Attorney Grievance Commission v. Moore

Greene, J. Richard A. Moore, II (“Respondent”), was admitted to the Bar of this Court on June 28, 1990. Beginning in 1990, Respondent served as an Assistant State’s Attorney in Prince George’s County for approximately nineteen years. Respon ⁶² dent left the State’s Attorney Office in 2009 and entered into private practice as a solo-practitioner. Respondent’s practice consisted of criminal defense, personal injury matters, and family law matters.

On March 18, 2013, Respondent was placed on exempt status 1 based on his appointment as an Administrative Law Judge. On May 7, 2015, the Attorney Grievance Commission of Maryland (“Petitioner” or “Bar Counsel”), acting pursuant to Maryland Rule 16-751(a) 2 , filed a “Petition For Disciplinary Or Remedial Action” against Respondent. The Petition addresses allegations of misconduct from Respondent’s representation of Cynthia Covington. Petitioner asserts that based upon clear and convincing evidence, Respondent violated Maryland Lawyers’ Rules of Professional Conduct (“MLRPC” or “Rule”) 1.1 (Competence), 1.2 (Scope of Representation), 1.3 (Diligence), 1.4 (Communication), 1.16 (Declining or Terminating Representation), 8.1 (Bar Admission and Disciplinary Matters), and 8.4 (Misconduct).

This Court referred the matter to the Honorable John P. Davey of the Circuit Court for Prince George’s County for a hearing to issue findings of fact and conclusions of law pursuant to Md. Rule 16-757. The hearing judge conducted an evidentiary hearing on April 15, 2016. Thereafter, the hearing judge issued Findings of Fact and Conclusions of Law, maintaining that the evidence was clear and convincing, that Respondent violated MLRPC 1.1, 1.2(a), 1.3, 1.4(a) and (b), 1.16 (a) and (d), 8.1(a) and (b), and 8.4(a), (c), and (d). Respondent filed exceptions to the ⁶³ hearing judge’s findings of fact and conclusion of law.

We conclude that the hearing judge’s conclusions as to violations of Rules 1.1, 1.2(a), 1.3, 1.4(a) and (b), 1.16(a), and 8.4(a) and (d) were supported by clear and convincing evidence and overrule Respondent’s exceptions. We hold, however, that the record lacks clear and convincing evidence to sustain Respondent’s violations of Rules 8.1(a) and (b) and 8.4(c). FINDINGS OF FACT The hearing judge conducted an evidentiary hearing on April 15, 2016, after which he made the following factual findings: On or about May 9, 2012, Ms. Covington was involved in a four car automobile accident. The fourth driver was insured by GEICO and accepted liability.

In August 2012, Ms. Covington retained the Respondent to represent her pursuant to a Contingency Fee Retainer Agreement that was signed by Ms. Covington on August 25, 2012. Ms. Covington was referred to the Respondent by a close Mend who recommended that she contact Respondent for representation. It is undisputed that Ms. Covington received medical treatment at least through the month of August 2012. Based on advice from her doctor, Ms. Covington understood that she should not consider a settlement no [sic] sooner than 4 months after she completed her medical treatment.

On September 2, 2012, Ms. Covington advised the Respondent that a GEICO representative would like to speak with him about the claim, and Ms. Covington provided the name and contact information to the Respondent and authorized Respondent to settle her claim. On or about September 6, 2012, the Respondent stated, “After I speak with the GEICO representative, I will give you a call to discuss what she says.” The Respondent did not speak with the GEICO representative or follow-up with Ms. Covington. On October 2, 2012, Ms. Covington emailed the Respondent and stated that she had received a call from the GEICO repre ⁶⁴ sentative who advised her that she had been unable to contact the Respondent. Ms. Covington provided the Respondent with the contact information for the representative again and requested he contact GEICO “as soon as possible.” On October 3, 2012, the Respondent replied that he would “look into it and take care of it.” Also on October 3, 2012, GEICO wrote to the Respondent and asked him to send a letter of representation.

The Respondent received the letter from GEICO[,] however, he did not make any effort to contact them or send a letter of representation. On October 31, 2012, having heard nothing from the Respondent, Ms. Covington emailed the Respondent and stated, “Checking in to see where we stand with the GEICO settlement. Thank you so much.” The Respondent did not respond to Ms. Covington’s email in any manner. On December 1, 2012, having heard nothing from the Respondent, Ms. Covington emailed him and stated, “Please let me know a convenient time to speak with you regarding my auto accident.” The Respondent did not respond to Ms. Coving-ton’s email in any manner.

On December 17, 2012, having heard nothing from the Respondent, Ms. Covington sent him another email stating, “I’ve sent you emails and left a message for you and I have not heard anything from you. Please advise me as to the status of my case.” The Respondent did not respond to Ms. Covington’s email in any manner. On January 13, 2013, having not received any response from the Respondent, Ms. Covington emailed him again and stated, “Please proceed in settling my claim with GEICO.” On January 14, 2013, Ms. Covington spoke with the Respondent during a brief phone call that lasted approximately 3 minutes. During the phone call, Ms. Covington restated that she wanted to settle her claim and authorized the Respondent to make a demand.

On February 19, 2013, the Respondent for the first time, sent a letter of representation to GEICO, stating, inter alia, “As of this date, my client has completed all treatment. Upon my receipt of my client’s medical records, bills and ⁶⁵ reports, I will forward copies to you for your review along with an offer for settlement.” The Respondent, despite being in possession of an Authorization to Release Medical Information signed by Ms. Covington, did not request any of Ms. Covington’s medical records from the providers and did nothing to further settlement of Ms. Covington’s claim. After multiple interviews, in February 2013, the Respondent was notified that he would be appointed as an Administrative Law Judge. He was given four weeks to close his practice.

Based upon discussions with W. Thomas Stovall, 11, Esq., Respondent decided to inform all of his clients that he could provide a referral to another attorney for representation for any work remaining in their cases or they could retain new counsel of their own choosing. Respondent began his employment as an Administrative Law Judge on March 12, 2013, and on March 18, 2013, he was placed on exempt status by the Attorney/Client Trust Fund of the Bar of Maryland. On April 10, 2013, Ms. Covington, having heard nothing from the Respondent, emailed him and stated, “Just checking in. How’s the settlement process going?” The Respondent did not respond.

On April 17, 2013, Ms. Covington sent an email to [the Respondent] advising that USAA, her carrier had agreed to accept a property damage settlement from GEICO. She further stated, “Where do we stand? How soon can we settle?” The Respondent did not respond. On April 30, 2013, having heard nothing from the Respondent, Ms. Covington emailed him and stated, “Just checking on the progress of the settlement.

When do you expect to be able to close out?” The Respondent did not respond in any manner. On May 21, 2013, Ms. Covington emailed the Respondent and stated, “Please let me know where we stand on my settlement with GEICO. I have supplied you with all of the pertinent information requested. I would greatly appreciate a response to my email.” The Respondent did not respond in any manner. ⁶⁶ On or about May 31, 2013, Ms. Covington called the Respondent’s virtual office 3 and left a voicemail message asking that Respondent return her phone call. [Respondent] had terminated all services with his virtual office and receptionist when he started as an Administrative Law Judge.

Respondent asserts his virtual office and receptionist terminated at least 1½ months prior to Ms. Covington’s telephone call; therefore, it is unclear as to when the message referred to was actually left. On May 31, 2013, the Respondent returned Ms. Covington’s phone call and the two spoke for the first time since January 2013. The conversation lasted approximately 3 minutes. The Respondent advised Ms. Cov-ington, for the first time, that he had accepted a position as an Administrative Law Judge.

He told Ms. Covington that he would be closing his practice and that he was referring her case to another attorney, but he could not provide a name as the other attorney had not yet agreed to take her case. The Respondent assured Ms. Covington that the new attorney would be in touch with her within one week. Ms. Covington never received any communication from the unnamed attorney that was to take over her case. Ms. Covington called the Respondent’s cellular phone and left voice messages on July 1, 2013, July 15, 2013, July 29, 2013, August 7, 2013, August 9, 2013, August 12, 2013, August 14, 2013, and September 27, 2013.

The Respondent did not return Ms. Covington’s calls or respond to her voicemail messages in any manner. On September 27, 2013, Ms. Covington emailed the Respondent and stated: Mr. Moore, When we last spoke at the end of May 2013, you advised me that you were closing your practice and that my case would be transferred to another personal ⁶⁷ injury attorney within 1 week. As of today, I have not received any correspondence from you or any other attorney. I have left you several voice mail messages that you have not responded to.

At this point, I want to terminate our agreement as you have failed to represent me in this matter. Please contact me immediately to discuss and execute a termination of our agreement. Sincerely, Cynthia Covington The Respondent failed to respond to Ms. Covington’s September 27, 2013 email in any manner. On September 30, 2013, Ms. Covington called the Respondent’s cellular phone and left a final voicemail message.

The Respondent did not respond to Ms. Covington’s voicemail message in any manner, The Respondent did not write to GEICO and advise them [sic] that he was no longer representing Ms. Coving-ton, he did not provide Ms. Covington with a copy of her file and did not execute a termination of representation as requested. In 2015, the Respondent eventually provided a lien release to Ms. Covington. On February 25, 2014, Ms. Covington filed a complaint with Bar Counsel. On March 19, 2104, Bar Counsel forwarded the complaint to the Respondent and requested a response within fifteen days.

On April 15, 2014, with no response having been received, Bar Counsel wrote to the Respondent and requested a response. On April 21, 2014, the Respondent called Bar Counsel and received an extension through May 12, 2014. On May 12, 2014, the Respondent provided a written response to Bar Counsel stating in part, “Right around that time, Ms. Covington and I had a conversation about her case. When I reported to her that I had a new attorney lined up, Ms. Covington left me with the impression that she wanted to secure the services of her own attorney to take over the case.” By letter dated June 2, 2014, Bar Counsel requested the Respondent provide, inter alia, a complete copy of Ms. Covington’s file, the date he closed his practice, the name of ⁶⁸ the attorney that was to take over Ms. Covington’s matter and a complete description of all actions taken following September 27, 2013 to comply with Rule 1.16(d) of the Maryland Lawyer’s Rules of Professional Conduct.

The information and documentation was to be provided no later than June 20, 2014. The Respondent retained Counsel, and on July 1, 2014 provided his written response, which failed to address the attorney that was to take over Ms. Coving-ton’s matter. On July 10, 2014, the Respondent delivered a copy of Ms. Covington’s file to Bar Counsel. On July 25, 2014, Bar Counsel again requested the name of the attorney that the Respondent had “lined up” to take over Ms. Covington’s matter.

The information was to be provided by August 8, 2014. The Respondent did not respond, and on August 12, 2014, Bar Counsel again requested the name of the attorney. By email later that day, the Respondent, through counsel, provided the name of Allan W. Steinhorn, Esq., as the attorney with whom he spoke about taking over his practice. The undisputed evidence presented at trial is that Ms. Covington called the Respondent nine times between July 1, 2013 and September 30, 2013.

Furthermore, the undisputed evidence is that on each of the nine occasions, Ms. Coving-ton left a voicemail message for Respondent. The Court rejects the Respondent’s explanation and finds that Respondent knowingly, and intentionally misrepresented to Bar Counsel that he had not heard from Ms. Covington and that he was “waiting” for Ms. Covington to contact him. During a deposition on November 25, 2015, Respondent testified that he told Ms. Covington that he accepted a position as an Administrative Law Judge “right around late February or early March.” The Court found that the Respondent [sic] testimony was knowingly and intentionally false. CONCLUSIONS OF LAW Based on evidence presented at the evidentiary hearing, the hearing judge made the following conclusions of law: ⁶⁹ Maryland.

Rules of Professional Conduct 1.1—Compe-tence 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 [ejourt finds the Respondent in violation of Rule 1.1 for the reasons stated in the discussions of violations of Rules 1.2,1.3, and 1.4. Maryland Rules of Professional Conduct 1.2—Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer Rule 1.2(a) provides: Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions concerning the objectives of the representation and, when appropriate, shall consult with the client as to the means by which they are to be pursued.

A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. In September 2012, approximately one month after retaining the Respondent, Ms. Covington authorized the Respondent to make a settlement demand on GEICO.

Ms. Covington repeated that directive in January 2013 and March 2013. The undisputed evidence is clear that the Respondent did not send a letter of representation to GEI-CO until February 2013 and, at no time did he make any settlement demand. Accordingly, this [c]ourt finds the Respondent violated Rule 1.2(a). Maryland Rules of Professional Conduct 1,3—Diligence A lawyer shall act with reasonable diligence and promptness in representing a client. ⁷⁰ The Respondent did virtually no work on Ms, Covington’s matter.

The Respondent, as discussed in reference to Rule 1.2, failed to follow Ms. Covington’s directive as to settlement. The Respondent, as discussed in reference to Rule 1.4, failed to adequately communicate with Ms. Covington. The Respondent failed to timely send a letter of representation to GEICO, failed to request any relevant evidence from third parties to support Ms. Covington’s claim, and failed to make any settlement demand. Accordingly, this [c]ourt finds the Respondent violated Rule 1.3.

Maryland Rules of Professional Conduct 1.4—Communi-cation (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(f), is required by these Rules; (2) keep the client reasonably informed about the status of the matter; (3) promptly comply with reasonable requests for information; and (4) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Maryland Lawyers’ Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions reyarding the representation. The Respondent failed to respond to many of Ms. Coving-ton’s phone calls and emails. On those instances that the Respondent did response [sic], the responses were inadequate in that they failed to keep Ms. Covington reasonably informed about the status of her matter, failed to answer her questions and failed to comply with Ms. Covington’s reasonable requests for information.

Accordingly, the Court finds that the Respondent violated Rule 1.4(a). ⁷¹ The Respondent failed to explain to Ms. Covington her options upon his termination of the representation. The Respondent failed to advise Ms. Covington that she was entitled to the return of her file (and termination of the agreement) if she so chose. The Respondent failed to advise Ms. Covington of the name of the attorney that he had purportedly made arrangements with to take over the representation to allow Ms. Covington to make an informed decision as to whether or not she wanted to retain the new attorney or whether she wanted to seek alternate counsel. Accordingly, this Court also finds Respondent violated Rule 1.4(b).

Maryland Rules of Professional Conduct 1.16—Declining or Terminating Representation Rule 1.16(a) provides: (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the Maryland Lawyers’ Rules of Professional Conduct or other law; (2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or (3) the lawyer is discharged. Rule 1.16(d) provides: (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law. ⁷² The Respondent failed to timely advise Ms. Covington that the representation was terminated. The Respondent knew in February 2013 that he would be closing his office in March.

On March 12, 2013, the Respondent began employment as an Administrative Law Judge and was prohibited from practicing law. Had the Respondent continued to practice law following his appointment, he would have violated Rule 5.5(a) of the Maryland Lawyers’ Rules of Professional Conduct. Between March 12, 2013 and May 31, 2013 the Respondent failed to advise Ms. Covington that the representation was terminated and withdraw from her matter. Accordingly, this [c]ourt finds the Respondent violated Rule 1.16(a).

The Respondent failed to give Ms. Covington timely notice of the termination of the representation, failed to advise her that she could employ her own counsel, failed to return her file and failed to advise GEICO that he was withdrawing his appearance. Accordingly, this [c]ourt finds the Respondent violated Rule 1.16(d). Maryland Rules of Professional Conduct 8.1—Bar Admission and Disciplinary Matters An applicant for admission or reinstatement to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not: (a) knowingly make a false statement of material 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 Rule does not require disclosure of information otherwise protected by Rule 1.6. The Respondent violated Rule 8.1(a) when he knowingly and intentionally misrepresented to Bar Counsel, in his letter of May 12, 2014, that he informed Ms. Covington that he was closing his practice “upon his appointment” as an ⁷³ Administrative Law Judge, that an unnamed attorney had agreed to take over Ms. Covington’s case and that Ms. Covington had impressed upon him that she would make her own arrangements for successor counsel.

On August 12, 2014, the Respondent knowingly and intentionally misrepresented to Bar Counsel, through counsel, that he was waiting for Ms. Covington to contact him and that he “heard nothing from her.” Accordingly, this [cjourt finds the Respondent violated Rule 8.1(a). The Respondent failed to timely comply with Bar Counsel’s lawful demands for information made on March 19, 2014, June 2, 2014, and July 25, 2014. Accordingly, this [cjourt finds the Respondent violated Rule 8.1(b). Maryland Rules of Professional Conduct 8.4—Misconduct It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Maryland Lawyers’ Rules of Professional Conduct, knowinyly assist or induce another to do so, or do so throuyh the acts of another; (c) enyage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; This [cjourt, as discussed herein, having concluded that Respondent violated multiple Rules, concludes that Respondent has also committed misconduct in violation of Rule 8.4(a).

The [cjourt finds that each violation of Rule 8.1(a) constitutes a violation of Rule 8.4(c). The Respondent’s conduct, taken as a whole, most certainly brings the legal profession into disrepute in violation of Rule 8.4(d). (internal citations omitted). Respondent concedes that he violated Rules 1.4, 1.16, and 8.4(a) but has filed exceptions as to the hearing judge’s conclusions regarding Rules 1.1, 1.2, 1.8, 8.1 and 8.4(c).

Respondent makes no formal exception to the finding that he violated Rule 8.4(d). ⁷⁴ DISCUSSION Standard of Review In attorney discipline proceedings, “this Court has original and complete jurisdiction and conducts an independent review of the record.” Attorney Grievance Comm’n v. Cherry-Mahoi, 388 Md. 124, 152 , 879 A.2d 58, 76 (2005). In Attorney Grievance Comm’n v. Blair, we articulated the appropriate standard of review in attorney disciplinary matters: “we accept the hearing judge’s findings of fact unless shown to be clearly erroneous .... We conduct a de novo review of the hearing judge’s conclusions of law.” 440 Md. 387, 400-01 , 102 A.3d 786, 793 (2014) (citations omitted). It is Petitioner’s burden to prove averments in the petition by clear and convincing evidence.

Md. Rule 16-757(b). 4 When a Respondent asserts an affirmative defense or a matter of mitigation, it is the Respondent’s burden to prove the defense or matter by a preponderance of the evidence. Id. Exceptions to Findings of Fact Respondent raises several exceptions to the hearing judge’s factual findings. First, Respondent challenges the hearing judge’s omission of the fact that Ms. Covington forwarded an e-mail to Respondent on March 4, 2013 containing a complete list of her medical providers and other documents related to her personal injury claim.

Respondent contends that this undisputed fact was presented by Bar Counsel in its casein-chief, and that this fact is relevant to this Court’s consideration of alleged violations of Rules 1,1, 1.2, and 1.3. Bar Counsel disagrees with Respondent’s characterization of March 4, 2013 as the date which Respondent first received information regarding Ms. Covington’s medical providers and points that there is evidence Ms. Covington forwarded her medical bills to Respondent on September 2, 2012 and provided duplicates and updated records on March 4, 2013. Bar Counsel thus contends that the omission was not clearly ⁷⁵ erroneous. We conclude that the omission of the fact that Respondent received a second transmittal of Ms. Covington’s medical documents was not clearly erroneous.

Respondent had in his possession most of the relevant documents as early as September 2012 and could have begun work on Ms. Coving-ton’s matter. Respondent never requested any evidence from any third parties despite having an authorization for the release of Ms. Covington’s medical records. Furthermore, for reasons discussed below, this omitted fact has no bearing on this Court’s consideration of violations of Rules 1.1, 1.2, and 1.3. See Attorney Grievance Comm’riv.

Sheinbein, 372 Md. 224, 241 , 812 A.2d 981, 990-91 (2002) (hearing judge’s omission of a factual finding was not clearly erroneous where the fact has “little bearing on the outcome of [the] proceeding” and is irrelevant). Accordingly, we overrule Respondent’s exception. Second, Respondent excepts to the hearing judge’s omission of the undisputed facts that during Ms. Covington’s initial meeting with Respondent on August 25, 2012, Respondent discussed personal injury claims generally with Ms. Covington as well as how Respondent specifically intended to handle Ms. Covington’s case and that the retainer agreement signed by Ms. Covington contained language informing Ms. Covington that the personal injury claim process could involve “an extended period of time” where no communication between her and Respondent would occur. We hold that omission of this fact was not clearly erroneous.

Respondent’s misconduct stems from his neglect of Ms. Covington’s case, his failure to respond to her reasonable requests for information, and his failure to do virtually any work on her behalf. It is of no moment that Ms. Covington was informed that she may not hear from Respondent for an extended period of time because the Rules still impose duties of communication and diligence (Rules 1.4 and 1.3), which, as we discuss below, Respondent violated. See Sheinbein, 372 Md. at 241 , 812 A.2d at 990-91 (hearing judge’s omission of a factual finding was not clearly erroneous where the fact has “little bearing on the outcome of [the] proceeding” and is irrelevant). Therefore, we overrule Respondent’s second exception. ⁷⁶ Third, Respondent filed an exception to the hearing judge’s finding that Respondent knowingly and intentionally provided false information to Bar Counsel.

The hearing judge found that Respondent “knowingly and intentionally misrepresented to Bar Counsel that he had not heard from Ms. Covington and that he was ‘waiting’ for Ms. Covington to contact him.” In making this first factual finding, the hearing judge seemed to rely on the “undisputed evidence presented at trial ... that Ms. Covington called the Respondent nine time between July 1, 2013 and September 30, 2013.” Assuming, as we do, that such calls were in fact made, evidence of the existence of the calls is not clear and convincing evidence of a knowing misrepresentation to Bar Counsel. The calls from Ms. Covington took place between June to September 2013, and Respondent made the representation at issue through his attorney to Bar Counsel in August 2014, approximately one year later. Evidence that the calls were made is not clear and convincing evidence that Respondent remembered the calls at the time his attorney wrote to Bar Counsel, almost one year later. There is no evidence that Respondent ever spoke to Ms. Covington by phone between July 1, 2013 and September 30, 2013.

Additionally, there is no evidence that Respondent acknowledged receipt of these calls. In other words, there is no evidence of Respondent’s prior or present (at the time counsel wrote to Bar Counsel) knowledge of the fact that Respondent had indeed heard from Ms. Covington. The hearing judge failed to support his finding with any analysis or evidence in the record—direct or circumstantial—to show that Respondent knowingly misrepresented to Bar Counsel that he had not heard from Ms. Covington. Accordingly, we sustain Respondent’s exception to the hearing judge’s factual finding that Respondent knowingly and intentionally misrepresented the facts to Bar Counsel.

The hearing judge also found that Respondent’s deposition testimony that he told Ms. Covington of his appointment as an Administrative Law Judge around “late February or early March” was “knowingly and intentionally false.” Respondent explains that in his deposition testimony, he testified that ⁷⁷ he believes he told Ms. Covington that he accepted a position as an Administrative Law Judge “right around late February or early March.” Respondent posits that his mistaken belief and failed memory cannot be equated to a knowing and intentional representation. Bar Counsel argues that Respondent is merely restating his testimony, which the hearing judge considered and rejected, and that Respondent fails to explain why this finding was clearly erroneous. We agree with Respondent and hold that the record lacks clear and convincing evidence that Respondent knowingly and intentionally misrepresented the facts. The hearing judge failed to articulate the basis from which he believed that Respondent’s deposition testimony was a knowing and intentional misrepresentation.

Respondent testified at his deposition that to his recollection, he had the conversation terminating his representation of Ms. Covington sometime in late February or early March. Ms. Covington testified at her deposition that the conversation did not occur until late May, and there is undisputed telephone record evidence showing that Ms. Covington called Respondent at the end of May, and that she continued to call him several times between then and September 2013. If the hearing judge reached his conclusion based upon his determination that Ms. Covington was the more credible witness, he did not specifically articulate so. Even if the hearing judge specifically concluded that Ms. Covington was the more credible witness and that the conversation took place in May, such evidence only pertains to a finding of when the conversation took place and not whether Respondent knowingly misrepresented the facts.

The evidence may be clear and convincing to prove that Respondent made a misrepresentation as to the time that the conversation took place, however, the record lacks clear and convincing evidence that Respondent made such representation with present knowledge of its falsity because Respondent testified that it was his recollection that the conversation had taken place at an earlier time. See Attorney Grievance Comm’n v. Mooney, 359 Md. 56, 78 , 753 A.2d 17, 29 (2000) (“[I]n order to establish its case against respondent, Bar Counsel is required ⁷⁸ to prove with clear and convincing evidence that respondent’s supposed false statements were made with the knowledge that such statements were false when he made them.”). The hearing judge’s factual finding that Respondent knowingly and intentionally misrepresented the facts is conclusory and is not supported by the evidence. Such conclusory reasoning does not satisfy the clear and convincing evidentiary standard.

Accordingly, we sustain Respondent’s exception to the hearing judge’s factual finding that Respondent knowingly and intentionally made a misrepresentation in his deposition testimony. Fourth and finally, Respondent challenges the hearing judge’s omission of the fact that Ms. Covington was able to successfully settle her claim with the assistance of her new attorney. Bar Counsel argues this was not clearly erroneous because this fact has no bearing upon the issue of whether Respondent violated the rules. We agree with Bar Counsel that lack of prejudice to a client’s case may not be relevant to the issue of whether Respondent violated the MLRPC, however, we note, as discussed in further detail below, that this fact is relevant to the issues of sanctions.

Because this fact was undisputed and established by clear and convincing evidence and because it bears relevance to the issue of sanctions, we hold that the hearing judge was clearly erroneous in his omission of this fact. We accordingly sustain Respondent’s fourth exception to the findings of fact. Exceptions to Conclusions of Law Rule 1.1—Competence Respondent argues that a lack of diligence does not in and of itself constitute incompetence. “Rule 1.1 requires an attorney to provide competent