Attorney Grievance Commission v. Gisriel

BATTAGLIA, J. Michael Gisriel, (“Gisriel” or “Respondent”), was admitted to the Bar of this Court on December 29, 1976. On March 19, 2008, the Attorney Grievance Commission (“Petitioner” or “Bar Counsel”), acting pursuant to Maryland Rule 16-751(a), 1 filed a petition for disciplinary action against Gisriel, charging numerous violations of the Maryland Rules of Professional Conduct (“MRPC” or “Rule”), including Rule 1.1 (Competence), 2 Rule 1.3 (Diligence), 3 Rule 1.4 (Communication), 4 Rule ³³⁷ 1.15 (Safekeeping Property), 5 Rule 3.1 (Meritorious Claims ³³⁸ and Contentions), 6 Rule 8.1 (Bar Admission and Disciplinary-Matters), 7 and Rule 8.4 (Misconduct). 8 The charges involved ³³⁹ Gisriel’s representation of Kenneth J. Barnhart and his wife, Marcia. This Court referred the matter to Judge Timothy J. Martin of the Circuit Court for Baltimore County for a hearing to determine findings of fact and conclusions of law pursuant to Maryland Rule 16-757. 9 ³⁴⁰ On November 19, 2008, Judge Martin held an evidentiary hearing, during which Gisriel represented himself. By order dated December 18, 2008, we granted an extension for filing the Findings of Fact and Conclusions of Law until February 4, 2009.

On January 23, 2009, Judge Martin issued Findings of Fact and Conclusions of Law (“Findings”), in which he found, by clear and convincing evidence, that Gisriel’s acts and omissions constituted violations of Rules 1.1, 1.3, 1.4, 1.15, 3.1, 8.1, and 8.4: Findings of Fact To the extent these findings of fact are based upon Petitioner’s evidence, they are found by clear and convincing evidence. To the extent they are based upon Respondent’s evidence, they are found by a preponderance of evidence. The facts found are as follows: 1. Michael Gisriel (Respondent) was admitted to the Bar of the Court of Appeals of Maryland in December 1976. 2.

Thereafter Respondent practiced primarily in real estate law, deeds, land use, and real estate settlements. 3. Respondent has some limited experience in commercial litigation. 4. During times relevant to this matter, Respondent maintained an office for the practice of law in Towson, Baltimore County, Maryland. He operated with other attorneys in a law firm known as the Law Offices of Foard, Gisriel, O’Brien & Ward, L.L.C. 5.

For approximately six years Respondent hosted a real estate radio show, and for three years wrote a question and answer column on real estate matters for the Baltimore Sun. As a result, the Respondent received numerous requests for pro bono service and provided same from time to time. ³⁴¹ 6. On February 16, 2002, Kenneth J. Barnhart and his wife, Marcia Barnhart, (Barnharts) signed a Residential Contract of Sale for the purchase of real property in Frederick County, Maryland. The contract was submitted through the Barnharts’ agent, Len Moyer/Remax Columbia (Moyer/Remax), to Leonard Martin of Gold Key Real Estate (Martin & Gold Key), agent for the seller, John Dunenfeld (Dunenfeld). 7.

The Barnharts made a $5,000 deposit by check which was held by Moyer.[ 10 ] 8. The contract signed by the Barnharts contained a mediation provision which mandated that neither party could initiate any legal action without first submitting any claim arising out of the contract to mediation. 9. For various financial reasons, the Barnharts could not consummate the transaction with Dunenfeld and sought to terminate the contract. 10. On March 9, 2002 the Barnharts tendered an agreement to terminate the contract to Dunenfeld. 11.

Dunenfeld refused their tendered agreement to terminate the contract. 12. A third party referred the Barnharts to the Respondent for legal assistance in this matter. 13. On March 18, 2002, K. Barnhart met with the Respondent for the first time. After a brief discussion with the Respondent, K. Barnhart retained the Respondent to assist him and his wife in terminating the contract and recovering the $5,000 deposit. ³⁴² 14.

During this meeting with K. Barnhart, Respondent was privy to the original contract of sale and all other relevant documents. Neither K. Barnhart nor the Respondent could remember if the Respondent read this contract during the initial meeting. 15. K. Barnhart paid the Respondent $500 to accomplish the desired result with no agreement as to future expenses of Respondent and without any written retainer agreement. 16. On the same day (March 18, 2002), the Respondent faxed and mailed a letter to Martin (Gold Key) regarding the termination of the contract.

The Respondent alluded to three reasons for the termination and indicated: “therefore, there has been no true meeting of the minds and the contract is a nullity and is hereby terminated.” By this letter, Respondent requested the return of the deposit check. 17. The Respondent received no response to this letter. 18. At some point subsequent to the initial meeting of the Respondent with K. Barnhart, K. Barnhart asked his wife, M. Barnhart, to handle this matter and be the primary contact by and between the Respondent and the Barnharts. The majority of the communications between the Barnharts and the Respondent thereafter was made by M. Barnhart, who is now deceased. 19.

In June or July of 2002, as a result of the Respondent’s efforts, Respondent determined that Dunenfeld had sold the property to a third person in June of 2002. Neither he nor the Barnharts were notified of this fact by Moyer, Martin, or Dunenfeld. 20. At no time prior to the Respondent learning of the sale of the Dunenfeld property had Dunenfeld invoked the mediation provision contained in the contract of sale. No mention of it had been made by either side. 21.

Between March 18 and July 9, 2002 the Respondent made occasional telephone calls to Martin regarding this matter. ³⁴³ 22. Respondent received no meaningful or satisfactory response to these inquiries. 23. On July 9, 2002, the Respondent wrote Martin indicating his knowledge of the sale of the subject property and making yet another demand for the return of the deposit. In that letter he indicated that absent resolution, suit would have to filed. 24.

Respondent received no real response to the July 9 letter. Both he and the Barnharts were frustrated at the lack of response and failed resolution of this matter. 25. At no time between July 9 and August 15, 2002 did Martin or Dunenfeld suggest or invoke mediation to resolve this dispute. 26. Respondent discussed the filing of a lawsuit with K. Barnhart against Moyer, Martin, and Dunenfeld sometime in the latter part of July and early part of August, 2002. 27.

The Barnharts had no legal training and were completely dependent on the Respondent as to the advisability of filing said litigation. 28. The Respondent believed that the only way to get the attention of Dunenfeld or Martin was to initiate litigation. The Respondent believed that the contract had been terminated by the lack of any response, Dunenfeld’s sale of the property, and believed that the contract was a nullity. 29. Prior to initiating the litigation, the Respondent discussed this matter with Phil Foard, a litigator in his office.

The Respondent believed that seeking punitive damages would get the other party to negotiate this matter. 30. Respondent never discussed mediation with the Barn-harts as an alternative to a resolution of his dispute. 31. Having received no response from Dunenfeld or Martin, Respondent filed a complaint against Moyer (and Re-max), Martin (and Gold Key), and Dunenfeld in the Circuit Court for Frederick County on or about August 15, 2002. He sought a return of the $5,000 deposit and punitive damages from all parties. ³⁴⁴ 32.

The complaint alleged no facts which could possibly have represented a cause of action against Moyer/Remax. The complaint failed to state any facts suggesting malice, bad faith, evil motive, intent to injure, ill will, or fraud on the part of Martin, Gold Key, or Dunenfeld. No deliberate wrongdoing was alleged. The Respondent simply represented certain facts in a declaratory way and demanded punitive damages. 33.

The Respondent brought the action not because he actually believed that punitive damages would lie but to get the attention of the parties. This he admitted to the court. 34. The Respondent re-sent the July 9, 2002 letter to Martin on September 16, 2008. 35. Respondent again received no response from Martin or Dunenfeld. 36.

The litigation was initiated two and a half to three months after the house had been sold to a third party and six months after the Barnharts had signed the contract. 37. The Respondent did not serve the suit upon the Defendants until late October, 2002 in the hope and anticipation that he would receive a response from Martin or Dunenfeld. None was forthcoming. 38. Sometime after the litigation was instituted, the Respondent discussed the status of fees with the Barnharts and requested additional monies to continue to represent them. 39.

In early February, 2003 the Respondent sent the Barn-harts a bill for $1,350 for services already rendered. 40. K. Barnhart understood that, as the matter escalated, there would be more fees involved. 41. Sometime in early February, 2003, K. Barnhart indicated to the Respondent that he could not or would not pay additional fees. He wanted to put a stop to the Respondent’s representation. 42.

Prior to any court appearance, the Barnharts decided to take over their own case and advised the Respondent that he was out, i.e. no longer representing them. ³⁴⁵ 43. The Barnharts and the Respondent agreed to the Respondent’s withdrawal from the case as their attorney and the Respondent, in exchange for his withdrawal and their agreement, waived any fees previously owed by them. 44. On November 25, 2002 Martin ( & Gold Key) moved to dismiss the complaint and filed a counter-complaint for attorney’s fees per Rule 1-341. 45. In December, 2002 Moyer ( & Remax) answered the complaint and filed a cross-claim for Interpleader (seeking $500 against the $5,000 for costs incurred). 46.

On January 30, 2003 Dunenfeld moved to dismiss and for attorney’s fees. 47. A hearing was scheduled for February 19, 2003 to address the open motions in the litigation. 48. On February 6, 2003, the Respondent requested a postponement of the motions hearing. 49. On February 13, the Circuit Court denied the Respondent’s request for postponement. 50.

On February 19, a snow storm prevented the Respondent from attending the motions hearing and he filed a motion for continuance and an affidavit to that effect. 51. By order of March 14, 2003 the Circuit Court continued the motions hearing to May 21, 2003. 52. After the conversation with the Barnharts with respect to further representation, the Respondent filed a motion for leave to strike his appearance along with an affidavit. This motion was filed on May 2, 2003. 53.

The Respondent filed no written response to the motions of Moyer ( & Remax), Martin ( & Gold Key), or Dunenfeld. 54. A motions hearing took place on May 21, 2003. The Respondent did not attend. M. Barnhart appeared alone. 55.

At this hearing, the judge denied the Respondent’s written motion to strike his appearance but granted the oral motion to stnke of M. Barnhart. At that point, the Plaintiffs (Barnharts) were pro se. (This court’s emphasis). ³⁴⁶ 56. At this motions hearing, the court granted Moyer/Remax’s cross-claim for Interpleader, ordered that the clerk accept $4,500 into the registry of the court, ordered $500 to Remax for costs incurred, and dismissed the Barnhart’s complaint against Moyer/Remax and Dunenfeld with prejudice. 57.

The court reserved ruling on all claims for attorney’s fees at the May 21, 200[3] hearing. 58. On or about May 28, 2003 Martin (Gold Key) filed a supplemental motion for attorney’s fees attaching certain fee worksheets. 59. On or about June 4, 2003 Dunenfeld filed a Rule 1-341 motion for attorney’s fees against the Respondent, his law firm, or, in the alternative, against the Barnharts. James Stuart was counsel for Dunenfeld.

Attached to the motion was Mr. Stuart’s invoice and third person affidavit as to the reasonableness and fairness of his bill. 60. On or about June 11, 2003 Respondent, on his behalf and on his firm’s behalf filed an opposition to Martin’s and Dunenfeld’s Rule 1-341 motion for fees. 61. On June 25, 2003 Dunenfeld responded to the Respondent’s opposition and again requested attorney’s fees in the amount of $2,397.50 against either the Respondent and his firm or against the Barnharts. 62. A hearing on the extant motions was scheduled for Tuesday, September 23, 2003.

The Respondent requested a postponement thereof by request filed on August 11, 2003. 63. On August 2, 2003, the Respondent filed a counter-motion for attorney’s fees pursuant to Rule 1-341. This was brought against Martin (Gold Key), R. Mercer Jr. Esq., their attorney, as well as Dunenfeld and J. Stuart, his attorney. Attached to this motion was an affidavit by a Philip O. Foard, Esq. as to the fairness and reasonableness of the Respondent’s fees. 64.

Martin and Gold Key filed its opposition to the Respondent’s counter-motion for the Barnharts on August 21, 2003. ³⁴⁷ 65. After the court granted the Barnharts’ oral motion to strike the Respondent’s appearance, the Respondent was representing himself and his firm with respect to the fee dispute. 66. On August 18, 2003 Martin and Gold Key filed an opposition to the postponement request of the Respondent. 67. On September 4, 2003 the court denied the Respondent’s request for a postponement of the September 23, 2003 hearing. 68.

On September 23, 2003, the hearing took place before Judge Stepler on the issue of fees. Counsel for Moyer, Dunenfeld, and Martin (Gold Key) appeared as well as the Respondent. The Barnharts were not present. The Respondent made arguments on behalf of himself, his firm, and the Barnharts notwithstanding that his appearance had been previously stricken, (court’s emphasis).

The court heard arguments and awarded $2,642.50 to Dunenfeld against the Respondent and his firm; $2,733.57 to Meier, counsel for Martin (Gold Key) against the Respondent and his firm, and $1,963.57 to Meier (Martin & Gold Key) against the Barnharts. 69. Judgments were entered reflecting the above. 70. The Respondent paid and satisfied the judgments entered against him, his firm, and the Barnharts. The Barn-harts contributed no funds towards the satisfaction of these obligations, nor were they requested to do so by the Respondent. 71.

The Barnharts had no knowledge of the entry of the judgment against them or the judgments against the Respondent and the Respondent did not advise them of the result of the September hearing. K. Barnhart discovered this fact while going through some papers in late 2005 and early 2006. 72. The Barnharts had no communications with the Respondent as to the hearing or as to his satisfaction of the judgments. ³⁴⁸ 73. In June of 2004, the Barnharts, pro se, went to mediation with Dunenfeld and agreed to an ultimate distribution of the $4,500 held in the court registry.

The mediation agreement was unknown to the Respondent. 74. On June 29, 2004 the Barnharts and Dunenfeld filed a joint motion to release the funds. On July 8, 2004 the court ordered the release of the funds, $3,500 to Dunenfeld and $1,000 to the Barnharts. This was unknown to the Respondent. 75.

On July 19, 2004 a check in the amount of $1,000 was drawn by the clerk of the circuit court and made payable to the Barnharts alone. 76. On or around that date, the clerk of the court erroneously mailed the check made payable to the Barnharts to the Respondent’s address in Towson, Maryland. 77. The Respondent did not know the purpose or reasons for the issuance of the $1,000 check. 78. The Respondent signed the names of the payees, K. and M. Barnhart and wrote, “pay to the order of Michael Gisriel” on the check. 79.

The Respondent believed that he was entitled to these funds as he had paid the judgment of the Barnharts. 80. The Respondent deposited the check in his operating, not escrow, account and used the funds for business and personal purposes. 81. The Respondent did not notify the Barnharts of the receipt of the check. 82. The Respondent had no authority, express or implied, to endorse the Barnharts’ names and had no authority to negotiate the check and keep the funds as his property. 83.

After a month or so, and having not received the anticipated check, the Barnharts inquired about the check to the clerk’s office in the Circuit Court for Frederick County. 84. The Barnharts eventually received a copy of the check and realized the Respondent had signed their names and deposited the check in his firm account. The Barnharts were offended and upset. ³⁴⁹ 85. The Barnharts called the Respondent to inquire but received no phone call(s) in return from the Respondent. 86.

K. Barnhart contacted the State’s Attorney’s Office for Frederick County but no action was taken. 87. On or around April 19, 2007, M. Barnhart filed a grievance against the Respondent with respect to the facts and the circumstances of this matter and sought to recoup the $1,000. 88. On April 23, 2007 Bar Counsel sent correspondence to the Respondent attaching M. Barnhart’s complaint seeking Respondent’s response to same. 89. The Respondent answered Bar Counsel’s inquiry with a letter dated May 1, 2007.

In that correspondence, the Respondent explained the circumstances as he saw them, admitted to the receipt of the $1,000, but stated that he had contacted the Barnharts and explained the situation. Furthermore, the Respondent indicated that the Barnharts had agreed, at that time, that he should keep the $1,000 in partial payment for the $3,313.37 which was still owed to him. (Court’s emphasis). 90. This court is unpersuaded that the Respondent ever communicated with the Barnharts about receiving the $1,000 and certainly does not accept the Respondent’s assertions that the Barnharts agreed that the Respondent could keep the funds. 91.

Furthermore, the Respondent’s contention that he sent a letter dated October 5, 2004 to the Barnharts explaining all that had occurred is not accepted by this court. The Barnharts (K.Barnhart) denied the receipt of this letter and this court finds that the Barnhart’s never received such letter and never communicated with the Respondent in 2004 about the $1,000 check. 92. M. Barnhart died in August, 2007. 93. After the grievance process started, K. Barnhart made affidavit averring that he had received the disputed $1,000 in the fall of 2007 from the Respondent and also his acceptance of the Respondent’s apology and withdrew his ³⁵⁰ complaint against the Respondent, indicating his complaint had been satisfied and released.

The Respondent had returned the $1,000 to K. Barnhart on or about November 5, 2007 following a Peer Review Panel Hearing. 94. A cover letter directed to the Court of Appeals was signed by K. Barnhart indicating that he has no desire to see sanctions against the Respondent which would deprive him of the ability to practice in his chosen profession and thereby provide for his family. In assessing these facts, Judge Martin made the following-conclusions of law: Conclusions of Law This court is persuaded by clear and convincing evidence that the following Rules of Professional Conduct have been violated: I) 1.1 Competence: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

This court considered the relevant factors with respect to the issue of legal knowledge and skill to be employed. The court has considered the relative complexity and specialized nature of the matter, the Respondent’s general experience, especially in the field in question, the preparation and study the Respondent was able to give the matter, whether he should have referred the matter to or associated or consulted with a lawyer of established competence. See comments to Rule 1.1. In this case Petitioner argues that there was a failure of the Respondent to inform the Barnharts of the terms of the contract.

This court does not find necessarily that this is so. The Respondent certainly did not specifically discuss mediation or counsel fees, but there must have been enough discussion about the facts and circumstances for him to tender the March 18, 2002 letter and give the three reasons for terminating the contract and his position ³⁵¹ that the contract was a nullity. Petitioner urges this court to look at the result and focus retrospectively. This court rather feels it is appropriate to start at the beginning and look prospectively.

The Respondent had substantial experience in dealing with real estate matters, but little with litigation. He took the position that the contract was a nullity and maintained it for a long time. When Dunenfeld sold the property, without advising the Respondent or the Barnharts, he was even more convinced that the contract was a nullity, as of then incapable of performance. He would not have been thinking of mediation or counsel fees.

He simply wanted contact and negotiation. Perhaps he was careless or even negligent and his erroneous conclusion that the contract was a nullity certainly was fatal to the case, but this court does not find by clear and convincing evidence a failure of competence relating to discussions or information to the client. See AGC v. Kemp, 335 Md. 1 , 641 A.2d 510 (1994). However and unfortunately, the Defendants filed motions to dismiss directed at his clients and he failed to timely respond.

In truth he did nothing. He was still attorney of record but took no position for the Barnharts. These were the motions filed in November, 2002 and January, 2003. His failure is inexplicable to this court and certainly evidences a failure to demonstrate the requisite knowledge and skill required of him.

This does indeed represent incompetence and this court so finds. Furthermore, notwithstanding an agreement with the Barnharts that they would “take it from here” the Respondent’s failure to appear at the May 21, 2003 hearing is again inexplicable and quite telling. The Respondent had no right to assume that his appearance had been stricken and certainly no right to simply not attend the hearing. This court must infer that Judge Stepler was most aggravated by his absence, which indeed did not bode well for the further conduct of the case.

The Respondent’s argument that they do things differently in Frederick County (as opposed to Baltimore County) cannot and does not represent an accept ³⁵² able excuse. As continuing counsel, he was duty bound to appear at the hearing and be prepared to represent the Barnharts. He did not attend and M. Barnhart appeared alone, a layperson facing several lawyers across the table. Certainly this was a fact not unnoticed by Judge Stepler.

To this court this represented a failure of representation and a failure to provide the skill, legal knowledge, thoroughness, and preparation required of him. Unfortunately, it was a complete lack of representation. See AGC v. Mooney, 859 Md. 56 , 753 A.2d 17 (2000); AGC v. Tinsky, 377 Md. 646 , 835 A.2d 542 (2003). II) 1.3 Diligence: A lawyer shall act with reasonable diligence and promptness in representing a client.

As the comments indicate, a lawyer should pursue a matter on behalf of a client despite opposition, obstruction, or personal inconvenience to the lawyer, and may take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. Certainly the Respondent knew upon receiving the motions to dismiss that mediation was an issue as well as counsel fees. Inexplicably, as indicated above, he did not respond to the motions nor discuss with the Barnharts what the end result could be. The conduct as described in Paragraph I certainly provides clear and convincing evidence that the Respondent did not act with reasonable diligence and promptness.

See AGC v. Zdravkovich, 362 Md. 1 , 762 A.2d 950 (2000); AGC v. Brugh, 353 Md. 475 , 727 A.2d 913 (1999). This court so finds. III) 1.4 Communication: (a) A lawyer shall keep a client reasonably informed about the status of the matter and promptly comply with reasonable requests for information. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. ³⁵³ Reasonable communication between the lawyer and the client is necessary for the client effectively to participate in the representation.

See Comment 1 (this court’s emphasis). The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so. Adequacy of communication depends in part on the kind of advice or assistance that is involved. In litigation, a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that are likely to result in significant expense or to injure or coerce others.

See Comment 5 to this Rule. As the court indicated in paragraph I, this court does not find that the Respondent did not reasonably keep his clients informed regarding the status of this case until the ultimate decision was made to initiate litigation against all the parties. However, at that point, the Respondent did not meet the requirement that he reasonably inform the Barnharts by explaining the matter to them in a manner reasonably necessary to permit them to make informed decisions. In this, the Respondent was utterly lacking.

The Barnharts knew nothing about the mediation requirement, knew nothing of the fact that mediation was required before filing litigation, and certainly knew nothing about possible sanctions, i.e. fees, etc., which could befall them in this regal’d. The Respondent’s failure to communicate with the Barnharts was compounded when he failed to advise them of the result of the attorney fees hearing. Even though he was not officially their counsel of record, he admitted arguing their position at the September 28, 2002 hearing. The results certainly affected them and the situation was made worse by his failing to advise them of the judgment against them.

He failed to advise them of his satisfaction of the judgments and exacerbated his failures to communicate upon his receipt of the check, his actions thereafter, and his utter failure to keep them advised of these circumstances. His explanations of his attempts to do so were completely unpersuasive to this court. ³⁵⁴ The court finds a failure to communicate by the Respondent and a violation of Rule 1.4(a) and (b). See Taylor v. Feissner, 103 Md.App. 356 , 653 A.2d 947 (1995); AGC v. Harris, 371 Md. 510 , 810 A.2d 457 (2002); See Mooney, 359 Md. 56 , 753 A.2d 17 (2000). IV) 1.15 Safekeeping Property: (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. (b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person.

Except as stated in this Rule or othenvise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property. (c) When in the course of representation a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interests. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved. All property of clients or third persons, including prospective clients, must be kept separate from the lawyer’s business and personal property and, if money, in one or more trust accounts. ³⁵⁵ Normally, it is impermissible to commingle the lawyer’s own funds with client funds.

See Comments to Rule 1.15. Respondent’s position that he kept the one thousand dollar check, made payable solely to the Barnharts, as payment for funds he had expended in satisfying the judgment against the Barnharts is wholly unacceptable to this court. He was clearly duty bound to deposit the check in a separate account and he admittedly failed to do so. Without authority or consent, he deposited the check in his operating account and used the funds for personal or business purposes.

As indicated, he failed completely to notify the Barnharts of his receipt of the check and certainly rendered no accounting to them which would have indicated his position and reasons for keeping the funds. The obvious question this court addresses is how could the Barnharts even take a position regarding the check when they knew nothing about it? They had no clue of any of the circumstances and anticipated the check which, unfortunately, was directed to the Respondent. The Respondent obviously commingled their funds with his funds.

These actions constitute multiple violations of Rule 1.15, specifically 1.15(a)(b)(c). V) 3.1 Meritorious Claims and Contentions: 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 reversal of existing law. A lawyer may nevertheless so defend the proceeding as to require that every element of the moving party’s case has been established. The advocate has a duty to use legal procedure for the fullest benefit of the client’s cause but also a duty not to abuse legal procedure.

What is required of lawyers is that they inform themselves about the facts of their clients’ cases and the applicable law and determine that they can make good faith arguments in support of their clients’ positions. See Comments 1 & 2. ³⁵⁶ This court is perplexed as to what exactly the Respondent was thinking when he filed the lawsuit against all the parties. He had never invoked the mediation provision, notwithstanding the mandate of the contract, and simply sued everyone claiming punitive damages and a return of the deposit. To this court, the lawsuit had no merit.

There was no basis for doing so that was not frivolous. There was no basis for punitive damages and none was alleged. There was no basis whatsoever to sue Moyer/Remax who were no more than stakeholders. The contract clearly provided steps to be taken by Moyer in the event of a dispute.

The respondent never gave them the ability to do so and completely ignored this provision. There was no basis to sue Martin or Gold Key. The Respondent knew that they were not holding the deposit, he alleged no basis for punitive damages against them. See Darcars Motors of Silver Springs, Inc. v. Borzym, 379 Md. 249 , 841 A.2d 828 (2004).

He simply included Martin/Gold Key in his shotgun approach to get everyone’s “attention.” These actions were clearly violations of Rule 3.1. There were no allegations of knowing or deliberate wrongdoing by Dunenfeld. Id. All the defendants were required to seek counsel, all incurred expenses, all filed responsive hearings, and none of this was necessary but for the actions of the Respondent.

Although not evidence of a violation of this rule as such, it is certainly clear to this court in the conclusions of the trial judge in granting the fees and sanctions against the Respondent and Barnharts that she believed the Respondent’s lawsuit had no merit. See AGC v. Brown, 353 Md. 271 , 725 A.2d 1069 (1999). The Respondent’s supplemental counter complaint for attorney’s fees was without merit. It appeared to be, for the most part, a mere recitation of the very reasons given by the defendants in their motions against the Respondent and Barn-harts.

The Respondent’s actions in filing the lawsuit and the supplemental counter complaint for fees were without merit and had no basis not frivolous in nature. The legal process should never be used as the Respondent did here, ³⁵⁷ i.e., merely a device to apply pressure to the other parties to secure the return of the deposit, actions which completely backfired. These actions represent violations of Rule 3.1. VI) 8.1 Bar Admission and Disciplinary Matters: An applicant for admission or reinstatement to the bar, or a, laivyer in connection with a bar admission application or in connection with a disciplinary matter, shall not: (a) knowingly make a false statement of fact; or (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or■ knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this Ride does not require disclosure of information otherwise protected by Rule 1.6.

Regrettably, the Respondent was untruthful to Bar Counsel in his response to its inquiry (See Respondent’s letter of 5/1/07). Although this court does not necessarily find untruth or falsity in his description of the trial judge’s ruling which could merely represent his subjective feelings and viewpoint, the Respondent knowingly made false statements by indicating that he had contacted the Barnharts, explained the situation to them, and that they agreed, at that time, that he could keep the one thousand dollars, (court’s emphasis). These statements are anything but the truth. Additionally, this court does not accept his response that he sent a letter dated October [5], 2004 to the Barnharts.

The Respondent’s position, to this court, is a fabrication made after the fact and unacceptable. His actions made much worse the already bad situation he had found himself in. These acts clearly and convincingly persuade this court that he violated Rule 8.1(a). VII) 8.4 Misconduct: It is professional misconduct for a lawyer to: ³⁵⁸ (a) violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another; ...

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; .... This court has found a violation by the Respondent of Rules 1.1, 1.3, 1.4, 1.15, 3.1, and 8.1. As such, these violations are professional misconduct in violation of Rule 8.4(a) and this court so finds. Honesty is of paramount importance in the practice of law.

See AGC v. Ellison, 384 Md. 688 , 867 A.2d 259 (2005). Candor and truthfulness are two of the most important moral character traits of a lawyer. See AGC v. Myers, 333 Md. 440 , 635 A.2d 1315 (1994). This court concludes, by clear and convincing evidence, that from the point in time whereupon the Respondent received the one thousand dollar check, he engaged in conduct involving dishonesty, fraud, deceit, and misrepresentation.

He never told the Barnharts of any obligation he felt they owed him. They knew of none. He never told them of the receipt of the check. He never had authority or consent to endorse their names.

He forged their names. He kept their funds without their consent. His actions, his forgery, violated the Rules and Criminal Law Article Section 8-602. See AGC v. James, 333 Md. 174 , 634 A.2d 48 (1993).

Even if the Respondent’s tortured explanation of why he did what he did could somehow be accepted, he was not entitled to simply use self help by keeping their funds. See AGC v. Sheridan, 357 Md. 1 , 741 A.2d 1143 (1999). Unfortunately, this court is of a mind that the Respondent believed the Barnharts did not know of this check and they would never be the wiser. This is clearly dishonesty.

His commingling of their funds with his funds involved dishonesty, fraud, deceit, or misrepresentation. See Bar Association of Baltimore City v. Carruth, 271 Md. 720 , 319 A.2d 532 (1974). ³⁵⁹ The totality of the Respondent’s actions represented conduct prejudicial to the administration of justice by his acting in such a manner which would seriously impair public confidence in the legal profession. See AGC v. Robertson, 400 Md. 618 , 929 A.2d 576 (2007). His forgery and misappropriation of the Barnharts’ funds is likely to impair the public confidence in the legal profession.

This court by clear and convincing evidence finds a violation of Rule 8.4(a)(c) & (d). This court feels compelled to make further remarks. The court recognizes that the sum of money involved is perhaps not huge. This court recognizes that the Respondent eventually returned the money to the Barnharts (although rather late in the disciplinary proceedings this court might add).

This court recognizes that the Respondent paid the judgment against the Barnharts and they had been made whole. This court is aware of Mi*. Barnhart’s magnanimous expression of forgiveness and support for the Respondent. However, this court is disheartened by the Respondent’s rather cavalier attitude towards the facts, circumstances, and these proceedings.

His apology to the Barnharts was late coming and appeared to be conditioned upon their forgiveness of him. He complains bitterly of Petitioner’s actions as virtually a witch-hunt (this court’s words) and did not truly express any contrition or self-awareness of what had occurred in this matter. These observations are as disheartening as the Respondent’s actions in the matter under scrutiny. Following the issuance of the judge’s Findings of Fact and Conclusions of Law, Gisriel obtained counsel and moved to reopen the record and have additional hearings based upon a proffer of newly-discovered evidence that showed he did not fabricate an October 5, 2004, letter to his clients, alluded to in Paragraph 91 of Judge Martin’s findings, which figured in the hearing judge’s conclusion that Rule 8.1 was violated.

On March 3, 2009, we granted Respondent’s motion and remanded the matter to Judge Martin for the limited purpose of conducting a supplementary evidentiary hearing on or before ³⁶⁰ March 27, 2009, and filing any supplementary findings of fact and conclusions of law. Judge Martin conducted a supplementary hearing and filed Supplementary/Amended Findings of Fact and Conclusions of Law (“Amended Findings”), in which he found, by clear and convincing evidence, that Gisriel’s acts and omissions constituted violations of Rules 1.1, 1.3, 1.4,1.15, 3.1, and 8.4, but not of Rule 8.1: FACTS The following finding of facts are amended or supplemented; Number 71 is amended to read: Until September 30, 2004, when Respondent and M. Barnhart discussed this matter by telephone, the Barnharts had no knowledge of the entry of the judgment against them or the judgments against the Respondent, did not know of the results of the September, 2003 hearing, nor the fact that the Respondent had paid the judgments. Number 72 is amended to read: Until September 30, 2004, the Barnharts had no communication with the Respondent as to the September, 2003 hearing or as to his satisfaction of the judgments. Number 81 is amended to read: Until September 20, 2004,[ 11 ] the Respondent did not notify the Barnharts of his receipt of the check.

Number 85 is amended to read: The Barnharts called the Respondent to inquire about the check and the Respondent made efforts to call the Barnharts but they had no communication until the September 30, 2004 telephone conversation. ³⁶¹ Number 90 is amended to read: Until September 30, 2004, approximately two months after the Respondent received the check, Respondent did not communicate with the Barnharts about receiving the $1,000. The Respondent and M. Barnhart discussed the $1,000 check on September 30, 2004 and Respondent explained his position to M. Barnhart. The Respondent’s letter of October 5, 2004 confirmed their discussion and requested that the Barnharts let Respondent know if they still believed Respondent owed them the money. No communication between the Respondent and Barnharts occurred after the September 30, 2004 conversation until after the grievance process was initiated a lew years later.

Number 91 is amended to read: Respondent’s contention that he sent a letter dated October 5, 2004 is accepted by this court. The Respondent mailed the letter to the Barn-harts but this court is unclear as to whether the Barnharts actually received the letter. The first actual communication between the Barnharts and Respondent occurred September 30, 2004, more than one year after the attorneys’ fees hearing. CONCLUSIONS OF LAW This court’s conclusions of law that Respondent violated Rule 1.1, Competence, 1.3, Diligence, and 3.1, Meritorious Claims and Contentions are unaffected by this court’s supplemental/amended findings of fact and remain unchanged.

Rule 1.4 Communication: As this court stated previously, the court was not persuaded by clear and convincing evidence that Respondent did not reasonably keep the Barnharts informed regarding the status of their case so that they could participate intelligently in the decisions regarding their objectives up to and at the point of initiating litigation. However, with respect to the advisability of this litigation, the determination to seek punitive damages, and the possible sanctions which could befall them, none were ever explained to the ³⁶² Barnharts by Respondent. The attorneys’ fees hearing took place on September of 2003. Respondent failed to advise them of the results of this hearing until, at best, September of 2004, more than one year later, (court’s emphasis).

The results of the hearing certainly affected them and Respondent was completely silent. He failed to advise them of the judgment against him, them, and his satisfaction of all the judgments until a year later. He failed to advise them of his receipt of the $1,000 check until, at best, two months after his receipt of same. All of these facts persuade the court by clear and convincing evidence that Respondent failed to reasonably communicate with them as required by this rule.

The court adds that Respondent’s conversation with M. Barnhart (finally) and his follow-up with the October 5, 2004 letter do mitigate, to a large extent, the severity of his violation(s) of this rule. They do not, however, alter this court’s fundamental conclusions. Rule 1.15 Safekeeping Property: This court’s prior conclusions as to Respondent’s violations of sections (a) and (c) of this rule are in no way affected by these supplemental/amended findings of fact. It is undisputed that Respondent failed to keep these funds separate and apart from his operating and/or personal funds.

With respect to (b), Respondent repeatedly states that upon receipt of the check he did not know what these funds represented and simply believed he was entitled to keep them. He takes this position notwithstanding the undisputed fact that the sole payees on the check were the Barnharts. Under the circumstances, the court finds by clear and convincing evidence that Respondent received funds in which the Barnharts clearly had an interest. He was duty bound to promptly deliver to the Barnharts the funds they were entitled to receive.

This he failed to do until some three years later. Alternatively, if Respondent was unsure, he should have segregated these funds and kept them separate until any dispute was resolved. This he also failed to do. Although this court now finds that Respondent did in fact promptly (albeit two months later) notify the ³⁶³ Barnharts, the other circumstances lead this court, by clear and convincing evidence, to conclude that Respondent has violated (b) of this rule.

Rule 8.1 Bar Admission and Disciplinary Matters: This court has made supplemental/amended findings that Respondent did in fact have the conversation with M. Barn-hart on September 30, 2004. This court has made supplemental/amended findings that they discussed the fact of his receipt of the check and the circumstances thereupon. Additionally, this court’s supplemental/amended findings that Respondent created and mailed the letter of October 5, 2004 putting forth his position have, in the aggregate, compelled a different conclusion by this court as it relates to this rule. This court, having found contact between Respondent and Barnharts, his written explanation to them (notwithstanding their receipt vel non of the October 5, 2004 letter), and his believe that their silence and the passage of time represented the Barnharts’ acquiescence that he could keep the money, result in this court not being persuaded by clear and convincing evidence that Respondent intentionally falsified facts or information to the Petitioner and this court does not find a violation of this Rule.

Rule 8.4 Misconduct: This court has found a violation by the Respondent of Rules 1.1, 1.3, 1.4, 1.15, and 3.1. As such, these violations are Professional Misconduct in violation of (a) of this rule and the court so finds. With respect to (c) of this rule, this court has found that the Respondent did, as of September 30, 2004, advise the Barnharts of the obligation he felt they owed to him. At that time, he also admitted to the Barnharts his receipt of the $1,000 check.

By the conversation of September 30, 2004, and his subsequent letter of October 5, 2004, he did in fact state his position regarding the funds. These amended facts do not alter the fact(s) that when he received the check in July or August of 2004 he did not make immediate contact with the Barnharts. He forged their names to the back of the check made payable solely to them without their ³⁶⁴ knowledge or prior consent. He had no authority to do so at the time of this forgery.

He used their funds for his personal or business use at that time without the Barnharts’ knowledge or consent. Even if the court accepts his explanation that the passage of time somehow justified his keeping the funds, his actions at the precise moment of negotiating the check clearly represented a violation of Section 8-602 of the Criminal Law Article. This is a violation of (c) and the court so finds by clear and convincing evidence. As previously stated, his use of self-help in the summer of 2004 is not persuasive to this court as to justify or defend his actions.

His commingling of their funds with his funds represented dishonesty, fraud, and/or deceit and the court so finds by clear and convincing evidence. With respect to (d) of this rule, the totality of the Respondent’s actions represented conduct prejudicial to the administration of justice by his acting in such a manner which would seriously impair public confidence in the legal profession. His forgery and misappropriation of their funds in July/August of 2004 persuade this court by clear and convincing evidence that Respondent has violated (d). This court has now had two evidentiary hearings and has had the opportunity on various occasions to observe the Respondent.

To this court, Respondent has finally arrived at a realization of the significance and import of his actions. This court no longer observes what the court initially felt represented a cavalier attitude. This court is certainly no longer disheartened by the present actions of the Respondent. I. Standard of Review In attorney discipline proceedings, this Court has original and complete jurisdiction and conducts an independent review of the record.

Attorney Grievance v. McClain, 406 Md. 1, 17 , 956 A.2d 135, 144 (2008); Attorney Grievance v. Whitehead, 405 Md. 240, 253 , 950 A.2d 798, 806 (2008); Attorney Grievance v. Zuckerman, 403 Md. 695, 709 , 944 A.2d 525, 534 (2008); Attorney Grievance v. Nussbaum, 401 Md. 612, ³⁶⁵ 632 , 934 A.2d 1, 12 (2007); Attorney Grievance v. Lawson, 401 Md. 536, 571-72 , 933 A.2d 842, 863 (2007). We review the hearing judge’s conclusions of law de novo. Md. Rule 16-759(b)(1); 12 McClain, 406 Md. at 17 , 956 A.2d at 144 ; Whitehead, 405 Md. at 253 , 950 A.2d at 806 ; Attorney Grievance v. Kreamer, 404 Md. 282, 292 , 946 A.2d 500, 506 (2008); Attorney Grievance v. Parsons, 404 Md. 175, 184 , 946 A.2d 437, 443 (2008). In our review of the record, the hearing judge’s findings of fact generally will be accepted unless they are clearly erroneous.

Md. Rule 16-579(b)(2); 13 Whitehead, 405 Md. at 253 , 950 A.2d at 806 ; Attorney Grievance v. Harris, 403 Md. 142, 155-56 , 939 A.2d 732, 740 (2008); Nussbaum, 401 Md. at 632 , 934 A.2d at 12 ; Attorney Grievance v. Siskind, 401 Md. 41, 54 , 930 A.2d 328, 335 (2007); Attorney Grievance v. Mininsohn, 380 Md. 536, 564 , 846 A.2d 353, 370 (2004).

II

Discussion Petitioner took no exceptions to Judge Martin’s Findings of Fact and Conclusions of Law, but took a technical exception to one Finding in the Amended Findings, which we have sustained. Respondent took numerous exceptions to Judge Martin’s Findings of Fact and Conclusions of Law in both the original and Amended Findings. With the exception of the Rule 8.1 ³⁶⁶ violation to which Gisriel excepted in the original exceptions, which was rendered moot by Judge Martin’s reversal of that finding in his Amended Findings, and exception to Finding Number 7 in the original exceptions regarding the escrow for the $5,000 check, which we sustain, we overrule all other exceptions filed by the Respondent and conclude that there exists clear and convincing evidence to support Judge Martin’s Findings and Conclusions in the original Findings, and the Amended Findings of Fact and Conclusions of Law. Respondent’s Exceptions A. Rule 1.1 Rule 1.1 requires a lawyer to “provide competent representation to a client.

Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” The hearing judge concluded that Respondent was not incompetent when he failed to discuss the existence of the mediation clause in the contract with the Barnharts. Although Respondent “certainly did not specifically discuss mediation” and he might have been “careless or even negligent” with his “erroneous conclusion that the contract was a nullity,” the court did not find by clear and convincing evidence that Gisriel’s behavior exhibited a “failure of competence relating to discussions or information to the client.” Nevertheless, Judge Martin concluded that Respondent did not provide “competent representation” when he “did nothing” to respond to defendants’ motions to dismiss the Barnharts’ complaint. The judge found Respondent’s failure to respond “inexplicable” and evidence of a “failure to demonstrate the requisite knowledge and skill required of him.” Respondent concedes that he failed to file an “opposition” to the Motion to Dismiss as required by Rule 2—311(b), 14 but excepts to the ³⁶⁷ finding that he violated Rule 1.1 and contends that he was competent because he “notified his clients about the motion and communicated with opposing counsel.” We disagree. By failing to respond to pleadings, Respondent failed to provide the Barnharts with any representation, much less competent representation.

See, e.g., Attorney Grievance v. Wallace, 368 Md. 277, 293 , 793 A.2d 535, 540 (2002) (ordering disbarment, in part, for failing to communicate with clients and neglecting them). The hearing judge also concluded that Respondent violated Rule 1.1 when he failed to appear at the May 21, 2003, hearing regarding motions to dismiss and attorneys’ fees. The judge found that Respondent “was duty bound to appear at the hearing and be prepared to represent the Barnharts. He did not attend and M. Barnhart appeared alone, a layperson facing several lawyers across the table.” Respondent concedes that he “had an obligation to appear until his appearance was stricken,” but claims that his actions were acceptable because this was “not a case where the client was abandoned” and “they do things differently in Frederick County” (as opposed to Baltimore County).

He cites to the judge’s finding that, “[pjrior to any court appearance, the Barnharts decided to take over their own case and advised the Respondent that he was out, i.e. no longer representing them.” In support of his point, Respondent cites Attorney Grievance v. Maignan, 402 Md. 39, 46 , 935 A.2d 409, 413 (2007), and argues that Maignan held that an attorney could rely upon his clients’ statement that he would handle his appeal pro se. In Maignan , the clients retained the attorney to represent them in a lawsuit pending in a circuit court matter. After the action was dismissed, Maignan filed a notice of appeal. When Maignan informed his clients that the retainer agreement did not include the appeal and that he required more money, the ³⁶⁸ clients informed him they would handle the appeal pro se, but neither Maignan nor the clients filed an Information Report with the Court of Special Appeals, and the matter was dismissed.

Id. at 43 , 935 A.2d at 411 . Nearly a year later, the clients retained Maignan to prepare the appellate brief after all, and informed him that the appeal was ongoing and that the time for filing the brief had been extended. The clients paid Maignan $3,000, of which $1,000 was allocated to preparation of the brief. Maignan prepared the brief, printed it, and sent it to the client, and at some point noticed there was no case number.

Maignan called the Clerk of the Court of Special Appeals to get the case number and learned that the appeal had been dismissed. The attorney relayed that information to his client who denied the appeal had been dismissed, after which Maignan did no further work. The clients then complained to Bar Counsel that Maignan had inappropriately charged them for work on an appeal that had already been dismissed and that Maignan refused to refund the money paid by them. We sustained the hearing judge’s failure to find any violation, because Maignan had never actually represented the clients during the appeal, based upon the judge’s explicit finding that, An attorney has a duty to keep himself informed as to the status of a case, but in the instant case Respondent did not represent the Thomases on the appeal of the Mercedes Benz matter since they initially elected to pursue the appeal in proper person.

The Respondent reasonably relied upon the representations of the Thomases that they were actively pursuing the appeal because he thought he was preparing an appellate brief due initially on September 1, 2003 and extended until December 2003. The Respondent believed he could rely upon the representations made by the Thomases since they were active litigators with a history of pro se filings. Id. at 45-46 , 935 A.2d at 413 . The hearing judge found that for the present case, Gisriel had not been relieved by the court of his obligation, after filing his case, to represent the Barn- ³⁶⁹ harts nor could Gisriel rely on the Barnharts’ lack of legal experience to relieve him of his obligation.

This case is more in accord with Attorney Grievance v. Mooney, 359 Md. 56 , 753 A.2d 17 (2000). In Mooney, the lawyer faced four complaints alleging numerous violations of the Rules of Professional Conduct. In one of the four complaints, a defendant facing criminal charges retained Mooney and met with him to discuss the facts of her case. Mooney entered his appearance, but on the day of trial, failed to show up in court.

We held that it was a violation of Rule 1.1 for a lawyer to fail to appear when scheduled, absent sufficient