Attorney Grievance Commission v. Lee

HARRELL, J. This is the second round with this Court for this particular case. Previously, in Attorney Grievance Commission v. Lee (Lee I), 387 Md. 89 , 874 A.2d 897 (2005), we remanded this matter to the hearing judge potentially to receive new evidence and to revisit, in light of any new evidence, her credibility determinations and findings of fact and conclusions of law as to certain witnesses and Respondent, Norman Joseph Lee, III. Lee I, 387 Md. at 119-120 , 874 A.2d at 915 . The impetus for the remand was a factual dispute as to whether Respondent’s client, Mr. John Henry Smith, or his wife (the “Complainant”), received certain written communications claimed to have been sent to them from Respondent’s law office.

We shall not repeat at this point much of what was stated in our earlier opinion. The fuller background of the underlying ³⁸⁹ complaint against Respondent may be found there. A summary of the earlier evidentiary hearings and the hearing judge’s findings of fact and conclusions of law will be reiterated later in this opinion. In furtherance of the remand, a hearing was held by the hearing judge, the Honorable Vicki Ballou-Watts, on 1 September 2005.

Respondent produced as a witness Ms. Kathryn Jacobs, Supervisor of the Mail Room at the Western Correctional Institution (“WCI”), where Respondent’s former client, John Henry Smith, is incarcerated. Ms. Jacobs has been employed in the Mail Room at the facility since it opened in 1996. Her work responsibilities included “everything that goes on in the Mail Room ... [including] the processing of legal mail.” 1 Logbooks are maintained with the date of receipt of each piece of legal mail, the recipient inmate’s cell location (coded by his unique Division of Corrections’ identifying number), the sending person’s or entity’s name, and a written signature of receipt by the inmate. Testifying from the relevant pages in the log books (copies of which were received in evidence), Ms. Jacobs established that pieces of “legal mail” emanating from Respondent’s law office were received at WCI and acknowledged as received by Smith on: 7 May 2001; 29 November 2001; 1 May 2002; 17 May 2002; 20 May 2002; 10 July 2002; and 19 July 2002. 2 No one in the administration or the guards at WCI knew the content of the “legal mail.” 3 ³⁹⁰ Respondent then sought to elicit testimony before the hearing judge from the Assistant Bar Counsel prosecuting the disciplinary matter.

It appeared that Mr. Lee wished to interrogate Assistant Bar Counsel with regard to representations Bar Counsel made at the October 2004 hearings relating to his efforts to ascertain from conversation with personnel at WCI the bonafides of whether Respondent had sent “legal mail” to Mr. Smith. The hearing judge granted Assistant Bar Counsel’s motion to quash the witness subpoena. On 17 October 2005, Judge Ballou-Watts filed additional written Findings of Fact and Conclusions of Law. In relevant part, she stated: In its Petition, the Attorney Grievance Commission sought disciplinary action against Respondent for alleged misconduct, in violation of the Maryland Rules of Professional Conduct, as follows: A. Violation of Rule 1.1, by failing to provide competent representation by accepting representation in a legal matter involving the investigation and pursuit of post conviction relief or other court proceedings at a time when the Respondent relied significantly upon his paralegal’s expertise in post conviction matters; B. Violation of Rule 1.3, by failing to act with reasonable diligence and promptness over nearly a two year period in the pursuit of the release from incarceration of John Henry Smith either through court proceedings or by means of parole; C. Violation of Rule 1.4(a)(b), by failing to respond to his client’s repeated requests for information in a timely fashion; failing to advise his client of the status of the legal matter for which he was retained; and failing to afford the client information necessary to make decisions about the legal matter and the representation; D. Violation of Rule 1.5(a), by charging and retaining an unearned and therefore unreasonable fee in the amount of $3,500.00; ³⁹¹ E. Violation of Rule 1.16(d), by failing to refund a significant portion, if not all, of the $3,500 fee received upon termination of representation in February 2003; F. Violation of Rule 5.3(a)(b)(c) and Rule 5.5(a)(b), by employing a disbarred attorney, Lester V. Jones, and entrusting him to perform services without appropriate supervision which otherwise constituted the unauthorized practice of law; G. Violation of Rule 8.1(a) and Rule 8.4(b)(c)(d), by falsely stating or misrepresenting to the Attorney Grievance Commission that the reason for delay in pursuing the matter for which he was retained was the unavailability of transcripts.

Petitioner abandoned the Rule 1.1, Rule 5.3, and Rule 5.5 violations. Findings of Fact and Conclusions of Law were filed on November 29, 2004. This court found by clear and convincing evidence that the Respondent committed violations of the Maryland Rules of Professional Conduct 1.3, 1.4(a), 8.1(a) and 8.4(c). This matter was been remanded by the Court of Appeals as a result of Respondent’s request for consideration of newly discovered evidence.

During the original evidentiary hearing, Western Correctional Institute (WCI) inmate John Henry Smith testified that he did not receive a copy of Respondent’s April 29, 2002 letter to the Maryland Parole Commission. In the letter, Respondent requested a parole hearing. During the evidentiary hearing, Bar Counsel suggested that the inmate had never received any written communication from the Respondent. After this court completed its Findings of Fact and Conclusions of Law, Respondent filed a post-hearing motion in connection with newly discovered mail records from WCI which, if admitted, would tend to show that the inmate did receive a copy of Respondent’s April 29th letter, along with certain additional correspondence from Respondent’s law office. ³⁹² In its Opinion and Order dated May 12, 2005, the Court of Appeals remanded the case to this court to consider the newly discovered evidence, if admitted. [].

Respondent argued that this evidence might be a basis for questioning John Smith’s testimony at the evidentiary hearing and any weight afforded to this testimony by the [hearing] judge. []. Therefore, the issue on remand is whether “this evidence, and its implication on the overall credibility assessments of Lee and Bar Counsel’s witnesses, are potentially material to each of the court’s underlying Findings of Fact and resultant Conclusions.” [ ].

III

FINDINGS OF FACT At the evidentiary hearing conducted on September 1, 2005, this court received testimony from Kathryn Jacobs. Ms. Jacobs is the mailroom supervisor at WCI. As the mailroom supervisor, she is responsible for processing all incoming and outgoing mail for inmates—including correspondence, which is characterized as “legal” mail. Legal mail includes correspondence from the courts, attorneys, and the Maryland Parole Commission.

According to Ms. Jacobs, who testified regarding mailroom procedures during the relevant time period (2002), whenever legal mail was delivered to WCI, it was separated from other correspondence. Legal mail was recorded in a logbook for the specific housing unit where the inmate resided. The legal mail was then bound to the logbook and placed in a mailbag. That bag was transported to the designated housing unit.

Once delivered to the unit, the mail was given to the inmate by a correctional officer. The inmate was required to sign the logbook for each correspondence received. Mail was not opened until the inmate received it from the correctional officer. In addition, neither the correctional officer nor the mailroom staff read the inmate’s mail.

Respondent’s Exhibit 1 consists of photocopies of various legal mail logbook entries for mail received by inmate John Henry Smith in housing unit 3. Also included in the exhibit was a copy of the cover of the aforementioned logbook. ³⁹³ These logbook entries show that inmate Smith signed for correspondence from Respondent’s law office on May 1, 2002, May 7, 2002, May 17, 2002, May 20, 2002, July 10, 2002, and July 19, 2002. During the original evidentiary hearing, Mr. Smith denied receiving correspondence from Respondent, which was dated April 29, 2002. []. Although the specific contents of mail received by Smith on May 1, 2002 (or any other date) is unknown, a reasonable inference can be drawn that John Henry Smith received one or both letters addressed to Mr. Smith and the Maryland Parole Commission, respectively.

Both were dated April 29, 2002. As for the additional correspondence signed for by Mr. Smith in May and July 2002, a reasonable inference can be drawn that he was sent letters or copies of letters from the Respondent’s law office as reflected in Respondent’s Exhibits 8, 9, 11, and 12 from the original evidentiary hearing. The Complainant Mary Ellen Smith testified that she did not receive copies of certain correspondence from Respondent’s law office. However, the testimony of Ms. Kathryn Jacobs sheds no new light on Ms. Smith’s credibility.

In fact, while this court accepts as true the testimony and exhibits offered during the September 1, 2005 evidentiary hearing, the original credibility assessments, findings and conclusions remain unchanged. The assessments, findings and conclusions remain unchanged because they were primarily based upon the many inconsistencies between Respondent’s testimony and the content of his exhibits, including but not limited to Respondent’s client ledger, list of itemized calls, correspondence and internal office memorandum. CONCLUSION This court has made additional findings of fact based upon the testimony and exhibits offered during the September 1, 2005 evidentiary hearing. However, this new evidence has no material effect upon the court’s original Findings of Fact ³⁹⁴ and Conclusions of Law.

As a result, the findings and conclusions that Respondent violated Maryland Rules of Professional Conduct 1.3, 1.4(a), 8.1 and 8.4(c) are hereby restated and reaffirmed. Neither Bar Counsel nor Respondent filed further written exceptions 4 with this Court to Judge Ballou-Watts’ supplemental Findings of Fact and Conclusions of Law filed on 17 October 2005, although Respondent had filed extensive written exceptions 5 to her earlier Findings of Fact and Conclusions of Law filed on 29 November 2004. Bar Counsel filed with the Court on 4 January 2006 a written Recommendation for Sanction suggesting that indefinite suspension of Respondent ³⁹⁵ was appropriate in this case. See Md. Rule 16-758(b)(2).

Respondent offered no written recommendation for disposition. Both sides appeared for oral argument before the Court on 3 February 2006, at which time Respondent argued for dismissal of the charges. I. As a threshold matter, we must determine the impact, if any, of Respondent’s decision not to file additional exceptions to Judge Ballou-Watts’ 17 October 2005 supplemental findings of fact on our analytical obligations under Md. Rule 16—759(b)(2). Based on the particular circumstances of this case, we conclude that Md. Rule 16—759(b)(2)(B) (when exceptions are filed) should guide our consideration of any factual disputes.

In her 17 October 2005 supplemental findings of fact and conclusions of law, Judge Ballou-Watts recanted only one set of factual findings from her 29 November 2004 findings and conclusions, that is, that John Henry Smith had not received from Respondent’s law firm certain mail communications during May and July 2002 regarding Respondent’s representation of Mr. Smith. In all other respects, the hearing judge reaffirmed the remaining “assessments, findings, and conclusions” of her earlier decision. Her apparent reasoning in reaching that result was that the remaining “assessments, findings, and conclusions” “were primarily based upon the many inconsistencies between Respondent’s testimony and the content of his exhibits, including but not limited to Respondent’s client ledger, list of itemized calls, correspondence and internal office memorandum.” (Emphasis in original). Also, the hearing judge noted that the new evidence adduced by Respondent at the hearing held on remand did not refute in any direct way the Complainant’s earlier testimony regarding not receiving letters or copies of other letters assertedly sent to her by Respondent’s office regarding her husband’s case.

As noted earlier, Respondent filed extensive written exceptions to the hearing judge’s 29 November 2004 findings of fact ³⁹⁶ and conclusions of law. Because the hearing judge’s 17 October 2005 supplemental findings of fact and conclusions of law, on virtually all material points, re-adopted her earlier decision, Respondent’s earlier exceptions remain as relevant and responsive as their intrinsic merit will reveal by our analysis to follow. It would elevate insupportably form over substance, under these circumstances, to require a mere repetition of those earlier exceptions in response to the 17 October 2005 supplemental findings and conclusions, especially in view of the fact that Respondent prevailed on the limited factual scope of the remand. Accordingly, we shall consider those earlier exceptions by Respondent which remain relevant, according to the standard of Md. Rule 16-759(b)(2)(B), as applied to the hearing judge’s combined findings and conclusions.

II

The hearing judge concluded that Respondent committed violations 6 of Maryland Rules of Professional Conduct (“MRPC”) 1.3 7 (diligence), MRPC 1.4(a) 8 (communication), MRPC 8.1(a) 9 (Bar admission and disciplinary matters), and MRPC 8.4(c) 10 (misconduct) as alleged in the Petition for ³⁹⁷ Disciplinary Action. In Lee I, we outlined the findings of fact and conclusions of law by the hearing judge: The Petition for Disciplinary Action alleged violations of MRPC 1.3[] (diligence), MRPC 1.4[] (communication), MRPC 1.5(a)[] (fees), MRPC 1.16(d)[] (declining or terminating representation), MRPC 8.1(a)[] (bar admission and disciplinary matters), and MRPC 8.4(b), (c), (d)[] (misconduct). In his answer to the petition, Lee denied any misconduct. A two day evidentiary hearing was held before Judge Vicki Ballou-Watts of the Circuit Court for Baltimore County on 8 and 13 October 2004.

After hearing testimony from Lee, Mary Smith, John Smith, an official from WCI, and Lee’s secretary, the hearing judge issued her Findings of Fact and Conclusions of Law on 29 November 2004. She found, by clear and convincing evidence, that Lee violated MRPC 1.3, 1.4(a), 8.1(a), and 8.4(c). Lee violated MRPC 1.3, she concluded, by failing to review personally Smith’s case materials for nearly two years; failing to forward to his clients the results of any research or draft documents, as promised in various correspondence; failing to manage properly his workload; and, failing to meet with or speak to John and Mary Smith for nearly a two year period. The hearing judge concluded that Lee violated MRPC 1.4(a) by failing to respond to the Smiths’ requests for information, both written and made by telephone; failing to forward the results of any research or draft documents, as promised in various correspondence; and, failing to respond to Mary Smith’s repeated requests for the return of transcripts and papers for a period of three weeks.

The judge also concluded that Lee “violated [MRPC] 8.1(a) and 8.4(c) when he misrepresented to the Attorney Grievance Commission that the cause for delay in pursuing the legal matter for which ³⁹⁸ he was retained was due to the unavailability of transcripts.” Judge Ballou-Watts, however, found no clear and convincing evidence to support a conclusion that Lee violated MRPC 1.5(a) and 1.16(d). Rather, she was persuaded by Lee’s client ledger to conclude that there was not sufficient evidence from which to find that no appreciable work had been performed. She stated that, although it was possible that Mary Smith may have been entitled to a refund of a portion of her retainer, there was insufficient evidence to accurately determine what portion of the fee was unearned. Lee filed several exceptions to the hearing judge’s written Findings of Fact and Conclusions of Law, disputing several, if not most, of the factual findings.

Lee also filed a Motion for Reconsideration Based on Fraud, Deceit and Misrepresentation, supported by alleged new evidence that was not introduced or considered at the evidentiary hearing, which he boldly alleged demonstrated that Bar Counsel deliberately had presented false testimony. Lee also argued that the hearing judge precluded him from impeaching Bar Counsel’s witness, Mary Smith, by improperly preventing him from introducing evidence of statements reportedly made by her at the Peer Review Panel meeting that supposedly were inconsistent with some of her statements made at the evidentiary hearing. Although Bar Counsel filed a response to Lee’s exceptions requesting that his exceptions be overruled, no exceptions were taken by bar counsel to the hearing judge’s findings of fact or conclusions of law. Bar Counsel seeks an indefinite suspension as the appropriate sanction for Lee’s violations.

(Footnotes omitted). Lee I, 387 Md. at 99-102 , 874 A.2d at 903-04 . As stated, supra, the hearing judge reviewed the new evidence taken with regard to Mr. Smith’s receipt of written correspondence from Respondent and concluded that “the new evidence ha[d] no material effect upon the court’s original Findings of Fact and Conclusions of Law” because she based her conclusions in large part upon earlier testimony and exhibits offered by Respondent which were not impeached by the remand proceeding. In reviewing the hearing judge’s ³⁹⁹ findings of fact and conclusions of law, we shall take into account the new evidence, which established that certain pieces of “legal mail” emanating from Respondent’s law office were received at the correctional facility and acknowledged as received by Mr. Smith on: 7 May 2001; 29 November 2001; 1 May 2002; 17 May 2002; 20 May 2002; 10 July 2002; and 19 July 2002.

III

We accept a hearing judge’s findings of fact unless we determine that they are clearly erroneous. Attorney Grievance Comm’n v. Stolarz, 379 Md. 387, 397 , 842 A.2d 42, 47 (2004); Attorney Grievance Comm’n v. Culver, 371 Md. 265, 274 , 808 A.2d 1251, 1256 (2002). This deference accorded to the hearing judge’s findings is appropriate, in part, because the fact finder is in the best position to assess the demeanor-based credibility of a witness. Stolarz, 379 Md. at 398 , 842 A.2d at 48 ; Attorney Grievance Comm’n v. Sheridan, 357 Md. 1, 17 , 741 A.2d 1143, 1152 (1999); see also Md. Rule 16-759(b)(2)(B) (“The Court shall give due regard to the opportunity of the hearing judge to assess the credibility of witnesses.”).

The hearing judge is permitted to “pick and choose which evidence to rely upon” from a conflicting array when determining findings of fact. Attorney Grievance Comm’n v. Fezell, 361 Md. 234, 253 , 760 A.2d 1108, 1118 (2000) (Citation omitted). In deciding whether the hearing judge’s findings of fact are clearly erroneous where exceptions are filed, this Court looks first to Md. Rule 16-759(b)(2)(B), which states that “the Court of Appeals shall determine whether the findings of fact have been proven by the requisite standard of proof set out in Rule 16-757(b).” Under Md. Rule 16-757(b), where exceptions to findings of fact are filed by Bar Counsel, we consider that Bar Counsel, before the hearing judge, “ha[d] the burden of proving the averments of the petition by clear and convincing evidence.” See also Attorney Grievance Comm’n v. DiCicco, 369 Md. 662, 681 , 802 A.2d 1014 , 1025 ⁴⁰⁰ (2002) (“Clear and convincing evidence must be more than a mere preponderance but not beyond a reasonable doubt.”) (Internal quotations omitted) (Citations omitted). Thus, where the exceptions are filed to findings that were favorable to the Respondent attorney, under Md. Rule 16-757(b), we consider also that the attorney “who asserts an affirmative defense or a matter of mitigation or extenuation has the burden of proving the defense or matter by a preponderance of the evidence.” 11 See also Attorney Grievance Comm’n v. Garfield, 369 Md. 85 , 797 A.2d 757, 765 (2002) (stating that “an attorney in a disciplinary proceeding need only establish factual matters in defense of an attorney’s position by the preponderance of the evidence, including whether mitigating circumstances existed at the time of the alleged misconduct”).

IV

Based on our review of the record, we sustain one of Respondent’s exceptions regarding a finding that Respondent failed to communicate with Mr. Smith for nearly two years. Despite sustaining that exception, we overrule Respondent’s other exceptions and sustain the hearing judge’s conclusions of law that Respondent violated MRPC 1.3, 1.4(a), 8.1(a), and 8.4(c). 12 ⁴⁰¹ A. As to the hearing judge’s findings of fact relevant to the Rule 1.3 violation, Respondent excepted to the hearing judge’s factual determinations that Respondent failed to (1) review personally, for nearly two years, the transcripts, pleadings and other documents delivered to his office by the Complainant; 13 (2) forward to the Complainant and Mr. Smith documentary results of any research, draft petition, Petition for Writ of Error, and a Motion to Correct Illegal Sentence, as promised in correspondence dated 4 May 2001, 28 November 2001, 15 May 2002, and 17 July 2002; (3) manage his case workload in a manner which would allow for the timely research, review, evaluation, and pursuit of the matters for which he was retained; and (4) “meet with or talk with Mr. ⁴⁰² Smith over nearly a two-year period.” .The hearing judge explicated specifically the basis for her factual findings in this regard by highlighting the testimonial evidence and exhibits offered by Respondent, Mr. Smith’s testimony, and Petitioner’s exhibits. We find clear and convincing evidence on this record to support the hearing judge’s findings in support of her conclusion that Respondent violated MRPC 1.3, except the blanket finding of fact that Respondent “[flailed to meet or talk with Mr. Smith over nearly a two-year period.” We perceive that the hearing judge intended by the latter finding to mean that Respondent failed to communicate with his client for nearly a two-year period. This perception is based on the fact that MRPC 1.3 does not dictate the modality of communication that an attorney might employ when representing his client in a reasonably diligent and prompt manner.

We conclude that this particular finding by the hearing judge was not supported by clear and convincing evidence, and was therefore clearly erroneous, in light of (1) the new evidence admitted at the September 2005 hearing that established that Mr. Smith received “legal mail” correspondence from Respondent on 7 May 2001, 29 November 2001, 1 May 2002, 17 May 2002, 20 May 2002, 10 July 2002, and 19 July 2002, and (2) Respondent’s client ledger, which the hearing judge obviously and necessarily credited, indicating by notation that Respondent or his paralegal accepted collect telephone calls from Mr. Smith on the following dates: 6 April 2001 for 0.2 hours; 17 April 2001 for 0.2 hours; 4 May 2001 for 0.5 hours; 9 July 2001 for 0.2 hours; 1 November 2001 for 0.2 hours; 10 January 2002 for 0.2 hours. See Attorney Grievance Comm’n v. Maignan, 390 Md. 287, 295 , 888 A.2d 344, 348-49 (2005). 14 ⁴⁰³ MRPC 1.3 provides that “[a] lawyer shall act with reasonable diligence and promptness in representing a client.” We conclude that Respondent violated Rule 1.3 because he neglected his client’s matter as evidenced by his failure to review case documents until nearly two years after he was retained, failure to manage his case workload in a manner which would allow for the timely research, review, evaluation, and pursuit of the matters for which he was retained, and failure to prepare any written pleadings or papers in the pursuit of the matter as promised to the client in correspondence. 15 See Attorney Grievance Comm’n v. Lee (Lee II), 390 Md. 517, 526 , 890 A.2d 273, 278 (2006) (concluding in another case that ⁴⁰⁴ Respondent displayed lack of diligence in violation of MRPC 1.3 by neglecting his client’s legal matter for almost one year, during which Respondent filed no pleading, nor indicated to his client that there was no basis to do so). B. The hearing judge concluded that Respondent violated MRPC 1.4(a) in several respects. She found that Respondent failed to respond to many telephone calls placed by Mr. Smith requesting information regarding the status of matters for which Respondent was retained.

The hearing judge based this finding of fact upon the testimony of Mr. Smith and Respondent and the client ledger introduced by Respondent. 16 According to the client ledger, the hearing judge found that ⁴⁰⁵ Mr. Smith placed a total of 188 collect calls to Respondent’s law office between 16 March 2001 and 17 June 2003. Thirty-five calls were accepted by Respondent’s office and, of those accepted, only eleven calls were of a duration of seven minutes or more. On 4 May 2001, 1 August 2001, and 10 October 2001, Respondent’s law office accepted Mr. Smith’s collect calls, and, according to Respondent’s client ledger, the hearing judge found that Mr. Smith spoke with Respondent’s paralegal, Lester Jones, not Respondent, on those dates. The hearing judge highlighted that, according to the client log, Respondent only spoke with Mr. Smith on three occasions—9 July 2001, 11 November 2001, and 10 January 2002—for a collective total of seven minutes.

Respondent excepted to the finding that he did not respond to Mr. Smith’s telephone inquiries about the case, stating that Mr. Smith participated in on-going discussions with Mr. Jones, and that Respondent spoke with Mr. Smith on several occasions using the speaker-phone function on his paralegal’s telephone, noting his own testimony to that effect (although he did not identify the particular occasions in addition to the three occasions noted in the client ledger). Respondent also indicated that he visited Mr. Smith on 11 January 2003, nearly two years after the representation began. As stated, swpra, we sustained Respondent’s exception to the hearing judge’s “blanket” finding that Respondent failed to communicate with Mr. Smith for nearly a two-year period in part because we observed that the client ledger admitted at the original evidentiary hearing (and relied upon by the hearing judge in her findings) indicated by notation that Respondent accepted collect telephone calls from Mr. Smith on the following dates: 6 April 2001 for 0.2 hours; 17 April 2001 for 0.2 hours; 4 May 2001 for 0.5 hours; 9 July 2001 for 0.2 hours; 1 November 2001 for 0.2 hours; 10 January 2002 for 0.2 hours. Thus, we find that the hearing judge’s somewhat contradictory finding that Respondent did not speak with Mr. Smith on 4 May 2001 is not supported by clear and convincing evidence.

Even so, the evidence that Respondent or his paralegal accepted six collect telephone calls from Mr. Smith over the ⁴⁰⁶ course of the representation is not sufficient, however, to overrule the hearing judge’s finding of fact that Respondent failed to respond to the repeated telephone calls by Mr. Smith requesting information regarding the status of matters for which Respondent was retained. The ledger does not indicate the topic of discussion during any accepted phone calls. We therefore sustain this finding. The hearing judge also made a finding of fact that, for a three-week period, Respondent failed to respond to the Complainant’s repeated requests for the return of transcripts and papers on behalf of Mr. Smith.

Respondent excepted, stating that this finding of fact was based on the Complainant’s original grievance to the Commission and was not addressed specifically at the earlier evidentiary hearing. Respondent contends that, had he been questioned about the issue during the hearing, he would have testified that the transcripts and papers were available to the Complainant to pick up from his office, which she eventually did, after cancelling several appointments, due to conflicts in her schedule. Contrary to Respondent’s non-testimonial assertions, we note that the Complainant’s grievance was received by the hearing judge as Petitioner’s Exhibit 1. We overrule this exception.

As stated previously, we sustain the finding of fact that Respondent failed to forward to Mr. Smith or the Complainant the documentary results of any research, draft petition, Petition for Writ of Error, and a Motion to Correct Illegal Sentence, as promised in correspondence dated 4 May 2001, 28 November 2001,15 May 2002, and 17 July 2002. In further support of the conclusion that Respondent violated MRPC 1.4(a), the hearing judge determined that Respondent failed to respond to the Complainant’s written requests for information about the case in letters dated 14 July 2002 and 22 October 2002, and failed to forward to the Complainant the results of any research or production of any pleading drafts. 17 Respondent excepted to the finding that he did not ⁴⁰⁷ respond to the Complainant’s written requests for information about the case, asserting that he could not find any letter dated 14 July 2002 (implying that it did not exist) and that Respondent replied to the 22 October 2002 letter by meeting with the Complainant on 9 January 2008, nearly three months later. We observe that Respondent introduced evidence indicating that Lester Jones sent a letter to the Complainant on 17 July 2002 in which he acknowledged the Complainant’s