms. [the client] repeatedly objected. Mr. Culver placed himself on top of her and covered her mouth with his hands, demanding that she be quiet.

He left immediately following the incident. Ms. [the client] identified a business card which she said Respondent left at her house that night. “Ms. [the client] testified on two later occasions Mr. Culver convinced her to perform oral sex on him. She asserted that the occasion in his office was consensual. Ms. [the client] testified that she did not report these instances to the police or file criminal charges against Respondent.

She continued to allow the Respondent to represent her. Ms. [the client] was concerned that she would lose custody of her children if revealed. She was familiar with how to file a criminal complaint. Ms. [the client] further testified ²⁵³ that she had not filed a complaint with the Attorney Grievance Commission against Respondent, but had done so against her husband’s attorney.

Additionally, she was familiar with the ex parte domestic violence process. “Ms. [the client] testified that she previously denied committing adultery under oath; she did, in fact, have sexual relations with Mr. McCormick and Respondent while married. Ms. [the client] claimed that she was unaware that they were acts of adultery while she was separated from her husband. She testified she was faithful to her husband while they lived together. Moreover, Ms. [the client] testified that, when asked about any such relationships, she took the Fifth Amendment on advice of counsel. “The [client and husband]’s divorce case was tried in 1994.

Ms. [the client] wanted to appeal that decision. Mr. Culver advised her that he would handle the appeal for a fee of $5,000.00, plus the advance payment of $1,500.00 for costs. Ms. [the client] paid the appeal fee and costs to Mr. Culver by two checks dated August 23 and September 19, 1994. “After Ms. [the client] paid Mr. Culver to represent her in her appeal, Mr. Culver filed the appeal, then withdrew from representing her, contending Ms. [the client] owed additional fees. Mr. Culver did not return the fee paid for the appeal and did not file an appeal brief on her behalf.

The Court of Special [sic] Appeals dismissed the appeal after appellant failed to file a brief. “Susan Butzner testified that she accompanied Ms. [the client] to the master’s hearing on September 9, 1993, and to the meeting with Mr. Culver that same evening. She testified that Mr. Culver was acting very unprofessional and possessive of Ms. [the client] in front of his friends and that he was getting very close to her. It appeared to Ms. Butzner that Mr. Culver had been drinking alcohol before he arrived at Bahama Mama’s. She confirmed that Mr. Culver never produced the papers for Ms. [the client] to sign and that he eventually left.

Ms. Butzner took Ms. [the client] home. She observed Mr. Culver in his automobile parked on the block where Ms. [the client] lived. When she ²⁵⁴ got home, Ms. Butzner called Ms. [the client] to see if Mr. Culver had come to her house. Ms. [the client] confirmed to Ms. Butzner that Mr. Culver was there in her house.

At that time, Ms. Butzner and Ms. [the client] worked together. The day after the rape, Ms. [the client] was crying and told Ms. Butzner that Mr. Culver had tried to kiss her. After a few weeks, Ms. [the client] confided to Ms. Butzner that Mr. Culver in fact had forced her to have intercourse. “Matt R. Ballenger represented Ms. [the client] in her civil suit against Mr. Culver for legal malpractice and for the coercive and forcible sexual contact. Mr. Ballenger sent Respondent a letter notifying Respondent that he intended to bring a claim against him for these matters.

Mr. Culver filed suit against Ms. [the client] for defamation. Mr. Ballenger represented Ms. [the client] in defense of that suit. Mr. Ballenger described his efforts to depose Mr. Culver in connection with that suit. Mr. Culver avoided answering discovery and did not appear for his deposition.

Eventually, Mr. Culver voluntarily dismissed the suit against Ms. [the client]. “Later, Mr. Ballenger filed suit against Mr. Culver on behalf of Ms. [the client]. Again, Mr. Culver was served with a notice of deposition and other discovery requests. Mr. Ballenger described his efforts to take Respondent’s deposition. Respondent failed to appear for the deposition on the agreed date.

He was ordered to appear by a circuit court judge, and did not appear. The Respondent was aware of the court order. Resp’t Ex. No. 4 at 17.

The circuit court sanctioned Respondent for his actions by order of Judge Noel dated April 24, 1997. Mr. Ballenger, additionally, testified Respondent failed to appear at a pre-trial settlement conference scheduled in front of Judge Hammer-man. Eventually the court entered summary judgment against Mr. Culver based on his failure to file a timely answer to the amended complaint. “A hearing was set to determine damages. The day before the scheduled hearing, Mr. Culver filed a petition for bankruptcy in order to stay the damages hearing.

Al ²⁵⁵ though the United States Bankruptcy Court promptly remanded the matter to the circuit court for trial on damages, Respondent’s action caused a delay of almost a year in bringing the matter to trial. When the new trial date came, Respondent attempted to have the case transferred to federal court for trial. The United States District Court for the District of Maryland promptly remanded the case to the state court. “After the case was remanded by United States District Court and set in for trial, the Respondent agreed to settle the case for $60,000.00. Because of Respondent’s pending bankruptcy case, the parties agreed that the settlement funds would come from Mr. Culver’s father.

A certificate of deposit was assigned to Mr. Ballenger and Respondent’s counsel to be held in trust to pay part of the settlement amount once the bankruptcy court approved the settlement. Other settlement funds were to be held by Respondent’s lawyer in his escrow account. After negotiations were complete, an agreement was signed and the settlement was approved by the bankruptcy court. Mr. Ballenger then contacted the bank to get the funds from the certificate of deposit, only to learn that the certificate of deposit had already been cashed.

Furthermore, Respondent’s attorney would not turn over the funds he held in escrow. After Mr. Ballenger took further efforts to enforce the settlement, including taking action against Respondent’s father, Respondent finally paid $64,000.00 to settle the case. “The Respondent, through his answers, exhibits and cross examination, denies the allegations that he violated any of the Rules of Professional Conduct. FINDINGS OF FACT “The Court, after conducting a hearing in open court, finds the following facts to be proven by clear and convincing evidence: “The Respondent was a member of the Maryland Bar since June 21,1978. ²⁵⁶ “[The client] retained Respondent in July 1993 to represent her in connection with her divorce case, which was pending in the Circuit Court for Baltimore County. Although Respondent’s advertisement promised a free initial consultation, Respondent charged her $50.00 for the meeting.

Respondent did not communicate his hourly rate to Ms. [the client] in writing. During the course of his representation, he raised his rate from $125.00 to $150.00 per hour without any advanced notice to his client. “Mr. [husband] had propounded interrogatories. At Mr. Culver’s request, Ms. [the client] promptly provided all of the information Respondent needed to prepare answers to interrogatories. Nevertheless, Respondent failed to prepare the answers in time to serve Mr. [husband]’s attorney with a timely response.

Mr. [husband] sought sanctions against Mrs. [the client]. In September 1993, the court entered an order awarding sanctions against Ms. [the client], dismissing her counterclaim and precluding her from introducing evidence in support of her defense. Mr. Culver was responsible for the failure to file timely answers to discovery and the entry of the sanctions order. Respondent prepared a motion to vacate the sanctions order, served answers to discovery, and succeeded in having the sanctions order vacated.

He charged Ms. [the client] for the time expended to correct his own error. “Mr. Culver continued to represent Ms. [the client], Ms. [the client] paid him more than $23,000.00 for legal fees. When she began experiencing financial difficulties, Mr. Culver advised Ms. [the client] to apply for more credit cards and take cash advances to pay his fee. He assured her that he would assist her in having that credit card debt discharged in bankruptcy. “A hearing before a master was held on September 9, 1993. Ms. [the client] and Susan Butzner testified at that hearing.

Mr. Culver contacted her by telephone later that day and asked to meet with her that night to sign unspecified papers, which he said needed to be submitted to the court the following day. Ms. [the client] agreed to meet ²⁵⁷ Respondent that evening at a nearby restaurant, Bahama Mama’s. “On the evening of September 9, 1993, Ms. [the client], along with Ms. Butzner, went to Bahama Mama’s to meet Respondent so that Ms. [the client] could sign the papers. Mr. Culver arrived with some friends, but did not have the papers. Ms. [the client] repeatedly asked to see the papers, but Respondent never produced them.

Mr. Culver left, and when he did not return, Ms. [the client] and Ms. Butzner left the restaurant. “Ms. Butzner drove Ms. [the client] home. After leaving Ms. [the client]’s house, she saw Mr. Culver in his car near the house. Later that evening, Ms. Butzner [sic] called Ms. [the client] and was told Mr. Culver was in the house. Mr. Culver came to the house uninvited under the pretext that he wanted to inspect her house to see if she was a good housekeeper.

Mr. [husband] had been claiming that Mrs. [the client] was not a good housekeeper. Ms. [the client] allowed Mr. Culver to come inside the house. At Mr. Culver’s request, she showed him the children’s playroom. While in the playroom, Respondent had sexual relations with Ms. [the client], “Ms. [the client] continued to have Mr. Culver represent her because she already paid him a substantial fee and because Respondent made threats that if she did not cooperate with him and accede to his sexual demands, he would deliberately sabotage her case so that she would lose custody of her children.

Ms. [the client] was emotionally upset and vulnerable at that time due to her pending divorce and her husband’s threats to take the children away from her, as well as financial pressure resulting from the divorce and litigation expenses. Respondent, while maintaining a confidential relationship with Ms. [the client], exercised a degree of undue influence over and took advantage of her vulnerability, such as convincing her to perform fellatio on him on two occasions. When Ms. [the client] was deposed in her divorce case, on advice of Mr. Culver, she asserted her Fifth Amendment privilege against self-incrimination when asked ²⁵⁸ if she had committed adultery, rather than disclose that Mr. Culver or others had a sexual relationship with her. “The [client’s] divorce case was tried in July 1994. Ms. [the client] was not satisfied with the outcome and directed Respondent to file an appeal.

Respondent requested payment of $5,000.00 for his flat fee plus advanced payment of costs in the amount of $1,500.00. Ms. [the client] paid those funds to Mr. Culver by checks dated August 23 and September 19, 1994. Mr. Culver deposited those funds in his operating account, although the fee was unearned and the costs had not been paid. Respondent filed the appeal, but did not file an appellant’s brief.

Instead, he withdrew his appearance. Respondent did not return the unearned fee for the appeal work. “Ultimately, Ms. [the client] was unable to afford new counsel. Her appeal was dismissed by the Court of Special Appeals. “Ms. [the client] consulted an attorney about filing a bankruptcy petition because of her financial difficulties. At a meeting with her bankruptcy attorney, Christopher Fascetta, Ms. [the client] confided to him her problems with Mr. Culver, including the sexual contact.

Ms. [the client’s attorney referred her to other counsel. Matt R. Ballenger represented her in her claims against Mr. Culver. “After Mr. Ballenger wrote to Respondent, notifying him of Ms. [the client’s intended claim, Respondent sued Ms. [the client], alleging defamation. Respondent unreasonably failed to respond to discovery and failed to make himself available to be deposed. As a result, Mr. Ballenger sought sanctions against the Respondent.

Later, Respondent voluntarily dismissed that suit. “Mr. Ballenger later filed a complaint on Ms. [the client’s behalf, against Respondent. Again, Respondent engaged in a pattern of behavior to avoid responding to discovery. Despite motions for sanctions and court orders, Respondent never was deposed in that case. Ultimately, the court entered a summary judgment order establishing Respon ²⁵⁹ dent’s liability, and the case was scheduled for a hearing on damages. “Respondent continued to defend himself in the case by obstruction and delay, which exceeded the normal bounds of aggressive counseling and defense.

He filed a bankruptcy petition the day before the scheduled trial date so that the hearing on damages would be stayed. The bankruptcy court promptly returned the case to state court, but on the day before the rescheduled hearing, Respondent attempted to have the case transferred to federal court. Judge Davis returned the case to state court, finding that Respondent waited too long to request federal jurisdiction. “Unfortunately, the civil case settled based on Respondent’s assurances that funds would be paid from a certificate of deposit in his father’s name as well as other funds his lawyer held in escrow. Even after the settlement was approved by the bankruptcy court, no settlement funds were disbursed.

In fact, even though the certificate of deposit had been assigned to Mr. Ballenger and Respondent’s counsel, to be held in trust, the certificate was cashed and no funds were given to Ms. [the client], Mr. Ballenger had to take further action to collect the funds. Respondent attempted to have the settlement amount drastically reduced by the bankruptcy court. Judge Schneider dismissed Respondent’s bankruptcy case, finding that Respondent used the bankruptcy court to delay and evade paying Ms. [the client]. CONCLUSIONS OF LAW “Rule 1.2(d) of the Maryland Rules of Professional Conduct states: (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make ²⁶⁰ a good faith effort to determine the validity, scope, meaning or application of the law. “When Ms. [the client] was experiencing financial difficulties and had no resources to pay Respondent, he advised her to obtain new credit cards and to take cash advances on those accounts to pay Respondent’s fees.

Respondent advised her that she would not have to repay those funds because he would represent her to have those debts discharged in bankruptcy. By advising his client to obtain loans with the intention of having the debts discharged in bankruptcy, Respondent counseled Ms. [the client] to commit a fraudulent act. By giving Ms. [the client] an application for a ‘Law Card’ credit card to pay his fee, he assisted her in committing a fraudulent act. By this conduct Respondent violated Rule 1.2(d) of the Maryland Rules of Professional Conduct. “Rule 1.3 of the Maryland Rules of Professional Conduct requires a lawyer to ‘act with reasonable diligence and promptness in representing a client.’ Respondent failed to submit timely answers to interrogatories in Ms. [the client’s divorce case, resulting in an order entered against her imposing sanctions.

Respondent also lacked due diligence by failing to respond to the Motion for Sanctions. Ms. [the client] had provided Respondent with the necessary information to respond to discovery. By his lack of diligence in submitting answers to discovery and failing to oppose the Motion for Sanctions in Ms. [the client’s divorce case, Respondent violated Rule 1.3 of the Maryland Rules of Professional Conduct although no prejudice resulted to Ms. [the client] from this action. “Rule 1.5(a) of the Maryland Rules of Professional Conduct requires that a lawyer’s fee be reasonable. Rule 1.5(b) states: (b) When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation. ²⁶¹ “Respondent charged a fee to Ms. [the client] for his initial consultation after advertising that his initial consultations were free.

Respondent also charged Ms. [the client] $625.00 for time expended to respond to discovery motions which were required solely because of Respondent’s lack of diligence in preparing answers to discovery. Those charges were unreasonable and violated Rule 1.5(a) of the Maryland Rules of Professional Conduct. “Respondent’s engagement letter and retainer did not specify his hourly rate. His first bill did not specify the time expended so it was impossible for Ms. [the client] to determine Respondent’s hourly rate. Respondent’s November 1993 invoice indicates that he initially billed Ms. [the client] at the rate of $125.00 per hour.

Invoices beginning in January 1994 reflect a rate of $150.00 per hour. Respondent never notified Ms. [the client] of his intent to increase his billing rate. That failure to inform the client of a change in the terms of his fee violated Rule 1.5(b) of the Maryland Rules of Professional Conduct. “Rule 1.7(b) of the Maryland Rules of Professional Conduct states: (b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation. “Respondent allowed his own personal interests to interfere substantially with his representation of Ms. [the client]. Respondent placed his interests in continuing to be paid for his representation above Ms. [the client]’s interests when he advised her to obtain cash advances on credit cards to pay her fee with the intent to have the credit card debt discharged in bankruptcy.

Respondent placed his personal interests above those of Ms. [the client] when he had sexual intercourse with her and then later convinced her to per ²⁶² form other sex acts. Ms. [the client] was in an unstable emotional state due to her pending divorce litigation and Respondent took advantage of her situation for his own personal interest. By these actions, Respondent violated Rule 1.7(b) of the Maryland Rules of Professional Conduct. “Rule 1.15(a) of the Maryland Rules of Professional Conduct states: (a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account maintained pursuant to [Title 16, Chapter 600] of the Maryland Rules.

Other property shall be identified as such and appropriately 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. “Respondent received from Ms. [the client] two checks to cover his fee and the related costs for the appeal of her divorce case in the amount of $6,500.00. Respondent’s billing records demonstrate that Respondent applied some of the funds towards other fees and did not place them into his escrow account. Rule 1.15(a) requires Ms. [the client’s funds to be held in the escrow account until Respondent had earned the fee and until the funds for costs were expended.

Respondent never earned the fee for handling the appeal. He filed the notice of appeal, then withdrew from the case without ever filing an appellate brief. The appeal was subsequently dismissed. Respondent violated Rule 1.15(a) of the Maryland Rules of Professional Conduct by failing to hold these funds in trust. “Rule 3.1 of the Maryland Rules of Professional Conduct states: A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or ²⁶³ reversal of existing law.

A lawyer may nevertheless so defend the proceeding as to require that every element of the moving party’s case be established. “Rule 3.2 of the Maryland Rules of Professional Conduct states: A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client. “Respondent engaged in a pattern of conduct of obstruction and delay to interfere in Ms. [the client’s suit against him. He filed suit against Ms. [the client], alleging defamation, then failed to file written answers to discovery and evaded attempts to be deposed. Respondent eventually voluntarily dismissed that suit. After Ms. [the client] filed suit against Respondent, he filed a bankruptcy petition on the eve of the damages hearing in order to stay the hearing.

After the stay was lifted and a new hearing date was set, Respondent had the matter removed to the United States District Court. That court returned the case to the state court, finding that Respondent’s request was not timely. Subsequently, Respondent attempted to have the settlement with Ms. [the client] dramatically reduced by the bankruptcy court, even though the parties had arranged for the settlement to be paid from other sources. Judge Schneider of the United States Bankruptcy Court eventually dismissed Respondent’s bankruptcy case for reasons stated in Pet’r Ex.

No. 21. The Respondent exceeded the bounds of normal aggressive lawyering and by his conduct, violated Rules 3.1 and 3.2 of the Maryland Rules of Professional Conduct. “Rule 3.4(d) of the Maryland Rules of Professional Conduct states that a lawyer shall not: (d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party; “Respondent did not make a diligent effort to respond to discovery in Ms. [the client’s divorce case. In the subse ²⁶⁴ quent civil actions between Respondent and Ms. [the client], Respondent failed to respond to discovery requests, defied a court order and repeatedly avoided being deposed. Respondent’s conduct violated Rule 3.4(d) of the Maryland Rules of Professional Conduct. “Rule 8.4(b) of the Maryland Rules of Professional Conduct makes it professional misconduct for a lawyer to ‘commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.’ The Court is not convinced by clear and convincing evidence Respondent raped Ms. [the client] at her home on September 9, 1993.

However, the Court is convinced by clear and convincing evidence the Respondent engaged in sexual intercourse with Ms. [the client] and, as a result, actively participated in adulterous conduct in violation of Article 27, section 3 of the Annotated Code of Maryland. Respondent’s participation in criminal conduct, 3 under these circumstances, reflects adversely on his fitness as a lawyer thereby violating Rule 8.4(b) of the Maryland Rules of Professional Conduct. “Rule 8.4(c) proscribes ‘conduct involving dishonesty, fraud, deceit or misrepresentation.’ Respondent’s conduct throughout his representation of Ms. [the client] and in the subsequent civil litigation was fraught with dishonesty. Respondent dishonestly charged Ms. [the client] for his initial consultation after advertising free initial consultations. He raised his hourly rate without informing her.

Respondent counseled and assisted Ms. [the client] in obtaining cash advances which she had no means to repay and offered to assist her in having the debts discharged in bankruptcy. Respondent dishonestly misused the bankruptcy process to interfere in Ms. [the client’s efforts to adjudicate her claim against him. After agreeing to a settlement amount, Respondent used dishonest means to attempt to avoid payment. For example, the certificate of deposit in Respon ²⁶⁵ dent’s father’s name that was assigned to Ms. [the client] was worthless because the funds had already been withdrawn despite the assignment.

Respondent’s pattern of conduct violated Rule 8.4(c) of the Maryland Rules of Professional Conduct. “Rule 8.4(d) provides it is professional misconduct for a lawyer to: ‘engage in conduct that is prejudicial to the administration of justice.’ Respondent engaged in outrageous conduct while entering into a pattern of sexual conduct with Ms. [the client] during his representation of her. This required her to take the Fifth Amendment when questioned about any relationships, resulting in serious potential damage to her divorce proceedings and, therefore, compromised the attorney-client relationship. AGC v. Goldsborough, Jr., 330 Md. 342 , 624 A.2d 503 (1993). Further, Respondent failed to be deposed or respond to discovery, defied a court order and misused the federal court and bankruptcy court to interfere in Ms. [the client’s case.

His conduct was prejudicial to the administration of justice and Respondent violated Rule 8.4(d) of the Maryland Rules of Professional Conduct.” Bar Counsel and respondent except to the finding of fact that the client, during the deposition in her divorce case and on advice of respondent, asserted her Fifth Amendment privilege against self-incrimination when asked if she had committed adultery, rather than disclose that she had a sexual relationship with respondent or others. Respondent excepts to the hearing judge’s conclusions of law that respondent’s conduct violated Rules 1.2(d), 1.3, 1.5(a) and (b), 1.15(a), 3.1, 3.2, 3.4(d), and 8.4(b) and (c).

II

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 ²⁶⁶ 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 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); 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).

A. Rule 1.7 Conflict of Interest & Rule 8.4 Misconduct The hearing judge concluded that respondent violated Rule 1.7(b) (Conflict of interest) and Rules 8.4(b) and (d) (Misconduct) when he engaged in sexual relations with his client. Although respondent does not except to the hearing judge’s conclusions that he violated Rules 1.7(b) and 8.4(d), respondent describes all of the sexual conduct between the client and himself as “consensual sex.” 11 After hearing all of the evidence, the hearing judge concluded unequivocally that the sexual conduct was not consensual. The hearing judge noted that the client was in an unstable emotional state as a result of her pending divorce litigation and that respondent took advantage of her for his personal interest. Respondent’s conduct was egregious — he made threats to the client that if she did not accede to his sexual demands, he would deliberately sabotage her case so that she would lose custody of her children.

We agree with the hearing judge’s conclusions that, for purposes of Rules 1.7(b) ²⁶⁷ and 8.4(b) and (d), the sexual conduct was not consensual in nature because, under the circumstances, it was exploitative and coercive. 12 In 2002, the American Bar Association Commission on Evaluation of the Rules of Professional Conduct (Ethics 2000 Commission) added new paragraph (j) to Model Rule of Professional Conduct 1.8, a bright-line rule which prohibits a lawyer from engaging in “sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.” Before this revision to the Rule, the Model Rules did not contain an explicit ban on lawyer-client sexual relationships. The comment to the Rule notes that because the relationship between the attorney and client is almost always unequal, a sexual relationship between the attorney and client can involve exploitation of the lawyer’s fiduciary role, thereby violating the attorney’s ethical duty not to use the trust of the client to the client’s disadvantage. See Center for Professional Responsibility, American Bar Association, Annotated Model Rules of Professional Conduct R. 1.8(j) cmt. 17, at 145 (2003). The American Bar Association, in Formal Ethics Opinion No. 92-364 (1992) disapproved of sexual relationships between attorneys and clients, concluding as follows: “A sexual relationship between lawyer and client may involve unfair exploitation of the lawyer’s fiduciary position, and/or significantly impair a lawyer’s ability to represent the client competently, and therefore may violate both the Model Rules of Professional Conduct and the Model Code of Professional Responsibility____First, because of the dependence that so often characterizes the attorney-client relationship, there is a significant possibility that the sexual relationship will have resulted from exploitation of the lawyer’s dominant position and influence and, thus, breached the lawyer’s fiduciary obligations to the client.

Second, a ²⁶⁸ sexual relationship with a client may affect the independence of the lawyer’s judgment. Third, the lawyer’s engaging in a sexual relationship with a client may create a prohibited conflict between the interests of the lawyer and those of the client. Fourth, a non-professional, yet emotionally charged, relationship between attorney and client may result in confidences being imparted in circumstances where the attorney-client privilege is not available, yet would have been, absent the personal relationship.” Many states have adopted rules addressing lawyer-client sexual relationships. 13 Other states, see, e.g., Michigan and Vermont, have rejected proposed amendments to existing rules, reasoning that amendments were unnecessary because the rules as written covered such contact sufficiently. Courts in many of the jurisdictions without an express rule prohibiting attorney-client sexual relations have found that attorney-client sexual relations violate existing rules. 14 Maryland falls within those states that declined to amend the black letter of the Rules of Professional Conduct or to ²⁶⁹ establish specific guidelines for sexual conduct of attorneys.

Although not stated explicitly in the black letter, Maryland Rule 1.7(b), Conflict of Interest, does prohibit sexual relationships between attorneys and their clients under certain circumstances. The comment to the Rule, added effective July 1, 1997, provides in relevant part as follows: “A sexual relationship with a client, whether or not in violation of criminal law, will create an impermissible conflict between the interests of the client and those of the lawyer if (1) the representation of the client would be materially limited by the sexual relationship and (2) it is unreasonable for the lawyer to believe otherwise. Under those circumstances, client consent after consultation is ineffective. See also Rule 8.4.” Rule 1.7 cmt.

Similarly, the comment to Rule 8.4 makes clear that sexual misconduct may violate paragraph (d) of the Rule as constituting conduct prejudicial to the administration of justice. The comment to the Rule provides in relevant part as follows: “Sexual misconduct or sexual harassment involving colleagues, clients, or co-workers may violate paragraph (d). This could occur, for example, where coercion or undue influence is used to obtain sexual favor in exploitation of these relationships.” Rule 8.4 cmt. 15 Although the Maryland Rules of Professional Conduct do not address explicitly respondent’s conduct, we hold that ²⁷⁰ respondent’s conduct violated Rules 1.7 and 8.4. See In re Ashy, 721 So.2d 859, 864 (La.1998) (stating that while Louisiana Rules of Professional Conduct do not specifically address sexual relationships between attorneys and clients, such conduct violates Rules 1.7 and 8.4); In the Matter of Piatt, 191 Ariz. 24 , 951 P.2d 889, 891 (1997) (holding that unwanted sexual advances to client by attorney violated Arizona Rule of Professional Conduct 1.7(b)); Matter of Grimm, 674 N.E.2d 551, 554 (Ind.1996) (holding that attorney’s sexual involvement with his client violated Indiana Rule of Professional Conduct 1.7(b)).

The hearing judge found that respondent made threats to the client that if she did not cooperate with him and accede to his sexual demands, he would deliberately sabotage her case so that she would lose custody of her children. Respondent’s conduct goes to the very core of legal representation and is egregious. Even though states have adopted different approaches to the issue of sexual relations between attorneys and clients, 16 ²⁷¹ it is uniformly held that unwanted sexual advances, usually considered exploitation, by an attorney to a client violate the Rules of Professional Conduct. Unquestionably, demanding sexual contact with a client and conditioning legal representation on sexual contact is exploitative and violative of the rules.

The hearing judge found that respondent’s adulterous conduct violated Rules 8.4(b) and (d). Respondent does not except to the judge’s finding that he violated 8.4(d) but argues only that the appropriate sanction for engaging in consensual sexual conduct with a client should be a reprimand. Respondent excepts to the conclusion that he violated 8.4(b), arguing that because adultery is a misdemeanor, punishable only by a $10.00 fine, committing the “crime” of adultery cannot reflect adversely on his, or any person’s, fitness as a lawyer. Unlike many other states, see, e.g., Connecticut, adultery is still a crime in Maryland.

See Md.Code (2002, 2003 Cum. Supp.) § 10-501 of the Criminal Law Article. Originally, Rule 8.4(b) applied to offenses of “moral turpitude” but is not so limited today. 17 The comment to Rule 8.4 reads in relevant part as follows: “Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offense carry no such implication.

Traditionally, the distinction was drawn in terms of offenses involving ‘moral turpitude.’ That concept can be construed to include offenses concerning some matters of personal ²⁷² morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, or breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.” We need not decide whether committing such a “criminal act,” in and of itself and unconnected to the practice of law, in the context of contemporary moral values, may or may not reflect adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects because in this case, respondent’s conduct reflected adversely on his fitness to practice law.

The sexual conduct was exploitative and coercive, and that alone reflects adversely on his fitness to practice law. In addition, the adulterous conduct arose during respondent’s representation of the client in a divorce matter. Finally, the conduct was in violation of Rule 8.4(d) and was prejudicial to the administration of justice. Respondent’s engaging in sexual relations with his domestic relations client was an inherent conflict of interest in violation of Rule 1.7(b).

Many states have held that engaging in sexual intercourse with a client while representing the client in a contested divorce and custody action is a per se violation of the Rules of Professional Conduct, even if the sexual conduct is consensual. See, e.g., People v. Zeilinger, 814 P.2d 808, 810 (Colo.1991) (holding that attorney’s sexual relationship with divorce client created an impermissible conflict of interest due to danger, among others, that attorney may be called as a witness and inflict harm on the client);