Attorney Grievance Commission v. Snyder

BATTAGLIA, Judge. The respondent, George Elmer Snyder, Jr. (hereinafter “Snyder”), was admitted to the bar of this Court on December 30,1976. On May 16, 2000, the Attorney Grievance Commission, acting pursuant to Maryland Rule 16-709(a), filed a petition for disciplinary action against Snyder, charging numerous violations of the Maryland Rules of Professional Conduct (“MRPC”), 1 including MRPC 1.1 (Competence), 2 MRPC 1.3 (Diligence), 3 MRPC 1.4 (Communication), 4 MRPC ²⁴⁸ 1.5 (Fees), 5 MRPC 1.7(b) and (c) (Conflict of interest), 6 MRPC ²⁴⁹ 1.8(a) (Conflict of interest: Prohibited transactions), 7 MRPC 1.15 (Safekeeping property), 8 MRPC 8.4(c) & (d) (Miscond ²⁵⁰ uct), 9 and former rules BU4 (Trust Account — Required Deposits), 10 BU7 (Commingling of Funds), 11 and BU9 (Prohibited ²⁵¹ Transactions). 12 The charges involved • Snyder’s representation of the Maryland Troopers Association (hereinafter “MTA”) and Dixie Mill Work Co., Inc. (hereinafter “Dixie Mill Work”), and complainants Dade Royer (hereinafter “Royer”), Marah Gensink (hereinafter “Gensink”), and Dorothy Whipp (hereinafter “Whipp”) over a period of time from the late 1980s until 1996. 13 This Court referred the complaint to Judge Patrick L. Woodward of the Circuit Court for Montgomery County for a hearing to determine findings of fact and conclusions of law pursuant to Maryland Rule 16-709(b). The hearing before Judge Woodward was held on November 20 21, 2000, with closing arguments on June 1, 2001.

Bar Counsel called as witnesses, Steve Kessell and David Grove (two of Snyder’s former associates at Snyder & Poole, PA), Cynthia Miles (former bookkeeper at Snyder & Poole, PA), Dorothy Whipp (former client), Scott Schubel (opposing counsel in litigation against David Royer which was handled by Snyder), and John Rebum (investigator for the Attorney Grievance Commission), as well as Snyder as an adverse ²⁵² witness. Snyder’s defense to the action consisted of presenting his own testimony, and that of his ex-wife, Lori Snyder, who served in an administrative capacity at Snyder & Poole, P.A., and as principal administrator in Snyder’s successor law firm, Snyder, Attorneys at Law. Judge Woodward found by clear and convincing evidence that Snyder’s acts and omissions constituted violations of Rules 1.1, 1.3, 1.4, 1.5(a), 1.7(b) and (c), 1.8(a), 1.15(a), and 8.4(c) and (d) of the MRPC, and former Rules BU4, BU7, and BU9, all of which was alleged by the Attorney Grievance Commission. The Attorney Grievance Commission took no exceptions to Judge Woodward’s findings of fact and conclusions of law, and recommended Snyder’s disbarment.

Snyder took six exceptions to Judge Woodward’s findings of fact. Respondent’s exceptions were as follows: 1. As to Complaint of Dade Royer: the Petitioner failed to take adequate steps to secure Complainant’s appearance at trial and it was error to allow his inquiry panel testimony to be introduced since the Court was unable to observe his demeanor, credibility and Respondent was unable to cross examine Complainant. 2. As to Marah Gensink: the Petitioner has never secured her testimony at any hearing in this matter and it is error to make any findings of fact against Respondent when he has been unable to have the opportunity to cross examine her and the Court has relied solely on “hearsay” evidence and testimony of Respondent. 3.

As to Dorothy Whipp: there is no evidence to support the finding that Respondent wasn’t prepared and no evidence was propounded that the fee charged was not reasonable and the advice given not appropriate, particularly in light of the ultimate disposition. 4. Respondent further asserts the Court should have found by clear and convincing evidence that fixed fee engagement agreements were the preferred means by which attorneys were to be retained and it was up to the attorney to direct how the fee was to be booked, if otherwise. ²⁵³ 5. Respondent further contends the Court should have found by clear and convincing evidence that the Petitioner did not initiate “any” investigation or inquiry into the Grove/Kessell matters until 1996 and after prior disciplinary action against Respondent ..., resulted in a private reprimand and which emanated out of the same facts and issues from the collapse of the firm in 1992. The Petitioner’s actions herein were tantamount to a “fishing” expedition, followed by a bundling of any and all complaints into this one action against him which was prejudicial and done for the purpose of “loading” up on the Respondent. 6.

Respondent never “misappropriated” any funds of any client. The Respondent always adhered to fixed fee engagement retainers and they were deposited accordingly. Turning now to the merits of the case, we will address, in turn, the separate complaints filed by Snyder’s clients by setting forth Judge Woodward’s findings of fact and conclusions of law, our discussion of the relevant law pertaining to the violations, and conclude with our decision as to the appropriate sanction for Snyder’s professional misconduct. I. Standard of Review.

As the Court of original and complete jurisdiction for attorney disciplinary proceedings in Maryland, we conduct an independent review of the record. See Attorney Grievance Comm’n v. Garland, 345 Md. 383, 392 , 692 A.2d 465, 469 (1997). The hearing judge’s findings of fact will be accepted unless we determine that they are clearly erroneous. See Attorney Grievance Comm’n v. Sachse, 345 Md. 578, 589 , 693 A.2d 806, 811 (1997)(quoting Attorney Grievance Comm’n v. Boyd, 333 Md. 298, 303 , 635 A.2d 382, 384 (1994)).

This is so because the hearing judge is in the best position to evaluate the weight to be accorded to the live testimony and behavior of the witnesses in rendering his/her findings of fact and conclusions of law. See Attorney Grievance Comm’n v. Webster, 348 Md. 662, 675 , 705 A.2d 1135, 1142 (1998). Based upon our independent review of the record in the case sub judice, and for the reasons set forth below, we conclude that ²⁵⁴ there exists clear and convincing evidence to support the hearing judge’s findings of fact and conclusions of law.

II

Misconduct Related to Client Escrow Account The trial court’s consideration of the complaints of David Grove and Bar Counsel consisted of an examination of an allegation of misconduct arising out of Snyder’s operating procedures at his firm concerning the treatment of client funds received by the firm as fixed fees or retainers for legal services. The evidence presented showed that Snyder served as the managing partner at the law firm of Snyder & Poole, P.A. (hereinafter, “the Firm”), from January 1, 1989 until the Firm’s dissolution on December 28, 1992. The Firm’s dissolution followed a year of cash flow problems and multiple resignations of associate attorneys.

Following dissolution of the Firm, Snyder opened his own law office and continued to practice law in a firm called “Snyder, Attorneys at Law.” In his capacity as managing partner at Snyder & Poole, Snyder handled the day-to-day operations of the Firm, established policies and had final authority with regard to the Firm’s escrow account, and along with Lori Snyder, his wife at that time, developed administrative policies and operational procedures for the Firm. One of the Firm’s operating policies consisted of a system whereby the advance fee payments of clients were deposited directly into the Finn’s general operating account, unless the fee payment included court costs. For the latter, the policy was to deposit the payment into the client trust account and immediately transfer the fee portion to the general account. Thus, the fees were immediately paid out to the Finn’s general operating account prior to being earned.

The clients, however, were provided with invoices reflecting incremental deductions against the retainer based upon the hourly billings of the attorneys for work performed on behalf of the clients. Snyder continued to employ these operating procedures at Snyder, Attorneys at Law. On February 19,1993, an involuntary Petition for Bankruptcy was filed by several banks against Snyder and his wife, ²⁵⁵ Lori. Accordingly, the couple’s personal bank accounts were frozen.

In the period from February 23, 1993 to March 9, 1993, Snyder took funds from his personal credit cards and line of credit advances and deposited them into the Snyder, Attorneys at Law client escrow account. Thereafter, Snyder and his wife withdrew the funds from the escrow account for themselves and others. Contemporaneous with Snyder’s laundering of personal funds through the client escrow account, Snyder deposited a check for fees and costs from client Madison Walters in the amount of $2,600 into the Snyder, Attorneys at Law escrow account. Walters’s check, however, was returned due to insufficient funds within six days of its being deposited into the escrow account, and the escrow account was debited for the amount of the check.

Despite his knowledge that Walters’s check had been dishonored, Snyder disbursed $2,300 from the escrow account into his firm’s operating account as the fee for Ms. Walters on March 23, 1993 and thereby created a $2,300 deficit in the firm’s escrow account. In March of 1993, Snyder also received shipments of a powdered drink supplement from Power Shack, for purposes wholly unrelated to his practice of law. 14 Snyder authorized payment for the Power Shack shipments from the firm’s escrow account on more than one occasion, despite the fact that the escrow account contained no funds for that purpose. Thereafter, Snyder replenished the deductions he made from the escrow account for the shipment payments with funds received from a business that purchased the drink supplement from him. The circuit court’s findings regarding these transactions were as follows: ²⁵⁶ A. Findings Based on Testimony of Steven Kessell “Steven C. Kessell, Esquire, worked as an associate attorney for the Firm from its inception until approximately December 11, 1992.

Mr. Kessell had entered into an employment agreement with the Firm whereby he would be paid forty percent (40%) of the first one hundred thousand dollars ($100,000) in fees he generated and forty-five percent (45%) of the amount generated above one hundred thousand dollars ($100,000). “Mr. Kessell interviewed new clients and entered into fee arrangements with those clients on behalf of [t]he Firm. He also set the amount of retainers in cases to be charged on an hourly basis, received those retainers and directed that they be deposited to the trust account. It was the policy of the Firm to treat those advance fee payments as collected revenue for the purpose of determining Mr. Kessell’s salary. Mr. Kessell testified that Madeline Friend, Helen Cain, James Metz, Mary Sue Weber, William McKenzie, Eugene Michels and Michael Wright were all hourly clients who paid retainers that should have been segregated and not charged against until actual services were rendered.

The client ledger cards for Madeline Friend, Helen Cain and James Metz indicate that the retainers for those clients were deposited into the trust account at Mr. Kessell’s direction and within a few days the fee amount was disbursed from the trust account to the Firm’s general account. “When Mr. Kessell left the Firm in December 1992, certain clients, including those clients referred to above, elected to have him take their cases with him and requested that the Firm return any unearned fees. Mr. Kessell received a letter dated February 3, 1993, from Lori Snyder providing a check in the amount of two thousand, six hundred twenty-two dollars ($2,622), representing a return of fees for certain clients who chose to have Mr. Kessell continue to represent them: The check enclosed in that letter was drawn on the Snyder, Attorneys at Law accounts payable account, not an escrow account. The check for two ²⁵⁷ thousand, six hundred twenty-two dollars ($2,622) represented sixty percent (60%) of the actual unearned fees to be refunded to the clients who continued with Mr. Kessell. The Firm had deducted forty percent (40%) because Mr. Kessell had been paid that percentage of those unearned fees when they were transferred to the operating account and treated as collected fees.

Although he disputed the Firm’s deduction of forty percent (40%) of the unearned fees due to be refunded to those clients, Mr. Kessell provided further services at no charge to the clients to make up the forty percent (40%) that was deducted.” B. Findings Based on Testimony of David Grove “David M. Grove, Esquire, was employed by the Firm in March 1992. Mr. Grove entered into an employment agreement which provided that the first year he would be paid a salary of fifty-two thousand dollars ($52,000) and thereafter he would be compensated on the basis of forty percent (40%) of the first one hundred thousand dollars ($100,000) of collected gross revenues generated by him and forty-five percent (45%) of the gross collected revenues in excess of one hundred thousand dollars ($100,000). Mr. Grove interviewed new clients and entered into fee agreements with those clients on behalf of the Firm. Mr. Grove set the amount of retainers on cases to be charged on an hourly basis, received those retainers and turned them over to the office manager for deposit.' Mr. Grove understood that the retainers on hourly cases would be deposited into an account separate from an operating account.

Mr. Grove testified that Edward Flynn, Roma Haddaway, Leslie Mar-ko and Maxie Wilburn were all hourly clients who paid retainers in advance of any work being performed on their cases. John Reburn, the Attorney Grievance Commission Investigator, testified that based upon his review of the Firm’s escrow account records, none of those retainers were deposited into a firm escrow account. Mr. Reburn’s review of the cash received and fees charged journal for the Frederick office of the Firm reflected receipt of the retainer ²⁵⁸ fees for Leslie Marko and Maxie Wilburn and deposit of those fees to the general operating account. “Mr. Grove resigned on December 28, 1992, prior to his one year anniversary and was never paid on a percentage basis. When Mr. Grove left the Firm, certain clients, including those clients referred to above, elected to have him take their cases with him and requested the Firm return any unearned fees. [Snyder’s] successor firm, Snyder, Attorneys at Law, withheld forty percent (40%) of the refunds due each of Mr. Grove’s clients and forwarded the balance to Mr. Grove by check drawn on the accounts payable account despite the fact that Mr. Grove had never been paid on a percentage basis.

Mr. Grove objected and eventually an agreement was reached whereby Mr. Grove would return the funds to Snyder, Attorneys at Law, and checks would be cut directly to the clients by [Snyder’s] firm for the full amount of the refunds due. The funds returned by Mr. Grove were deposited into the Snyder, Attorneys at Law escrow account along with the forty percent (40%) withheld by the Firm. Refund checks were drawn on the Snyder, Attorneys at Law escrow account and sent to Mr. Grove’s clients. A refund check in the amount of four hundred forty-nine dollars and fifty cents ($449.50) was sent to John Winpigler, one of Mr. Grove’s clients.

Mr. Winpigler’s check was returned several times due to insufficient funds in the escrow account. Ultimately the Firm refunded Mr. Winpigler’s fee from a non-escrow account.” C. Findings Based on Testimony of Joseph Filsinger Concerning Snyder’s Representation of Dixie Mill Work Co. “On or about March 15, 1992, Dixie Mill Work Co., Inc., (hereinafter, “Dixie Mill Work”), through Joseph Filsinger, 15 ²⁵⁹ retained [Snyder] regarding that company’s financial problems. Mr. Filsinger testified that [Snyder] was given a retainer of three thousand dollars ($3,000) that was to be charged against on an hourly basis. [Snyder] deposited the three thousand dollars ($3,000) retainer to the Snyder & Poole, P.A. operating account on October 15, 1992. On or about December 10, 1992, [Snyder] was given a check for twelve thousand, five hundred dollars ($12,500), which represented an advance fee plus costs for a potential bankruptcy proceeding on behalf of Dixie Mill Work.

Mr. Filsinger understood that the twelve thousand, five hundred dollars ($12,500) would be placed in an escrow account until a determination was made whether to file a Chapter 11 bankruptcy. “On or about December 11, 1992, the twelve thousand, five hundred dollars ($12,500) was deposited into the Snyder & Poole escrow account. On that same day [Snyder] drew a check in the amount of twelve thousand dollars ($12,000) on the Snyder & Poole escrow account payable to Snyder & Poole, P.A., which check was deposited into the Snyder & Poole operating account. Dixie Mill work was able to work out its financial difficulties and determined it was not necessary to file for bankruptcy. On or about March 19, 1993, Joseph Filsinger, Chairman of the Board of Dixie Mill Work, wrote to [Snyder] requesting the return of the twelve thousand, five hundred dollars ($12,500) advance fee and costs as well as the return of any unearned portion of the initial three thousand dollar ($3,000) retainer. [Snyder] had spent the twelve thousand dollar ($12,000) advance fee and was unable to return those funds to Dixie Mill Work. [Snyder] repaid the twelve thousand, five-hundred dollars ($12,500), plus the unearned portion of the initial retainer, to Dixie Mill Work by monthly installments over the period July 1993 through October 1993.” ²⁶⁰ Based on the aforementioned testimony and evidence, the hearing judge concluded that Snyder violated Rules 1.15(a) and 8.4(c) and (d) of the MRPC and Maryland Rules BU4, BU7 and BU9 by virtue of the methods by which he handled his clients’ advance fee payments and through his misuse of the client escrow account.

Snyder filed two exceptions with regard to his use of the client trust account. He asserts that the hearing judge should have found by clear and convincing evidence that fixed fee agreements were the preferred means by which attorneys were to be retained and that the discretion for handling the fees rested with the individual attorneys. Snyder also excepted to the hearing judge’s finding that he misappropriated client funds. We conclude that the hearing judge’s findings of fact and conclusions of law concerning Snyder’s use of the trust account were not clearly erroneous.

Accordingly, Snyder’s exceptions are overruled. We also find that Snyder violated Rules 1.15(a) and 8.4(c) and (d) of the MRPC and Rules BU7 and BU9 by commingling his personal funds with client funds in the escrow account, using the client escrow account to deliberately conceal personal assets from his creditors, and writing checks from the escrow account for his own personal purposes during the bankruptcy litigation. See Attorney Grievance Comm’n v. Milliken, 348 Md. 486, 517 , 704 A.2d 1225, 1240 (1998). Snyder used the client escrow account as a repository for the personal assets he sought to conceal from his creditors during the pendency of his involuntary bankruptcy.

When Snyder made the cash advances from his credit cards and deposited the funds in his client escrow account, he committed a fraud by improperly representing to his creditors and to the bankruptcy court that the funds were being held in the account for the benefit of a third party and thus, were outside of the bankruptcy proceedings. See Webster, 348 Md. at 677-78 , 705 A.2d at 1142-43 (explaining, “when an account is designated an attorney trust account, inquiry into the source of the funds within the account is irrelevant. Use of the trust account for ²⁶¹ personal purposes while still designated a trust account ... is prohibited”). Snyder’s well-calculated attempt to conceal personal assets in conjunction with the bankruptcy proceedings resulted in the commingling of funds in violation of MRPC 1.15(a) and Rules BU7 and BU9.

It also involved dishonesty, fraud, deceit, misrepresentation and conduct prejudicial to the administration of justice in violation of MRPC 8.4(c) and (d). See Attorney Grievance Comm’n v. Bernstein, 363 Md. 208, 229 , 768 A.2d 607, 618 (2001)(finding that the attorney “willfully misappropriated funds from his client trust account and commingled his personal funds with those of his clients” resulting in his disbarment); Attorney Grievance Comm’n v. Hess, 352 Md. 438, 448 , 722 A.2d 905, 910 (1999)(violation of MRPC 8.4(c) where attorney intentionally and repeatedly inflated billing with regard to one particular client); Attorney Grievance Comm’n v. Bailey, 286 Md. 630, 635-36 , 408 A.2d 1330, 1333 (1979)(stating that if the evidence had shown that Bailey intended “to steal or consciously misappropriate funds,” the Court would have disbarred him). Finally, the client escrow account served as a conduit for Snyder’s outside business venture with Power Shack. By writing unauthorized checks from the escrow account to pay for his shipments of Power Shack drink supplements, Snyder violated Rule BU9.

The parties never argued any issues regarding Snyder’s fourth exception as it relates to violations of Rule BU4 and BU7, concerning the depositing and holding of client funds in trust accounts. Furthermore, the sanction against Snyder remains the same regardless of whether we overrule or sustain his fourth exception. See Hess, 352 Md. at 450 , 722 A.2d at 911 (explaining that consideration of cumulative violations “serves no useful purpose” since it would not bear on the attorney’s other violations and would not affect the sanction to be imposed); Attorney Grievance Comm’n v. Eisenstein, 333 Md. 464, 484 , 635 A.2d 1327, 1336 (1994)(finding that consideration of overlapping violations “does not measurably add to the seriousness of the conduct for purposes of considering the ²⁶² appropriate sanction”). Therefore, we elect not to address Snyder’s fourth exception.

III

Conflict of Interest Violations Due to the similarity of violations involved in Snyder’s representations of Dade Royer and the Maryland Troopers Association, we will address these issues together. With regard to Snyder’s long-standing representation of Dade Roy-er, a client relationship which developed while Snyder worked at Snyder & Poole, P.A. and which went sour during Snyder’s representation of Royer in his subsequent legal practice following dissolution of the Firm, Judge Woodward found: “[Snyder] initially represented Mr. Royer in the 1980’s for the purpose of incorporating American Fitness, Inc., which did business as Fitness Works, a fitness club in Hagers-town. Thereafter, [Snyder’s] firm represented Mr. Royer and his corporation regarding collections work and bonding issues with the State of Maryland. In early 1992, Mr. Royer sought [Snyder’s] advice regarding his financial difficulties and the possibility of filing for bankruptcy and paid [Snyder] a fee.

After his discussions with [Snyder], Mr. Royer began operating under a different corporate name instead of filing for bankruptcy. Mr. Royer moved his fitness club to a new location and the landlord at the old location, Northern International Associates (hereinafter, “Northern”), obtained a judgment in the Circuit Court for Washington County against Mr. Royer and his corporation, American Fitness, Inc., for unpaid rent. “In early 1993, due to continuing financial difficulties, Mr. Royer decided to close the fitness club and again sought [Snyder’s] advice regarding bankruptcy. [Snyder] suggested that, instead of filing for bankruptcy, Mr. Royer and [Snyder] form a new corporation and open a fitness club in a new location. [Snyder] formed a corporation, Family Fitness, Inc., on or about April 2,1993 with forty percent (40%) of the stock going to Mr. Royer, as trustee for his children and forty percent (40%) going to [Snyder], as trustee for his children. The remaining twenty percent (20%) would be ²⁶³ non-voting shares to be sold to investors for one thousand dollars ($1,000) per share. Mr. Royer viewed [Snyder] as his attorney and relied on him in the business transaction the same as he did in the legal representation. [Snyder] did not advise Mr. Royer to seek the advice of independent counsel regarding this business transaction. [Snyder] testified that he told Mr. Royer he should have the agreement reviewed by separate counsel and suggested the name of Mike Thoms.

Mr. Royer denied this and indicated Mike Thoms was an attorney in Pennsylvania with whom he was friendly and had consulted on some matter which he couldn’t recall. “[Snyder] continued to represent Mr. Royer with respect to Northern’s attempt to collect on its judgment despite the fact that conflicts developed between [Snyder] and Mr. Royer over their business endeavor. In early 1994, [Snyder] indicated in correspondence to Mr. Royer his dissatisfaction in Mr. Royer’s management of the fitness club and the desire of the shareholders that Mr. Royer turn in his shares. While representing Mr. Royer, but without consulting him, [Snyder] attempted to negotiate a settlement with Northern’s attorney whereby [Snyder] or another investor would pay to settle the lawsuit in return for Mr. Royer signing over his shares of stock in Family Fitness, Inc. to [Snyder]. On April 28, 1994, [Snyder] wrote to Mr. Royer and Northern’s attorney advising that he did not represent the interest of Mr. Royer individually in the Northern matter.

The letter to Mr. Royer was copied to Steve Pearl, one of the other shareholders in Family Fitness, Inc. “In March 1994, [Snyder] formed a new corporation, Powershack, Inc. He filed Articles of Amendment on or about May 23, 1994, that changed the name to Powershack of Hagerstown, Inc. This corporation took over the Family Fitness operation and effectively forced Mr. Royer out of the business.” Judge Woodward made the following findings of fact with respect to Snyder’s relationship with the MTA: ²⁶⁴ “On or about February 22, 1990, the Firm [Snyder & Poole, PA] was retained by the Maryland Troopers Association (hereinafter, “MTA”) to represent.that association and its members. Beginning in 1991, [Snyder] also offered a prepaid legal services plan and MTA agreed to pay [Snyder] twenty dollars ($20) per member per year for its members to receive discounted legal services. Individual members could elect to pay an additional eighty dollars ($80) a year to receive a fully prepaid legal services plan. “In 1992, MTA purchased two units of interest in a video produced by Snyder Marketing Group, Inc., a business venture controlled and substantially owned by [Snyder], at a cost of five thousand dollars ($5,000) per unit. At a meeting of MTA’s Executive Board on February 18, 1992, [Snyder] advised that this was a no risk investment because if MTA failed to recoup its investment within one year, [Snyder] would refund the money. [Snyder] represented that it was urgent that MTA decide that night whether to make the investment and did not advise MTA to seek the advice of independent counsel before making that decision.

MTA did not recoup its investment and -neither [Snyder] nor Snyder Marketing Group, Inc., returned any funds despite the request of MTA that he do so. On or about February 5, 1993, [Snyder’s] successor law firm, Snyder, Attorneys at Law, was discharged by MTA.” Respondent argues that the hearing judge improperly admitted into evidence Royer’s testimony from the inquiry panel hearing and adopted this testimony in rendering the findings of fact and conclusions of law. Judge Woodward admitted Royer’s testimony from the October 21, 1998 inquiry panel hearing pursuant to Maryland Rule 5-804(a), which states: (a) Definition of unavailability. “Unavailability as a witness” includes situations in which the declarant: (1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement; ²⁶⁵ (2) refuses to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so; (3) testifies to a lack of memory of the subject matter of the declarant’s statement; (4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or (5) is absent from the hearing and the proponent of the statement has been unable to procure the declarant’s attendance (or in the case of a hearsay exception under subsection (b)(2), (3), or (4) of this Rule, the declarant’s attendance or testimony) by process or other reasonable means. At the time of the hearing in the Circuit Court for Montgomery County, Royer no longer lived in Maryland and was not subject to subpoena.

See Bartell v. Bartell, 278 Md. 12, 19 , 357 A.2d 343, 347 (1976)(stating that “the subpoena powers of the State of Maryland stop at the state line”). Furthermore, efforts by Bar Counsel to contact Royer by telephone and mail to procure his appearance at the hearing before Judge Woodward proved unsuccessful. Royer was absent at the hearing in the Circuit Court for Montgomery County and his presence could not be procured by process. Thus, respondent’s exception to the admission in evidence of Royer’s inquiry panel testimony is overruled.

With respect to his representation of clients Royer and the MTA, the hearing judge concluded by clear and convincing evidence that Snyder violated Rules 1.7(b) and (c) and 1.8(a) of the MRPC based upon Snyder’s participation in personal business transactions with his clients while continuing to provide them with legal representation. In Attorney Grievance Comm’n v. Korotki, 318 Md. 646 , 569 A.2d 1224 (1990), we explained: ... to sustain a transaction of advantage to himself with his client, the attorney has the burden of showing, not only that he used no undue influence, but that he gave his client all the information and advice which it would have been his ²⁶⁶ duty to give if he himself had not been interested, and that the transaction was as beneficial to the client as it would have been had the client dealt with a stranger. Id. at 666 , 569 A.2d at 1234 (quoting Etzel v. Duncan, 112 Md. 346, 350-51 , 76 A. 493, 495 (1910)). In his dealings with both Royer and MTA, Snyder engaged in self-dealing in violation of MRPC 1.7(b) and (c) and failed to advise his clients that they should seek the advice of independent counsel in violation of MRPC 1.8(a).

See Attorney Grievance Comm’n v. Johnson, 363 Md. 598, 618-20 , 770 A.2d 130, 142-44 (2001)(finding a clear conflict of interest where attorney simultaneously represented clients in connection with a mortgage foreclosure and entered into a contract of sale to purchase the clients’ home for himself).

IV

Competence, Diligence, Communication, and Excessive Fees Judge Woodward found the following concerning Snyder’s representation of Marah Gensink in 1994 when he was practicing on his own: “In or about August 1994, Ms. Gensink was charged in Allegany County with driving while intoxicated and other motor vehicle violations. Later that month, she was charged with harassment and telephone misuse in the District Court for Washington County. On or about August 28, 1994, Ms. Gensink was