Attorney Grievance Commission v. Stinson

PER CURIAM. Pursuant to Maryland Rule 16-751, 1 the Attorney Grievance Commission of Maryland (“Petitioner”), acting through Bar ¹⁵³ Counsel, filed a Petition for Disciplinary or Remedial Action against Katrice Selena Stinson (“Respondent”), a Maryland attorney who alleged she had offices in the State. Petitioner charged that Stinson committed professional misconduct arising out of the fees she charged to two clients, Dr. Rose Merchant and Kara McIntosh. Based on Respondent’s conduct in the Merchant complaint, Petitioner charged Respondent with violating Rules 1.4 (Communication), 2 1.5 (Fees), 3 ¹⁵⁴ 1.15 (Safekeeping Property), 4 1.16 (Declining or Terminating Representation), 5 7.5 (Firm Names and Letterheads), 6 8.1 (Bar ¹⁵⁵ Admission and Disciplinary Matters), 7 and 8.4 (Misconduct) 8 of the Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”).

As a result of the McIntosh complaint, Petitioner charged Respondent with violating Rules 1.5, 1.15,1.16, 7.5, and 8.4. In accordance with Maryland Rule 16-752(a) 9 and 16-757(c), 10 we referred both matters to the Honorable Mi ¹⁵⁶ chele D. Jaklitsch of the Circuit Court for Anne Arundel County to conduct evidentiary hearings and to submit to this Court proposed findings of fact and conclusions of law for each complaint. For the Merchant complaint, Judge Jaklitsch heard evidence over a 2-day period and filed a 25-page opinion in which she made detailed findings of fact and conclusions of law, culminating in a determination that Respondent violated Rules 1.4(b); 1.5(a) and (b); 1.15(a) and (c); 1.16(d); 7.5(b); 8.1(b) and 8.4(c). For the McIntosh complaint, Judge Jaklitsch conducted a two-day evidentiary hearing and filed a 21-page opinion in which she concluded that Respondent violated Rules 1.5(a); 1.15(a), (c) and (d); 1.16(d); 7.5(b) and 8.4(a).

Respondent filed written exceptions to the hearing judge’s findings of fact and conclusions of law in both cases. Bar counsel filed no exceptions in either case. ¹⁵⁵ (c) Findings and Conclusions. The judge shall prepare and file or dictate into the record a statement of the judge’s findings of fact, including findings as to any evidence regarding remedial action, and conclusions of law. If dictated into the record, the statement shall be promptly transcribed.

Unless the time is extended by the Court of Appeals, the written or transcribed statement shall be filed with the clerk responsible for the record no later than 45 days after the ¹⁵⁶ conclusion of the hearing. The clerk shall mail a copy of the statement to each party. FINDINGS OF FACT Merchant Complaint Respondent was admitted to practice law in Maryland on December 16, 1999 and is a solo practitioner who is not admitted to any other state Bar or to any Federal Bar. From June 2008 to the time of her deposition by Bar Counsel on April 28, 2010, Respondent did not maintain an attorney trust account.

On June 3, 2008, Dr. Rose Merchant (“Merchant”) contacted Respondent regarding possible legal representation for two matters. The first involved a potential wrongful termination claim against her former employer, Prince George’s County Department of Corrections. The second involved a possible wrongful arrest claim against Fairfax County, Virginia. During their initial telephone conversation, Respondent and Merchant agreed to meet the next day, June 4, 2008 at 11:00 a.m. at Merchant’s home.

Respondent informed Merchant that this, in person meeting, would be a free initial consultation. ¹⁵⁷ The first one and a half to two hours of the June 4, 2008 consultation focused on Merchant’s two possible lawsuits. The topic of their meeting eventually shifted to discussion of Merchant’s marriage to Raphael Desmond Clark, however. Respondent and Merchant discussed the possibility of ending Merchant’s marriage to Clark. The consultation started around 11:00 a.m., but around 8:00 p.m., Clark returned home from work.

At that time, Respondent instructed Merchant that she would need to pay $7,000.00 “for an engagement and retainer fee.” Respondent did not provide Merchant with a written fee agreement at that time and did not explain the basis of this fee. Before she left the consultation, Merchant presented Respondent with a $7,000.00 check. After leaving Merchant’s home, Respondent deposited the $7,000.00 check via an ATM into a Bank of America account. The account was not an attorney trust account, and at no point was Merchant’s $7,000.00 held in an attorney trust account.

Following the June 4 consultation, Merchant testified that she believed that Respondent was going to provide representation for the employment law matter against Prince George’s County and for a possible divorce or annulment of her marriage. Merchant also understood after the meeting that Respondent would not be providing representation for the wrongful arrest matter. The parties agreed to meet the next day, June 5, 2008, so that Respondent could assist Merchant with filing for a temporary restraining order (“TRO”) against her husband. On June 5, 2008, Respondent and Merchant met at the Courthouse in Upper Marlboro.

Respondent was late to this meeting and was focused on other matters when she did arrive to the courthouse. It was not until 4:30 p.m. that Respondent met with Merchant. By that time, it was too late that day to file the TRO or the divorce/annulment complaint because the courthouse was closing. Respondent and Merchant moved the meeting to a restaurant near the courthouse and discussed some legal issues as well as non-legal matters.

The meeting at the restaurant concluded after about two hours. Respondent did not provide a written fee agreement for Merchant or ¹⁵⁸ inform Merchant about the basis of her fee during this second in-person meeting. On June 6, 2008, Respondent and Merchant talked on the phone and exchanged e-mails about topics related to Merchant’s husband. Merchant was concerned that Clark might have submitted fraudulent credit applications when purchasing two BMWs in both their names.

Respondent drafted a letter to the BMW dealership which stated that Merchant desired to rescind the contracts for purchase of the vehicles. Another letter was drafted to Clark to advise him that the contracts were being rescinded and he needed to deliver the car back to the BMW dealership. The next day, June 7, 2008, Merchant called Respondent to inform her that the dealership was not going to accept possession of the BMW. The hearing judge noted that this conversation between the parties “was terse and limited only to the return of the vehicle.” On June 9, 2008, Merchant called Respondent to inquire about a written fee agreement.

The parties agreed to meet that day at a restaurant in Bethesda, Maryland. At this meeting, Respondent provided Merchant with an “Engagement Fee Agreement,” a client intake form, and a blank EEOC form. Merchant initialed each page of the fee agreement and signed the last page. The Engagement Fee Agreement provides in part: “An engagement fee is a nonrefundable fee paid by the Client for the Attorney’s: (1) willingness to provide legal advice and services to the Client; (2) ensuring her availability to the Client; and (3) willingness and availability to represent the Client, for reasonable fees, in transactions and litigation.” During the two to three hour meeting on June 9, 2008, Merchant filled out the EEOC form while Respondent drafted a Complaint for Annulment.

Although Merchant thought that Respondent was going to provide representation for the annulment matter, Respondent informed her that she would not enter her appearance as counsel and that Merchant would have to file the Complaint pro se. ¹⁵⁹ On June 12, 2008, Merchant went to the Circuit Court for Prince George’s County intending to file the pro se Complaint for Annulment. Prior to filing the Complaint, however, she met with an attorney at the legal services clinic at the courthouse and decided not to file the complaint. Merchant later spoke to another attorney about her legal issues. After these two conversations, Merchant decided she would terminate her attorney-client relationship with Respondent.

Merchant called Respondent on June 13, 2008, to terminate the relationship and to request a refund of at least $5,000.00. Respondent stated that she would not provide any refund because the $5,000.00 was non-refundable and the $2,000.00 retainer had already been spent on billable hours. Respondent also informed Merchant during this conversation that additional money was owed based on the billable hours that Respondent had already spent on Merchant’s cases. According to Respondent, she was terminating the relationship because Merchant was not trustworthy and had “gone behind her back to seek other counsel.” Respondent drafted a letter dated June 13, 2008, to notify Merchant that she was terminating the Engagement Fee Agreement.

Respondent enclosed a “LEGAL SERVICES BILLING SUMMARY” with the letter. Respondent’s billing summary contained charges for 39.5 billable hours for the period June 5 through June 13 at the rate of $335.00 per hour. Respondent claimed that Merchant owed a balance of $11,257.50 after crediting the $2,000.00 retainer. Respondent’s billing included 10.0 hours for the “Intake Meeting” on June 4, 2008.

This was the initial meeting between the parties that Respondent stated would be a tree consultation. The “Client Meetings/Conferences” section of the billing summary also contained a 7.5 hour “Document Prep & Review Mtg.” charge for the June 9 meeting that lasted only 2 to 3 hours. The “Document Preparation and Review” portion of the billing summary contained line items for the Pro-Se Annulment Complaint and the EEOC Charging Document. Respondent billed 1.5 hours for prepa ¹⁶⁰ ration of the EEOC document, notwithstanding that this was a pre-printed form where Merchant filled in the blanks.

Merchant sent a letter dated June 17, 2008, to Respondent to confirm her desire to terminate the attorney-client relationship. Merchant also confirmed her June 13 request for a refund of the $5,000.00 fee. Merchant obtained other counsel to represent her in the annulment process. William C. Johnson, Jr., Esq., (“Johnson”) drafted a Complaint for Annulment and according to the hearing judge, he “used a majority of the averments that Respondent had drafted in her pro se Complaint given to Merchant.” Merchant was granted a Judgment of Annulment by the Circuit Court for Prince George’s County on March 10, 2009.

Respondent’s June 13, 2008, letter and billing summary were both printed on letterhead that contained only a Washington, D.C. address for Respondent without any indication that she was not licensed to practice in the District of Columbia. Later correspondence with Petitioner contained the same address without any note of a jurisdictional limitation. In a January 16, 2009 letter to Petitioner, Respondent wrote that she had two offices in Maryland, but used a District of Columbia post office box for correspondence purposes. Respondent sent an April 2, 2010, letter to the Circuit Court for Anne Arundel County that did indicate that she was only admitted to practice in Maryland.

Respondent did not reply to Petitioner’s January 21, 2009, letter that requested the addresses of her two Maryland offices. She also refused to answer and objected to the same question during her April 2010 deposition by Bar Counsel. McIntosh Complaint Respondent provided Kara McIntosh with her Pre-Paid legal Services business card after meeting at their children’s school sometime prior to October 1, 2008. On October 1, 2008, McIntosh called Respondent to discuss some legal concerns regarding her business activities.

Following this conversation, Respondent faxed McIntosh a “Small Business Client Intake Form” and an “Engagement Fee and Retainer Agreement.” ¹⁶¹ The fee agreement required McIntosh to pay Respondent a $10,000.00 nonrefundable engagement fee and a separate initial retainer fee of $10,000.00. McIntosh received these forms on October 2, 2008, but chose not to employ Respondent because she did not have the necessary funds to pay the two advance fees. On November 5, 2008, the Federal Bureau of Investigation (F.B.I.) executed a federal search warrant at McIntosh’s home. McIntosh emailed Respondent November 10, 2008 and asked to speak to Respondent “right away.” McIntosh and Respondent spoke on the telephone and made arrangements to meet the next day.

On November 12, 2008, Respondent came to McIntosh’s home and presented two separate fee agreements to McIntosh. The first was titled “Engagement Fee Agreement” and the second titled “Retainer Agreement.” Respondent and McIntosh signed both agreements at this meeting. The “Engagement Fee Agreement” required McIntosh to pay Respondent a “nonrefundable” engagement fee of $10,000.00, including an “initial deposit” of $6,000.00 due upon execution of the agreement and the balance of $4,000.00 due “on or before January 1, 2009.” The “Retainer Agreement” provided for an initial retainer fee of $10,000.00, to “be paid by Client no later than February 1, 2008[sic].” This retainer fee would be applied towards future legal services, which were to be billed at the hourly rate of $335.00. During the November 12, 2008 meeting, McIntosh wrote Respondent a check for $6,000.00 to cover the initial deposit for the “Engagement Fee Agreement.” McIntosh requested that Respondent wait to cash the check because she needed to make a deposit into the account.

Respondent said that she wanted her money that day and instructed McIntosh to bring a cashier’s check to a meeting later that day. McIntosh’s business partner was able to obtain a cash advance of $5,000.00 on a credit card and used these funds to purchase a cashier’s check in the same amount made payable to Respondent. Respondent accepted the $5,000.00, but also requested ¹⁶² the balance of her money from McIntosh. Respondent did not deposit the $5,000.00 into an attorney trust account.

Respondent made two phone calls on behalf of McIntosh on November 13, 2008. The first was to Daniel Wortman (“Wort-man”), a special investigator with the Office of the Montgomery County State’s Attorney. The two talked for about five to ten minutes and Wortman advised Respondent that there was “quite a bit of evidence” against McIntosh from an investigation involving mortgage fraud. Respondent did not request a meeting to review any of the evidence.

On that same day, Respondent also contacted Kwame Manley (“Manley”), an Assistant United States Attorney overseeing the federal criminal case. Manley stated that McIntosh was going to be charged with fraud and that her arrest was imminent. Manley discussed the possibility of a plea agreement in which McIntosh would plead guilty and cooperate with the government. In return, the government would make a motion to reduce her sentence.

At the end of this phone call, Respondent agreed to meet Manley at his office. Respondent and McIntosh met at a restaurant that day to discuss what Respondent had learned from Wortman and Manley. Respondent told McIntosh that she had arranged a meeting with Manley on November 14, 2008, to discuss a plea agreement. At the conclusion of the meeting, Respondent told McIntosh that she needed an additional $5,000.00 by 9:00 a.m. the next day to continue the representation.

That next morning, November 14, 2008, McIntosh called Respondent and stated that she could not come up with the $5,000.00. Respondent sent an e-mail at 12:01 p.m. to McIntosh that thanked her “for apprising me this morning that you were unable to secure the funds necessary to retain me to represent you in the matters you have identified.” Respondent also wrote that she “informed Mr. Manley, via voicemail, that I will not be representing you in these matters and that you have indicated to me that you prefer to turn yourself in rather than to have an arrest warrant executed upon you.” Finally, Respondent informed McIntosh that she would be mailing “a refund check ¹⁶³ for any remaining balance from the amount you tendered minus the hours that I have already worked on your matters.” McIntosh replied to this e-mail on November 14, 2008 at 2:14 p.m. acknowledging that Respondent should be compensated for her time, but she asked for the return of “the majority of the engagement fee” and an “itemization” of Respondent’s services. Later that day, McIntosh informed Respondent that she had retained new counsel and requested a refund of “at least $3,000.00” to pay her new attorney. Respondent wrote back that the amount refunded “will not be anywhere near the $3,000.00 you have requested” and that “the Engagement Fee, and all parts thereof, is nonrefundable and I am entitled to compensation for the work that I have done on your behalf.” McIntosh was not able to obtain the funds necessary to pay her new attorney and had to attend a meeting with the F.B.I. on November 18, 2008 without having any counsel present.

McIntosh stated that she “perjured” herself during this meeting. On the same day, a seven count Indictment was returned against McIntosh in the United States District Court for the District of Maryland. After the meeting with the F.B.I., McIntosh was arrested and spent one night in jail. On November 25, 2008, McIntosh again requested a refund from Respondent and an itemization of the hours billed.

Respondent replied the next day and stated that the engagement fee was “nonrefundable.” Respondent did not refund the $5,000.00 and did not provide McIntosh with an itemized billing statement. CONCLUSIONS OF LAW Merchant Complaint Judge Jaklitsch found by clear and convincing evidence that Respondent violated MLRPC 1.4, 1.5, 1.15, 1.16, 7.5, 8.1, and 8.4. As to Rule 1.15, Judge Jaklitsch made the following conclusions of law: ¹⁶⁴ •Respondent has admitted her failure to deposit any of Merchant’s prepaid legal fees, including the $2,000.00 portion Respondent acknowledged to be a “retainer” into an attorney trust account. In fact, Respondent does not maintain such an account.

Without Merchant’s “informed consent, confirmed in wiring [sic], to a different arrangement,” Respondent was required to “deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.” Rule 1.15(c). Respondent’s failure to hold Merchant’s $2,000.00 retainer separate from Respondent’s own property, in a separate account maintained pursuant to Title 16, Chapter 600 of the Maryland Rules, violated Rule 1.15(a). The Court is not persuaded by Respondent’s contention that the retainer already had been earned upon receipt. The time Respondent spent with the client prior to receipt of the retainer was part of the non-billable, free, initial consultation.

Accordingly, this Court concludes Respondent violated Rule 1.15(a) and (c). See Attorney Grievance Commission v. Ugwuonye, 405 Md. 351, 370-71 [ 952 A.2d 226 ] (2008) and cases cited therein. The court next turns to the issue of Respondent’s “nonrefundable” $5000.00 engagement fee. Respondent points out that her contract clearly spells out that the engagement fee is to be “earned upon receipt” and “does not require that any additional legal services be rendered.” Respondent also points out that her Engagement Fee Agreement clearly sets forth that a portion of the engagement fee is non refundable.

Respondent asserts that because the contract was clear and unambiguous, the $5,000.00 fee did not have to placed in an attorney client trust fund since the payment was non-refundable and therefore did not belong to the client. This court rejects Respondent’s contention. In October 1, 1992, a Maryland State Bar Association Ethics Opinion 92-41 interpreted Rule 1.15(a) to require that retainers consisting of advance fees be placed in the attorney’s escrow account until earned. In that same Maryland State Bar Association Ethics Opinion, the Committee ¹⁶⁵ on Ethics also opined that only a true “engagement” fee, i.e. defined as a “retainer paid in order that the attorney is deprived from the right of rendering services for the other party,” if it is reasonable under the dictates of Rule 1.5(a), may be placed in the firm’s general account.

Maryland State Bar Association Ethics Opinion 92-41. In a Maryland Bar Journal Article, author, Melvin Hirshman wrote concerning engagement fees that “[i]n Maryland, we have been advised that in certain counties one spouse will attempt to prevent his/her mate from obtaining representation by arranging initial conferences and thereafter discharging skilled family practitioners. For this reason, those specialists demand what appear to be high — if not exhorbitant [sic] — initial consultation fees.” M. Hisrshman [sic], Aspects of Attorneys’ Fees: Engagement Fee, Non-Refundable Retainer, Limitations on the Ability of Counsel to set a Fee, MARYLAND BAR JOURNAL, Apr. 17, 1984, at 13. See also, Attorney Grievance Commission of Maryland v. Barbara Osborn Kreamer, 404 Md. 282 [ 946 A.2d 500 ] (2008) defining an engagement fee in footnote 16 as ... the same as a general retainer or an “availability fee.” See In re Gray’s Run Technologies, Inc., 217 B.R. 48, 53 (Bankr.M.D.Pa.1997); In re Printing Dimensions, Inc., 153 B.R. 715, 719 (Bankr.D.Md.1993).

In In re Gray’s Run Technologies, Inc., the court described this type of named retainer “as a sum of money paid by a client to secure an attorney’s availability over a given period of time.” 217 B.R. at 53 (quotation and citation omitted). The court continued: “This type of retainer binds a lawyer to represent a particular client while foreclosing that attorney from appearing on behalf of an adverse party. [This] fee is generally considered ‘earned upon receipt’ or ‘non-refundable.’ ” Id. (citations omitted). 404 Md. at 296 [ 946 A.2d 500 ]. Therefore, it is clear that it is the purpose of the “retainer” that determines the type of account it must be placed in. ¹⁶⁶ In the instant case, Respondent was not engaged to prohibit her from appearing on behalf of an adverse party.

In the instant case, the adverse party initially was to be Prince George’s County, Maryland in the discrimination complaint and/or wrongful termination suit. Therefore, the fees were not earned upon receipt. This portion of the fee, representing an advance payment of fees, which had not been earned as of the date of deposit, also had to be placed in an attorney client trust fund account. Therefore, this Court finds there was a clear violation of Rule 1.15(a) and (c) with respect to the entire amount of the funds advanced by Merchant.

MLRPC 1.5 The Court of Appeals of Maryland has recognized that fees charged for which little or no work is performed are unreasonable fees under Rule 1.5(a). Attorney Grievance Commission v. Lawson, 401 Md. 536, 580 [ 933 A.2d 842 ] (2007); Attorney Grievance Commission v. McLaughlin, 372 Md. 467, 501 [ 813 A.2d 1145 ] (2002); Attorney Grievance Commission v. Monfried, 368 Md. 373, 393 [ 794 A.2d 92 ] (2002). In the instant case, from the period of June 4 through June 13, 2008, Respondent did perform some investigation into Merchant’s husband’s background in preparation for preparing the Complaint for Annulment; drafted an incomplete Complaint for an Annulment; wrote two letters on Merchant’s behalf and provided Merchant with a blank EEOC [sic] for her to complete and mail in. Respondent, however, did not file any pleadings with any Court on behalf of Merchant; did not attend any Court proceedings or hearings as the representative of Merchant, or obtain any results for Merchant.

She did not complete the contemplated representation or even approach completion thereof. This court is persuaded by clear and convincing evidence that Respondent performed little work to justify the initial $7000.00 fee, much less the subsequently billed $11,257.50. This court concludes that Respondent violated Rule 1.5(a). ¹⁶⁷ In addition, this Court finds that Respondent violated Rule 1.5(b). At no time during the initial free consultation on June 4, 2008, did Merchant provided Respondent [sic] with the basis or rate of the fee.

Moreover, Respondent did not communicate to the client that there was any time limit on the free initial consultation. Respondent failed to advise Merchant initially, during their first meeting, that the $5000 “engagement fee” meant that it was earned by Respondent on receipt, for no work performed, and that is [sic] would be non-refundable. Respondent did not provided Merchant with a written retainer agreement during their initial meeting or even on the following day. For these reasons, the court is satisfied that there has been a violation of Rule 1.5(b).

Judge Jaklitsch made the following additional conclusions of law regarding Merchant’s complaint: MLRPC 14(b) During and after her initial consultation with Merchant on June 4, 2008, at which time an oral agreement was reached for Respondent to provide legal representation, Respondent failed to explain, to the extent reasonable necessary to permit the client to make informed decisions, that she did not intend to appear as counsel of record in the divorce/annulment proceeding. This Court concludes that Respondent violated Rule 1.4(b). MLRPC 1.16(d) As this Court has concluded that Respondent’s fee was unreasonable, it follows that Respondent violated Rule 1.16(d) when upon termination of the representation, she failed to refund any advance payment that had not been earned. Attorney Grievance Commission v. Ugwuonye, 405 Md. 351, 370-71 [ 952 A.2d 226 ] (2008). ¹⁶⁸ MLRPC 7.5(b) Respondent’s use of law office letterhead showing a Washington D.C. post office box address, without indicating thereon that she was only licensed to practice law in Maryland and not in the District of Columbia, violated Rule 7.5(b).

MLRPC 8.1(b) The court concludes that Respondent, having provided the post office box in Washington D.C. as her only valid mailing address, is presumed to have received mail sent to that address. Therefore, this Court finds that Respondent violated Rule 8.1(b), when she knowingly failed to respond to the lawful demand for information requested in the Assistant Bar Counsel’s January 21, 2009 letter. MLRPC 84(c) This Court is persuaded by clear and convincing evidence that Respondent violated Rule 8.4(c). Respondent retained unearned fees.

McLaughlin, supra, 372 Md. at 502-03 [ 813 A.2d 1145 ]. In addition, Respondent engaged in further conduct involving “dishonesty, fraud, deceit or misrepresentation”, when she falsified her billing statement to include: double billing on June 9 for document preparation; billing 7.5 hours on June 9 for a lunch meeting with the client at a restaurant which lasted only 2 to 3 hours; and billing for 1.5 hours for preparing an EEOC document which the client filled out and completed herself. Respondent’s claim that she had rendered 39.5 hours of billable services within essentially a six day period (June 4, 5, 6, 7, 9 and 13) and that client had an incurred [sic] fees totaling $13,257.50 to which only the $2000.00 retainer had been applied, leaving a balance in excess of $11,000.00 is intentionally dishonest and fraudulent. The hearing judge found several aggravating factors: This court also has reviewed the aggravating factors found in 9.22 of the American Bar Association Standards for Imposing Lawyer Sanctions (1991) quoted in Attorney ¹⁶⁹ Grievance v. Lawson, 401 Md. [at] 582-83 [ 933 A.2d 842 ], which include: (a) prior disciplinary offenses; (b) dishonest or selfish motive; (c) a pattern of misconduct; (d) multiple offenses; (e) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency; (f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process; (g) refusal to acknowledge wrongful nature of conduct; (h) vulnerability of victim; (i) substantial experience in the practice of law; (j) indifference to making restitution.

The court finds factors (d), (e), (g), and (j) to be present in this case. In particular, the court has taken note of Respondent’s refusal to answer questions about the location of her purported Maryland law offices during the deposition taken by Bar Counsel. As in the Lawson case, this court has grave concerns about Respondent’s lack of remorse and her failure to recognize any impropriety in her fee arrangement and handling of client funds paid in advance. Respondent has not returned unearned fees to her client and has not demonstrated contrition.

McIntosh Complaint Judge Jaklitsch found by clear and convincing evidence that Respondent’s conduct in the McIntosh complaint amounted to violations of MLRPC 1.5, 1.15, 1.16, 7.5, and 8.4. With regard to MLRPC 1.5, Judge Jaklitsch stated: Pursuant to Rule 1.5, a lawyer shall not make an agreement for, charge, or collect an unreasonable fee. Respondent made an agreement for a $10,000.00 “nonrefundable engagement fee” to represent McIntosh. In the introductory paragraph of her Engagement Fee Agreement, Respon ¹⁷⁰ dent declared the engagement fee to be “earned upon receipt” and “does not require that any additional legal services be rendered.” Calling a fee “nonrefundable” will not make it so.

See M. Hirshman, Aspects of Attorneys’ Fees: Engagement Fee, Non-Refundable Retainer, Limitations on the Ability of Counsel to Set a Fee, MARYLAND BAR JOURNAL, Apr. 17, 1984 at 17. The fee Respondent sought to charge without having to perform any legal services in return for such payment, in this instance, is unreasonable. The fee sought to be charged was not in fact a true “engagement fee”, which would allow it to be earned upon receipt. See Maryland v. Barbara Osborn Kreamer, 404 Md. 282 [ 946 A.2d 500 ] (2008) defining an engagement fee in footnote 16 as ... the same as a general retainer or an “availability fee”.

See In re Gray’s Run Technologies, Inc., 217 B.R. 48, 53 (Bankr.M.D.Pa.1997); In re Printing Dimensions, Inc., 153 B.R. 715, 719 (Bankr.D.Md.1993). In In re Gray’s Run Technologies, Inc., the court described this type of named retainer “as a sum of money paid by a client to secure an attorney’s availability over a given period of time.” 217 B.R. at 53 (quotation and citation omitted). The court continued: “This type of retainer binds a lawyer to represent a particular client while foreclosing that attorney from appearing on behalf of an adverse party. [This] fee is generally considered ‘earned upon receipt’ or ‘non-refundable.’” Id. (citations omitted). 404 Md. at 296 [ 946 A.2d 500 ].

(Emphasis added.) Similarly, although Respondent had McIntosh certify and agree in the Engagement Fee Agreement and the Retainer Agreement that the fees were in fact reasonable, does not in fact make it so. Respondent attempted to charge a $10,000.00 non-refundable engagement fee and an additional $10,000.00 retainer fee to investigate and ultimately defend McIntosh against a federal indictment, when Respondent lacked even the basic prerequisite of admission to the U.S. District Court for the District of Maryland. Further, there ¹⁷¹ was no evidence that Respondent had the requisite skill to represent McIntosh against a complex federal indictment. Rule 1.5(a)(1).

Respondent, when she initially approached McIntosh, was operating as an “Independent Association, Small Business & Group Specialist” for Pre-paid Legal Services, Inc. (emphasis added). Rule 1.5(a)(7). Although Respondent argued that she could have been admitted to the U.S. District Court by Motion or by pro hac vice, this does not convert the engagement fee and retainer into something reasonable. Under the Retainer Agreement, if Respondent needed to engage the services of co-counsel, she would have “negotiated the billing rates and bill[ed] the Client for the actual amount due to the third parties.” See Retainer Agreement, paragraph C. The $5,000.00 fee that Respondent ultimately collected and retained from McIntosh was unreasonable for the amount of work performed.

The Court of Appeals of Maryland has recognized that fees charged for which little or no work is performed are unreasonable fees under Rule 1.5(a). Attorney Grievance Commission v. Lawson, 401 Md. 536, 580 [ 933 A.2d 842 ] (2007); Attorney Grievance Commission v. McLaughlin, 372 Md. 467, 501 [ 813 A.2d 1145 ] (2002); Attorney Grievance Commission v. Monfried, 368 Md. 373, 393 [ 794 A.2d 92 ] (2002). The representation lasted less than 48 hours, during which Respondent met with the client twice (primarily to discuss Respondent’s fees and the urgency of payment) and made only a few phone calls to law enforcement officials. Clearly, she did not complete the contemplated representation, or even approach completion thereof.

Respondent did provide McIntosh a glimmer of Manley’s opinion of the Government’s case against her. However, Respondent did not review the evidence collected by law enforcement agencies against McIntosh, file a single document on behalf of McIntosh, did not enter her appearance as counsel or go to court with her, and did not obtain any resolution of the criminal charges ultimately filed against McIntosh. In short, Respondent did not earn $5,000.00. By retaining the full amount, notwithstanding ¹⁷² her self-serving designations of the fee as “nonrefundable” and “reasonable”, Respondent charged and collected an unreasonable fee, in violation of Rule 1.5(a).

MLRPC 1.15 Unless the client gives informed consent, confirmed in writing, to a different arrangement,” an attorney must deposit advance fee payments not yet earned into an attorney trust account maintained pursuant to Tile 16, Chapter 600 of the Maryland Rules. Lawson, supra, 401 Md. at 578-79 , 933 A.2d at 867 . McIntosh did not give informed consent, confirmed in writing, exempting Respondent from the safekeeping requirements of Rule 1.15. By failing to deposit McIntosh’s fee payment into a trust account before performing any work, Respondent violated Rule 1.15(a) and (c).

Even if an engagement fee under certain circumstances might be exempt from the safekeeping requirements of Rule 1.15, this is not true in the instant case. The fee charged in this case is not a true “engagement fee.” In addition, Respondent’s own Engagement Fee Agreement supports the conclusions in this case that the $5,000.00 payment received from McIntosh remained client funds to be held in trust. Respondent inserted a provision into the Engagement Fee Agreement, at paragraph H, that the Agreement would not take effect until “clearance of the Engagement fee deposit of $6,000.00 ” (emphasis added). Because McIntosh only gave Respondent a partial deposit of $5,000.00, the Agreement was not yet effective, and Respondent was obligated under Rule 1.15(a) to hold McIntosh’s client funds separate from Respondent’s own property.

Having previously concluded that Respondent did not earn the full $5,000.00 she received from McIntosh, this court concludes that Respondent violated Rule 1.15(d) by not delivering promptly to the client funds that the client was entitled to receive. Respondent also violated Rule 1.15(d) by failing to “render promptly a full accounting ¹⁷³ regarding such property,” i.e., the itemized statement of services requested by McIntosh. MLRPC 1.16(d) As this court as concluded that Respondent’s fee was unreasonable, it follows that Respondent violated Rule 1.16(d) when upon termination of the representation, she failed to refund, despite McIntosh’s request, the unearned portion of the $5,000.00 fee. MLRPC 7.5(b) Respondent’s use of law office letterhead in a letter sent to Bar Counsel showing only a Washington, D.C. post office box address, without indicating thereon that she was only licensed to practice law in Maryland and not in the District of Columbia, violated Rule 7.5(b).

MLRPC 84(a) Finally, based upon the preceding determinations that Respondent violated the Maryland Lawyers’ Rules of Professional Conduct, it is axiomatic that she engaged in professional misconduct in violation of Rule 8.4(a). In addition to the above conclusions of law, Judge Jaklitsch also found several aggravating factors present as a result of Respondent’s conduct in the McIntosh complaint: This court finds factors (d), (g) and (j) to be present in this case. This Court has grave concerns about Respondent’s lack of remorse and her failure to recognize any impropriety in her fee arrangement and handling of client funds paid in advance. Respondent has not made any restitution and has refused to account for the time and work performed on behalf of McIntosh.

Respondent has not demonstrated contrition. STANDARD OF REVIEW AS TO FACTUAL FINDINGS We have stated in numerous cases that, “in reviewing the record we generally will accept the hearing judge’s ¹⁷⁴ findings of fact, unless those findings are clearly erroneous.” Att’y Griev. Comm’n v. Tanko, 408 Md. 404, 418 , 969 A.2d 1010, 1019 (2009); Att’y Griev. Comm’n v. Ugwuonye, 405 Md. 351, 368 , 952 A.2d 226, 235-36 (2008).

We defer to the hearing judge’s assessment of the credibility of witnesses. Att’y Griev. Comm’n v. Zdravkovich, 375 Md. 110, 126 , 825 A.2d 418, 427 (2003). In the “assessment of the credibility of witnesses, the hearing judge is entitled to accept — or reject— all, part, or none of the testimony of any witness, including testimony that was not contradicted by any other witness.” Att’y Griev.

Comm’n v. Walter, 407 Md. 670, 678-79 , 967 A.2d 783, 788 (2009). EXCEPTIONS TO THE FINDINGS OF FACT Merchant Complaint Petitioner did not file any written exceptions to the hearing judge’s findings of fact or conclusions of law. Respondent filed numerous written exceptions to the judge’s findings offact. It would serve no meaningful purpose for ■ us to state verbatim and then to address in detail the multitude of Respondent’s objections to the hearing judge’s factual findings.

Respondent’s objections, to the factual findings, basically, either ignore or overlook our standard of review as stated above or are otherwise without merit. In this case, Respondent has raised 52 exceptions to the hearing judge’s factual findings. For example, her first exception challenges the propriety of the service of process to initiate these disciplinary proceedings. Respondent contends that service of process was invasive and infringed on her privacy and safety because Petitioner abused its access to Judiciary personnel to obtain her confidential address from the Client Protection Fund.

According to Respondent, Petitioner hired an investigator to obtain Respondent’s address and the investigator accessed Respondent’s motor vehicle records. The Record shows that Petitioner attempted for many months to serve Respondent in person or by certified mail. ¹⁷⁵ After several unsuccessful attempts, the hearing judge granted Petitioner’s Motion on January 22, 2010, to “Permit Service Upon Employee Designated by Client Protection Fund.” On January 29, 2010, Janet Moss, serving as an agent for Respondent, was personally served the above mentioned court documents. Respondent’s exception is therefore overruled because it was not clearly erroneous for the hearing judge to find that Petitioner’s efforts at personal service were reasonable and that alternative service was necessary. Further, Respondent excepts to the finding that she did not maintain a trust account.

Respondent ignores the fact that the record clearly shows that she did not maintain such an account. She excepts: to the finding that Merchant discussed •with Respondent over the telephone Merchant’s financial situation; to the finding that Respondent agreed to provide Merchant a free initial consultation; to the finding that Respondent did not communicate to Merchant the basis of the $7000.00 fee that Merchant paid by check on June 4, 2008; to the hearing judge’s failure to state the reasons for Respondent’s failure to provide a written fee agreement at the time of the June 4, 2008, meeting with Merchant; to the hearing judge’s interpretation of language written in the memo field on Merchant’s check in the amount of $7,000.00 paid to Respondent; to the finding that Respondent agreed to represent Merchant in her divorce/annulment proceedings; to the finding that Respondent was late for her meeting on June 5, 2008, with Merchant at the Circuit Court for Prince George’s County and that Respondent’s tardiness prevented her from filing a timely temporary restraining order against Merchant’s husband; to the finding that Respondent and Merchant discussed both legal and no-legal matters during their meeting at Ledo’s Pizza in Upper Marlboro. In addition, Respondent excepts: to the finding that no written fee agreement was provided to Merchant on June 5, 2008, and the failure to find that it was the result of a lack of an available electrical outlet at Ledo’s Pizza which would have accommodated Respondent’s use of a printer; to the finding that as of June 5, 2008, Respondent had not communicated the ¹⁷⁶ basis or rate of her fee to Merchant; to the accuracy of the hearing judge’s finding that one phone conversation and several e-mail exchanges took place between Respondent and Merchant on June 6, 2008; to the failure of the hearing judge to acknowledge why the conversation between Merchant and Respondent on June 7, 2008, might have been “terse”; to the failure of the hearing judge to find that twelve phone calls were made from Merchant to Respondent on June 10, 2008, one phone call was made on June 11, 2008, and seven phone calls were made on June 12; to the finding as to the scheduling of the June 9, 2008, meeting with Merchant at Legal Seafood in Bethesda. Moreover, Respondent excepts: to the finding as to the actual date when the intake form and EEOC complaint form were provided to Merchant; to the finding that Merchant did not know until June 9, 2008, that Respondent would not represent Merchant with regard to the annulment action; to the finding that the meeting on June 9, 2008, lasted only two to three hours; the finding that Merchant requested that Respondent refund the $5,000.00 engagement fee; to the fact that the hearing judge failed to find that Respondent sent Merchant a termination letter dated June 13, 2008 on June 16, 2008; to the absence of the hearing judge finding that Merchant lacked credibility in her testimony; to the finding that Respondent double-billed the client for preparing the “Pro-se Annulment Complaint,” and that Respondent billed the client 1.5 hours for completing the EEOC form when it was Merchant who actually completed the form; to the hearing judge’s failure to quote in her findings the content of Respondent’s entire letter dated January 16, 2009, that was addressed to Bar Counsel or that Respondent would not accept Bar Counsel’s proposal to settle the entire case under the terms of a conditional diversion agreement’; to the hearing judge’s failure to find that Respondent did not receive Bar Counsel’s letter dated January 21, 2009, requesting information from Respondent; to the hearing judge’s failure to acknowledge Respondent’s reasons for refusing to answer questions during her deposition regarding the location of law offices she claimed ¹⁷⁷ to maintain in Maryland; to the finding that the complaint for Annulment drafted by the new attorney for Merchant used a “majority of the averments” from the complaint that Respondent had drafted; to the finding that Raleigh Bynum, Esq. was admitted pro hac vice in the annulment case; to the finding that Merchant was granted a Judgment of Annulment by the Circuit Court; and to the finding that Merchant was a pro se plaintiff in a case pending in a Virginia court.

McIntosh Complaint Similar to the Merchant complaint, Respondent challenges the hearing judge’s factual findings with regard to the evidence supporting the complaint of Kara McIntosh. Respondent filed 20 exceptions to Judge Jaklitsch’s findings of fact. She excepts: to the hearing judge’s finding that Respondent gave McIntosh a business card; to the hearing judge’s finding that McIntosh was involved in several business ventures, but did not find that the business ventures were criminal enterprises and schemes; to the finding that Respondent and McIntosh spoke by phone to discuss McIntosh’s business venture on October 1, 2008; to the finding that McIntosh chose not to employ Respondent because she did not have the funds for the two requested advance fee payments; to the finding that Federal law enforcement authorities had taken over the investigation of McIntosh; to the hearing judge’s finding that there was a phone call between McIntosh and Respondent on November 11, 2008; to the hearing judge’s characterization of the original fee agreement faxed to McIntosh in October 2008 as being “all inclusive”; to the finding that DKR Investments, Inc. was a company formed to pursue McIntosh’s business ventures; and, to the hearing judge’s failure to find that the company was no more than a shell. Further, she excepts to the hearing judge’s finding that when McIntosh issued the $6,000.00 check for the deposit on the engagement fee, she requested that Respondent wait to cash the check so that additional funds could be deposited in the checking account and to the hearing judge’s failure to find