Attorney Grievance Commission v. Potter

¹³¹ RAKER, Judge. The Attorney Grievance Commission, acting through Bar Counsel, filed a Petition for Disciplinary Action against Steven John Potter, alleging violations of the Maryland Rules of Professional Conduct. The Commission charged respondent with violating Maryland Rules of Professional Conduct 1.4 (Communication), 1 1.7 (Conflict of interest), 2 and 8.4 (Misconduct). 3 Pursuant to Maryland Rule 16-752(a), we referred the matter to Judge Stuart R. Berger of the Circuit Court for Baltimore City to make findings of fact and proposed conclusions of law. Judge Berger held an evidentiary hearing and concluded that respondent had not violated any of the Rules. ¹³² I. Judge Berger made the following findings of fact and conclusions of law: FINDINGS OF FACT “1.

Respondent, Steven J. Potter, Esq. is 39 years old. He graduated from law school in 1989 and was admitted to the Maryland Bar in 1990. After completing a judicial clerkship, he began to practice law thereafter as an employee with the Law Office of Sheldon Braiterman, P.A. In February 1992, he left his employment at the Law Office of Sheldon Braiterman. From 1992-1997, the Respondent had his own practice.

There is no evidence of any prior disciplinary complaints filed against the Respondent during his 13 year tenure as a member of the Maryland Bar. “2. André R. Weitzman, Esq. has been a member of the Maryland Bar since 1979. From at least 1992 to the present, Mr. Weitzman has conducted his practice as a sole practitioner. See Tr., Afternoon Session, p. 11.

From 1992 until July 1997, Mr. Weitzman and the Respondent had offices in the same building. During this time, Mr. Weitz-man employed the Respondent as an independent contractor to work with- him on some of Mr. Weitzman’s cases. Mr. Weitzman and the Respondent had fee sharing agreements during that time period. From 1992 to July 1997, Mr. Weitzman and the Respondent did not have any disputes over those fee sharing agreements.

See Tr., Afternoon Session, p. 32. “3. During the period of July 1997 until on or about July 26, 2001, Mr. Potter was employed by the Law Offices of André R. Weitzman (hereinafter ‘the law firm’). There is no writing reflecting the terms of Mr. Potter’s employment with the Law Offices of André R. Weitzman. See Tr., Morning Session, p. 35.

Mr. Weitzman testified that the terms of Mr. Potter’s employment called for a salary of $3,500.00 a month. See Tr., Morning Session, p. 17 and Afternoon Session, p. 13. ¹³³ “4. In addition, the Respondent believed he was entitled to a percentage of the net proceeds, if any, from the law firm. Further, under the verbal terms of Mr. Potter’s employment, the Respondent received a percentage of the fees generated by cases he worked on for the firm.

When the Respondent brought a client to the law firm, he received 50% of the fee generated by that client. After the fees were deposited into the law firm’s bank account, the Respondent would receive his share of the fees, less "withholding taxes, from Mr. Weitzman. See Tr., Morning Session, p. 39 and Afternoon Session, p. 17. “5. While employed by Mr. Weitzman, the Respondent was provided an office in which to work.

Mr. Potter kept the files he was working on for the law firm in that office. Mr. Weitzman testified that the Respondent was free to remove files from the office if he needed to go to court or to take a file home. It was Mr. Weitzman’s custom to retain client files while the representation was active and for at least five years thereafter. See, Tr., Afternoon Session, pp. 25-26. “6.

Two of the clients that the Respondent brought to the law firm were Joseph Caldart (hereinafter ‘Caldart’) and Lorrie Kazmar (hereinafter ‘Kazmar’). See Tr., Afternoon Session, pp. 20-22. Accordingly, Mr. Potter, not Mr. Weitz-man, brought both the Caldart and Kazmar matters to the law firm. See Tr., Morning Session, pp. 36-38. “7.

The Caldart matter involved both a worker’s compensation matter and a third-party claim. Mr. Caldart signed a form agreement entitled ‘Power of Attorney and Contingent Fee Arrangement’ on June 25, 1999 on the letterhead of the Law Offices of André R. Weitzman. See Joint Exhibit 21. The agreement calls for payment of a fee of ‘one-third (33/é) if terminated without suit’ and ‘one-third (33/é) if suit is tried, of all amounts recovered by settlement or verdict’ and reimbursement of advanced costs or as awarded by the Worker’s Compensation Commission.

See Joint Exhibit 21. ¹³⁴ “8. Although the form agreement designates Mr. Weitz-man as the attorney for the purpose of representing Caldart in connection with an ‘attack by goat at Forward Visions on 6/14/99,’ it was Mr. Potter, not Mr. Weitzman, who served as Caldart’s attorney. See Tr., Afternoon Session, pp. 59-60. Indeed, Mr. Weitzman did not ‘remember spending any time with Mr. Caldart,’ and ‘did not handle the case.’ See Tr., Afternoon Session, pp. 59-60. “9.

Lome Kazmar signed an agreement entitled ‘Power of Attorney and Contingent Fee Arrangement’ dated May 12, 2000. See Joint Exhibit 17. The agreement states that Ms. Kazmar ‘appoints André R. Weitzman and Steven J. Potter as Attorneys for the purpose of representing [her] in connection with all claims and cases of action arising out of [her] contracting mesothelioma, and other illness related to her exposure to asbestos.’ See Joint Exhibit 17. “10. The Kazmar agreement calls for a fee of ‘one-third (33⅓) if terminated without suit’ and ‘one third (33⅓) if suit is tried, of all amounts recovered by settlement or verdict and reimbursement to said Attorney for expenses advanced including Court costs.’ See Joint Exhibit 17.

Ms. Kazmar died during the representation, and Barbara St. John, as personal representative for her estate, entered into a similar agreement on behalf of the estate. See Joint Exhibit 18. “11. Although both Messrs. Weitzman and Potter were formerly retained in the ‘Power of Attorney and Contingent Fee Agreement,’ Mr. Potter, not Mr. Weitzman, served as the attorney for Ms. Kazmar, and thereafter, her estate.

Indeed, Mr. Potter interviewed Ms. Kazmar ‘extensively,’ while Mr. Weitzman poked his head in and said hello. See Tr., Morning Session, p. 38. “12. The clear and convincing evidence elicited at the hearing demonstrates that Mr. Potter provided the legal services to the clients on behalf of the law firm regarding both the Caldart and Kazmar matters. See, Tr., Afternoon Session, pp. 20-23 and 59-60. “13.

Respondent elected to leave his employment with the Law Offices of André R. Weitzman for several reasons ¹³⁵ including, but not limited to, the fact the Respondent believed that Mr. Weitzman had not lived up to their agreement as to Mr. Potter’s share of the profits for 2000, and because Mr. Weitzman had hired an inexperienced attorney and paid him the same as he paid the Respondent. See Tr., Morning Session, p. 99. The Respondent also thought his salary was too low and he did not always agree with Mr. Weitzman’s methods of operation. See Tr., Morning Session, p. 99. “14.

On July 26, 2001, the Respondent advised Mr. Weitzman that he was resigning from his employment effective immediately. See Tr., Afternoon Session, pp. 24-25. The Respondent did not provide advance notice of his resignation to Mr. Weitzman because he feared that Mr. Weitzman would take action to interfere with and prejudice the best interests of the clients who Mr. Potter brought to the law firm. See Tr., Morning Session, pp. 128-29. “15.

Mr. Potter did not communicate with any client, including Joseph Caldart or Barbara St. John, concerning his intention to resign from his employment with the law firm until his resignation was effective. Mr. Potter refrained from telling any client that he was leaving the law firm until after he left, out of a concern not to breach any duty of loyalty that he might have to his employer. See Tr., Morning Session, pp. 74 and 100. “16. Mr. Potter did not solicit any of the clients of the law firm before he resigned from his employment.

See Tr., Morning Session, p. 100. Indeed, Mr. Weitzman acknowledged that ‘none of the clients suffered ... ’ because of Mr. Potter’s departure from the law firm. See Tr., Afternoon Session, p. 39. “17. Joseph Caldart terminated his contingency fee agreement with the Law Offices of André R. Weitzman on or about July 27, 2001 and entered into a new fee agreement with Mr. Potter at that time.

See Tr., Morning Session, pp. 71-73; See Joint Exhibits 16, 22. The letter written to Mr. Weitzman notes that ‘[i]f there are any expenses arising from Mr. Potter’s representation of [Mr. Caldart] for which ¹³⁶ you are requesting reimbursement, please forward your request with supporting documentation to Mr. Potter.’ See Joint Exhibit 16. “18. Barbara St. John, the personal representative of the Estate of Lorrie Kazmar terminated all contingency fee agreements between Ms. Kazmar, Ms. St. John, the Estate of Lorrie Kazmar and the Law Offices of André R. Weitz-man on or about August 31, 2001. Ms. St. John, as personal representative of the Estate of Lorrie Kazmar, entered into a new fee agreement with Mr. Potter as did the Estate’s trial counsel in New York.

See Tr., Morning Session, pp. 75-76, 96; See Joint Exhibits 19, 20. The letter is silent as to the contingency fee agreement or the costs advanced by the Law Offices of André R. Weitzman in the Kazmar matter. Joint Exhibit 20. “19. The clear and convincing evidence demonstrates that the clients who followed Mr. Potter when he left the Law Office of André R. Weitzman, for all practical purposes, did not know Mr. Weitzman.

See Tr., Morning Session, P. 124; Tr., Afternoon Session, pp. 58-60. As a result, Mr. Potter had every reason to believe that both the Caldart and Kazmar clients would elect to have him continue his representation if he left the Law Offices of André R. Weitzman. See Tr., Morning Session, pp. 123-24. “20. The Respondent believed that he would need the client files relating to the Caldart and Kazmar matters to continue to represent them properly.

Mr. Potter believed that if he did not take possession of the files relating to the Caldart and Kazmar matters, Mr. Weitzman would withhold the files or take other action, thereby impairing the Respondent’s ability to represent the clients and otherwise impede the progress of the clients’ cases. Mr. Potter anticipated that Mr. Weitzman would forcibly retain possession of the clients’ files in order to obtain a financial share from the proceeds of any recovery in excess of the amount of any quantum meruit to which Mr. Weitzman might be entitled. See Tr., Morning Session, pp. 93-94; Tr., Afternoon Session, p. 9; Exhibits 12,13 and 14. ¹³⁷ “21. The Respondent also took a file relating to a bankruptcy matter involving Marlene King.

Although Mr. Weitzman retained both the unearned attorneys’ fees and the advance filing fee in the King case, Mr. Potter prepared and filed the case for Mrs. King and handled it to its conclusion for her without additional compensation or cost to Mrs. King. See Tr., Morning Session, p. 129. “22. The clients’ files that Mr. Potter took with him from the Law Offices of André R. Weitzman were maintained intact. Copies were supplied to Bar Counsel.

The clear and convincing evidence at the hearing demonstrates that no part of the contents of those files has been lost or destroyed. See Tr., Morning Session, pp. 121-22. “23. At the time of the hearing before the Circuit Court for Baltimore City, some twenty-two months after Mr. Potter’s resignation from his employment with the Law Offices of André R. Weitzman, the Caldart and Kazmar cases remain pending, although settlement in Caldart is represented to be likely. The Caldart case was not filed in the Circuit Court for Baltimore County until after Mr. Potter resigned from the Law Offices of André R. Weitz-man.

See Tr., Morning Session, p. 134. The discovery proceedings in the Kazmar case did not begin until after Mr. Potter resigned from the law firm. “24. Prior to his departure from the law firm, the Respondent accessed the firm’s computer and deleted the files maintained on the computers for the Caldart and Kazmar matters. See Tr., Afternoon Session, pp. 27-28.

The computer records included all documents prepared by the Respondent and/or the firm’s secretaries relating to these two matters. See Tr., Afternoon Session, p. 29. “25. After Mr. Potter’s departure, André Weitzman wrote a letter to Mr. Caldart threatening Mr. Caldart with a lawsuit unless Mr. Potter made ‘suitable arrangements under the employment contract for a payment of a percentage of the fee earned in [the] case.’ See Joint Exhibit 10. Mr. Weitzman also sent a letter to the law firm engaged to represent the Estate of Lome Kazmar advising the law ¹³⁸ firm that the Law Offices of André R. Weitzman ‘maintains a proprietary interest in the payment of a fee in th[e] case and a lien.’ See Joint Exhibit 11.

Mr. Weitzman made similar claims to the employer/insurer’s defense counsel, the insurer’s adjusting agents, the third party insurer’s agents and the third party defendant’s counsel. See Joint Exhibits 8, 9 and 11. “26. After resigning from the Law Offices of André R. Weitzman, Mr. Potter acted appropriately by securing counsel (Brian Parker, Esq.) to advise him and represent him on any legal and ethical issues that arose from his departure from the Law Offices of André R. Weitzman, as well as to attempt, in good faith, to resolve any and all disputes with Mr. Weitzman. See Tr., Morning Session, pp. 77, 104; Tr., Afternoon Session, pp. 71-72. “27.

Mr. Potter, through competent counsel, Brian Parker, Esq. attempted, responsibly, to address with Mr. Weitzman all pending client matters relating to clients of the law firm, as well as the division of potential attorneys’ fees from the Caldart and Kazmar cases. See Tr., Afternoon Session, pp. 74-77; See Joint Exhibits 4, 5. Notwithstanding Mr. Parker’s credible efforts to resolve the disputes by and between Mr. Potter [sic] and Mr. Weitzman, Mr. Weitzman refused to resolve his differences with Mr. Potter. “28. Mr. Weitzman filed his grievance against Mr. Potter on October 16, 2001, only after repeatedly threatening Mr. Potter’s attorney (Brian Parker, Esq.), that he would do so if Mr. Potter did not agree to the terms of Mr. Weitz-man’s financial demands.

See Tr., Afternoon Session, p. 78; See Joint Exhibits 1, 36. “29. After Mr. Parker’s efforts proved unproductive, Norman Smith, Esq. assumed the role of counsel to Mr. Potter. The threats from Mr. Weitzman continued including Mr. Weitzman’s representation that he would initiate criminal proceedings against Mr. Potter for theft if Mr. Potter did not acquiesce to Mr. Weitzman’s financial demands. See Tr., Afternoon Session, pp. 75, 81, 92 and 97. ¹³⁹ “30.

Only after Mr. Weitzman was unable to achieve the fee-sharing agreement that he proposed did Mr. Weitzman file, according to Mr. Parker, his complaint against Mr. Potter with the Attorney Grievance Commission. See Tr., Afternoon Session, p. 78; See Joint Exhibits 12, 13 and 14. “31. According to the credible testimony of Messrs. Parker and Smith, the Respondent was willing to resolve the financial dispute with Mr. Weitzman on terms they both thought were generous to Mr. Weitzman.

Mr. Weitzman’s hostility towards Mr. Potter in his communications with Messrs. Parker and Smith prevented a settlement from occurring. See Tr., Afternoon Session, pp. 76, 88, 91; See Joint Exhibits 5,13 and 14. “32. Notwithstanding the fee dispute between Mr. Weitzman and the Respondent, Mr. Potter reimbursed Mr. Weitzman for all funds advanced by the Law Offices of André R. Weitzman for expenses associated with the Cal-dart and Kazmar litigation.

See Tr., Morning Session, p. 105; See Joint Exhibit 32, 33. “33. The Respondent acknowledged reviewing the financial records of the Law Offices of André R. Weitzman for the year 2000. Mr. Weitzman considered these reports to be his private records. See Tr., Afternoon Session, P. 51.

The entries on the reports include deposits from Mr. Weitz-man’s personal accounts, which he used to pay firm salaries and expenses. The reports also contained disbursements for personal expenses. See Tr., Afternoon Session, pp. 48-50. “34. The Respondent maintains that he reviewed the financial summaries to determine whether there were any profits in which he had a right to share.

Mr. Weitzman had advised Mr. Potter that the law firm had no profits in 2000, but the firm’s accountant informed Mr. Potter that there were profits. See Tr., Morning Session, pp. 46, 47, 102. “35. Mr. Weitzman did not tell Mr. Potter he could not look at the financial summaries of the law firm. See Tr., Morning Session, p. 50.

If the Respondent had asked, Mr. Weitzman might have shown the reports to the Respondent ¹⁴⁰ and given an explanation. See Tr., Morning Session, pp. 42, 50. Indeed, Mr. Weitzman had offered Mr. Potter the opportunity to review the law firm’s records in the past. See Tr., Morning Session, pp. 46, 120.

The Court finds that the Respondent’s actions in reviewing the records were reasonable inasmuch as he believed he was entitled to a percentage of the law firm’s net proceeds as part of the verbal employment agreement arrived at between him and his employer. CONCLUSIONS OF LAW “The Petition for Disciplinary Action filed in the Court of Appeals alleges that the Respondent violated Maryland Rules of Professional Conduct 1.4, 1.7(b) and (c) and 8.4(a), (b), (c) and (d). Rule 1.4, entitled ‘Communication’ provides that: (a) A lawyer shall keep a client reasonably informed about the status of a 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 representation.

This Court finds that Bar Counsel has not demonstrated that the Respondent violated Rule 1.4 concerning client communication. Bar Counsel has not sustained its burden of proof because it did not show, by clear and convincing evidence, that any client represented by Mr. Weitzman or Mr. Potter was not kept ‘reasonably informed of the status’ of his or her matter. Further, Bar Counsel did not offer any evidence whatsoever that any client made a reasonable request for information with which Mr. Potter failed to comply. “The Petitioner maintains that the letters Respondent wrote on behalf of Mr. Caldart and Ms. St. John ‘indicate that the clients were not aware of their obligations to [Mr.] Weitzman.’ See Petitioner’s Proposed Findings of Fact and Conclusions of Law at 20; See Joint Exhibits 16 and 20. ¹⁴¹ Respectfully, there is nothing in either letter, or in any communication satisfying Bar Counsel’s burden to show that the Respondent failed to keep his clients reasonably informed about the status of a matter or failed to explain a matter to the extent reasonably necessary to permit any client to make any informed decision regarding their representation. “Clearly, no client testified in these proceedings. Although direct testimony from a client is unnecessary to establish a violation of Maryland Rule of Professional Conduct 1.4, there must be clear and convincing evidence to establish such a violation.

Bar Counsel did not adduce clear and convincing evidence that either Mr. Caldart or Ms. St. John lacked the information necessary to make a decision as to which attorney they wanted to represent them. Indeed, the clients who followed Mr. Potter when he left the Law Offices of André R. Weitzman, for all practical purposes, were represented by Mr. Potter throughout the course of their representation at the Law Offices of André R. Weitz-man. As a result, the matters involving Mr. Caldart and the Estate of Lorrie Kazmar remained with Mr. Potter after he left his employment with Mr. Weitzman. “Further, this Court finds that Bar Counsel has not established by clear and convincing evidence that any of Mr. Potter’s actions violated Maryland Rule of Professional Conduct 1.7(b) or (c) concerning conflicts of interest. Maryland Rule of Professional Conduct 1.7(b) and (c), entitled ‘Conflict of Interest: General Rule’ provides that: (b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s interests, unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation, (c) The consultation required by paragraphs (a) and (b) shall include explanation of the implications of the common representation and any limitations resulting from the lawyer’s re ¹⁴² sponsibilities to another, or from the lawyer’s own interests, as well as the advantages and risks involved.

Bar Counsel contends that the Respondent acted solely in his own interest when he denied Weitzman access to the files and other information concerning the representation thereby involving the clients in his dispute with [Mr.] Weitz-man.’ See Petitioner’s Proposed Findings of Fact at 20-21. The clear and convincing evidence elicited at the hearing demonstrates that Mr. Potter’s representation of Mr. Cal-dart and the Estate of Lorrie Kazmar was [sic] not materially limited by Mr. Potter’s self-interest. “There is no allegation during these proceedings that Mr. Potter did not represent competently his clients, including Mr. Caldart and the Estate of Lorrie Kazmar. Further, there is no evidence in the record that Mr. Potter took advantage of — or even attempted to take advantage of — any client in any way. On the contrary, the clear and convincing evidence before this Court is that each client consented to Mr. Potter’s continued representation after appropriate consultation. “The Respondent is also charged with violating Rule 8.4(a), (b), (c) and (d) of the Maryland Rules of Professional Conduct.

Rule 8.4 entitled ‘Misconduct’ provides that: It is professional misconduct for a lawyer to: (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; (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice.... “This Court finds that Bar Counsel has not established by clear and convincing evidence that Mr. Potter’s actions violated Maryland Rules of Professional Conduct 8.4(a), (b), ¹⁴³ (c) or (d). With regard to the allegations of a Rule 8.4(a) violation, for the reasons stated supra at pp. 131-42 and infra at pp. 143-51, this Court does not find by clear and convincing evidence that Mr. Potter has violated or has attempted ‘to violate the Rules of Professional Conduct.’ Further, there is no allegation that Mr. Potter knowingly assisted or induced anyone to violate the Rules of Professional Conduct or did so through anyone else. As a result, this Court finds that Bar Counsel has not demonstrated that the Respondent violated Rule 8.4(a) of the Maryland Rules of Professional Conduct. “Rule 8.4(b) of the Maryland Rules of Professional Conduct provides that: It is professional conduct for a lawyer to: (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects. “The Court finds that Petitioner has failed to demonstrate through clear and convincing evidence, that Mr. Potter committed ‘a criminal act that reflected adversely on his honesty, trustworthiness or fitness as a lawyer in other respects.’ The Court acknowledges that it is not necessary for the Respondent to be charged or convicted of the criminal offense in order to find a violation of Rule 8.4(b) of the Maryland Rules of Professional Conduct. See Attorney Grievance Commission v. Garland, 345 Md. 383, 394-95 , 692 A.2d 465 (1997) (holding that there is no requirement that the Respondent be charged with or prosecuted for the criminal offense to find a violation of Rule 8.4(b) of the Maryland Rules of Professional Conduct; all that is required is proof of the underlying conduct by clear and convincing evidence).

Nevertheless, based on clear and convincing evidence, the Court finds that Respondent has not committed a criminal act that reflects adversely on his honesty, trustworthiness or fitness as a lawyer in other respects. “Petitioner attempts to show that Mr. Potter violated Section 7-104(a) of the Maryland Theft Statute when he ¹⁴⁴ deprived Mr. Weitzman of the paper and computer generated materials relating to the Caldart and Kazmar matters. Section 7-104(a) provides, in relevant part, that: A person may not willfully or knowingly obtain or exert unauthorized control over property, if the person: • intends to deprive the owner of the property; • willfully or knowingly uses, conceals, or abandons the property in a manner that deprives the owner of the property; or • uses, conceals, or abandons the property knowing the use, concealment or abandonment probably will deprive the owner of the property. Md. Code Ann., Criminal Law § 7-104 (a) (2002). The Court finds that under the facts and circumstances of this case, Respondent lacked any intent to deprive Mr. Weitz-man of client files and computer records.

The client files were kept intact at all times; no part of any file has been lost or destroyed. The Court further finds that while Respondent’s deletion of computer records may have been inappropriate and improper, Petitioner has failed to demonstrate by clear and convincing evidence, that the deletion of computer records under the facts and circumstances of this case constitute^] a criminal act that reflected adversely on his honesty, trustworthiness or fitness as a lawyer in other respects. “Mr. Potter reasonably believed that the clients would follow him after leaving Mr. Weitzman’s firm. See Findings of Fact, supra, p. 136-37. At all times, Respondent did what he believed was in the best interests of his clients.

Indeed, had the clients instructed him to do so, Respondent would have transferred the files back to Mr. Weitzman. See Tr., Morning Session, p. 119. Under the facts and circumstances of this case, the Court finds that Mr. Potter did not commit a criminal act. Further, because this Court finds that Mr. Potter acted solely in his clients’ best interests, the Court finds that Petitioner [sic] has failed to show that Mr. ¹⁴⁵ Potter acted in any way that reflected adversely on his honesty, trustworthiness or fitness as a lawyer. “Further, the Petitioner has failed to demonstrate that the Respondent’s conduct constituted fraudulent misappropriation by a fiduciary.

Pursuant to Md. Code Ann., Criminal Law § 7-113 (2002), it is prohibited for a fiduciary to: • fraudulently and willfully appropriate money or a thing of value that the fiduciary holds in a fiduciary capacity contrary to the requirements of the fiduciary’s trust responsibility; or • secrete money or a thing of value that the fiduciary holds in a fiduciary capacity with a fraudulent intent to use the money or thing of value contrary to the requirements of the fiduciary’s trust responsibility. For the reasons set forth above, the Court finds that Petitioner has failed to show, through clear and convincing evidence, that Respondent violated Section 7-113. Under the facts and circumstances of this case, Mr. Potter acted in the sole interests of his clients. Accordingly, this Court finds that Petitioner has failed to establish, by clear and convincing evidence, that Respondent fraudulently misappropriated any files or computer records or any other thing of value in violation of Section 7-113.

Indeed, all of the files were maintained intact and copies provided to Bar Counsel. Accordingly, Petitioner has failed to demonstrate by clear and convincing evidence that Respondent violated Rule 8.4(b) of the Maryland Rules of Professional Conduct. “Rule 8.4(c) of the Maryland Rules of Professional Conduct provides that: It is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation. “For the reasons stated supra at 140-44 and infra at pp. 145-51, this Court does not find, by clear and convincing evidence, that Mr. Potter engaged in conduct involving dishonesty, fraud, deceit or misrepresentation. While it is undisputed that Mr. Potter removed files and deleted com ¹⁴⁶ puter records, he did so in order to represent competently the clients, not to be dishonest or deceitful. Mr. Potter’s actions served solely to protect his clients’ interests.

While the Court does not condone Mr. Potter’s actions, this Court finds that Mr. Potter did not violate Rule 8.4(c) of the Maryland Rules of Professional Conduct under the facts and circumstances of these matters. Mr. Potter reasonably believed that both the Caldart and Kazmar clients would choose to have him continue his representation if he terminated his employment with Mr. Weitzman. See Findings of Fact, p. 136-37. As such, Mr. Potter did what he thought was in the best interests of his clients.

Further, Mr. Potter believed that if he did not take possession relating to the Caldart and Kazmar matters, Mr. Weitzman would withhold the files or take other action thereby impairing the Respondent’s ability to represent the clients and otherwise impede the clients’ cases. “Petitioner directs the Court’s attention to three separate cases wherein courts found an attorney in violation of Rule 8.4(c) of the Maryland Rules of Professional Conduct. See Attorney Grievance Commission v. Kahn, 290 Md. 654 , 431 A.2d 1336 (1981); In re Complaint as to the Conduct of Corey B. Smith[, 315 Or. 260 ], 843 P.2d 449 (Or.1992); In the Matter of Gary M. Cupples, 952 S.W.2d 226 (Mo.1997). However, the facts of these cases are distinguishable from the facts presented to this Court. “In Kahn , the Respondent secretly removed and photocopied many office records from his boss’s firm for the express purpose of taking inventory and evaluating the firm’s open cases as a basis for a financial settlement with his boss for the transfer of the firm to Respondent. Kahn, supra, 290 Md. at 660 , 431 A.2d 1336 .

The information Respondent misappropriated was used for the Respondent’s own financial benefit. Id. at 676 [, 431 A.2d 1336 ]. Further, the Respondent paid ‘runners’ to solicit people involved in automobile accidents to go to the firm where the Respondent worked. Id. at 663 — 64[, 431 A.2d 1336 ]. ¹⁴⁷ “The hearing Court found that Respondent used false and fraudulent medical reports and bills for medical services as proof of damages in claims for personal injuries.

Id. at 672 [, 431 A.2d 1336 ]. The Respondent in Kahn committed highly egregious acts which were solely for the purpose of enhancing his personal financial status. In the case sub judice, the clear and convincing evidence demonstrates that the Respondent acted in his clients’ best interests and not for his own financial purpose. Indeed, the Respondent attempted, in good faith, to address with Mr. Weitzman the division of potential attorneys’ fees from the Caldart and Kazmar cases, which Mr. Weitzman refused to resolve.

See Findings of Fact, supra, pp. 138-39. “In Smith, supra, 843 P.2d 449 , the Respondent met 31 new clients in his office and had each sign individual retainer agreements in violation of the firm’s requirement to only use retainer agreements for representation by the Respondent’s firm. Smith, supra, 843 P.2d at 450 . The Respondent did not open new firm files for any of the 31 new clients. Id.

Upon leaving the firm, the Respondent took with him the files relating to all 31 of these clients as well as 50 to 75 other cases. Id. at 450-51. “Thereafter, the Respondent mailed letters to the 31 new clients announcing his opening of a new law office under a different name yet continuing to do the same work. Additionally, Respondent mailed letters to opposing counsel, insurance companies, medical providers, and workers’ compensation referees involved in the 31 matters notifying them of the changed address and law firm name. Further, only after the Respondent’s firm filed civil actions against the Respondent, did the Respondent inform the 31 clients that they had a choice whether to be represented by the Respondent or the firm.

The hearing Court found that ‘before the 31 new clients signed the individual retainer agreements, the [Respondent] anticipated leaving [his firm]; that he intended to keep these clients as his own if and when he left [the firm]; and that he therefore consciously kept the 31 new clients out of the [firm’s] file system.’ Id. at 451. The ¹⁴⁸ Court found that such conduct clearly involved dishonesty, fraud, deceit, or misrepresentation as prohibited by the Rules of Professional Conduct. “According to the Court in Smith , the letters from the accused to the 31 clients included misrepresentations to the clients; the letters from the accused to opposing counsel, insurance companies, medical providers, and workers’ compensation referees included misrepresentations to the public; and the surreptitious handling of the client files was dishonest and deceitful toward the firm. Id. In the present case, Mr. Potter made no such misrepresentations either to his clients, Mr. Weitzman, or other relevant parties; Mr. Potter consulted with his clients regarding his departure from the Law Offices of Andre R. Weitzman.

See supra, pp. 135-36. Further, the extent to which the Respondent in the Smith case concealed new clients from the firm and misappropriated numerous files involving numerous clients is a far cry from Mr. Potter’s actions. Mr. Potter never concealed the Caldart and Kazmar matters from Mr. Weitzman; Mr. Potter openly brought these matters with him to the Law Offices of André R. Weitzman. See Findings of Fact, supra, p. 134.

Bar Counsel’s attempt to compare the Respondent’s deplorable conduct in Smith is misplaced. As stated previously, Mr. Potter’s conduct flowed from his feeling of responsibility to his clients. Under the facts and