Attorney Grievance Commission v. Tanko

BARBERA, J. The Attorney Grievance Commission (“Petitioner”), acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action (“Petition”) against Respondent, attorney Louis P. Tánico. The petition concerns Respondent’s conduct in two separate client matters: the representation of Mr. Howard G. Brown for post-conviction remedies; and the representation of Ms. Jan’e Colahar (a.k.a. Puranda) in an employment compensation case. We transmitted the matter to the Circuit Court for Anne Arundel County and designated the Honorable William C. Mulford, II of the Fifth Judicial Circuit of Maryland to hear the matter and make findings of fact and conclusions of law.

The hearing judge conducted a hearing on September 8 and 12, 2011 and issued his findings and conclusions in a written decision filed in the Circuit Court on October 26, 2011. The hearing judge concluded, by clear and convincing evidence, that Respondent had violated Maryland Lawyers’ Rules of Professional Conduct (“MRPC”) 1.1 (competence), 1.2(a) (scope of representation and allocation of authority between client and lawyer), 1.4(a) and (b) (communication), 1.15(a) and (c) (safekeeping property), 5.5(a), (b)(1) and (b)(2) (unauthorized practice of law), 8.1(b) (bar admission and disciplinary matters), and 8.4(a)-(d) (misconduct). I. The hearing judge first found, as background, that Respondent was admitted to the Maryland Bar in 1989 and to the District of Columbia Bar in 1998. This Court suspended Respondent from the practice of law on April 17, 2009 for sixty days.

Respondent was familiar with the Maryland Rules pertaining to his suspension, but, after the suspension period concluded, he did not apply for reinstatement before he resumed representing clients. “[Respondent] testified that he ²² was unaware that he was required to file a petition for reinstatement pursuant to Maryland Rule 16-781.” Instead, he relied upon what he learned through consultation with other attorneys, the erroneous issuance by the Maryland State Bar Association (“MSBA”) of an identification card; and the indication on the Client Protection Fund website that he was “in good standing.” Respondent never paid the costs assessed to him by this Court pursuant to his suspension order and never confirmed with this Court, the Office of Bar Counsel, or the Attorney Grievance Commission of Maryland his authorization to practice after the suspension period concluded. The hearing judge also found that, once Respondent became aware that he was not authorized to practice, “he sent out letters to his current clients and withdrew from his cases.” He thereafter twice sought nunc pro tunc reinstatement from this Court, both of which requests were denied. The Brown Complaint The hearing judge found that, on September 16, 2008, Respondent entered into a retainer agreement with Mrs. Sharon Gosnell (hereafter Mrs. Gosnell), the mother of Howard G. Brown (hereafter Mr. Brown), for the purpose of “preparing] and filling] a writ of habeas corpus in federal court until ruled on.” 1 Mrs. Gosnell was to pay $5000 for 50 ²³ hours of work, and, if the work were to exceed 50 hours, they would renegotiate the agreement. Mrs. Gosnell’s husband, Richard Gosnell, paid $4000 initially, followed by monthly payments to cover the balance.

Those funds were not deposited into an attorney trust account. Instead, language in the retainer agreement provided as follows: “Client consents to the deposit of any funds paid hereunder into the personal account of the Attorney, rather than a Client Trust Account, pursuant to Rule 1.15 of the Maryland Rules of Professional Conduct and Client acknowledges his/her familiarity with said rule.” The hearing judge credited Mrs. Gosnell’s testimony, as well as that of her husband, that Respondent never explained the significance of that provision or MRPC 1.15, nor did he provide the Gosnells with a copy of that Rule. The hearing judge also credited the testimony of Mr. Brown (and Mrs. Gosnell) that they understood Respondent would “file a federal writ of habeas corpus on behalf of Brown.” In that regard, the hearing judge found that, even though “over the course of representation they did ask [Respondent] to explore other options for Brown, e.g. filing a [Maryland Code (2000, 2009 RepLVol.),] Health General [§] 8-505 Petition For Examination, their goals for the federal writ of habeas corpus remained the same.” In so finding, the hearing judge rejected, albeit implicitly, Respondent’s testimony that he understood his representation of Brown “to include anything that would help Brown get out of jail.” The hearing judge found that Respondent, based on his lack of “prior experience with federal habeas corpus, Health General 8-505 Examinations, and parole hearings” was not competent to represent Mr. Brown in those matters. The judge also found that Respondent never filed a habeas corpus petition, or any other motion, on behalf of Mr. Brown.

Respondent did ²⁴ not maintain time sheets to account for the hours he spent on the matter. The hearing judge nonetheless credited Respondent’s testimony that he worked over fifty hours on the case. The hearing judge found that, over the course of the representation, Respondent met with Mr. Brown in prison and with Mr. and Mrs. Gosnell on three occasions, reviewed Mr. Brown’s file, and researched federal habeas corpus law. We surmise from the hearing judge’s conclusions of law that he also credited Mr. Brown and the Gosnells’ testimony that Respondent was frequently difficult to reach and rarely returned messages, and never informed them that he was terminating his representation (in March 2009) or that he had been suspended from the practice of law on April 17, 2009.

Mr. Brown learned that Respondent was suspended only when Respondent attempted to visit Mr. Brown at Jessup Correctional Institution in December 2009, but was turned away after producing an expired MSBA identification card. After receiving a complaint regarding Respondent’s handling of Mr. Brown’s case, the Attorney Grievance Commission, pursuant to a letter dated February 24, 2010, asked Respondent to provide a copy of Mr. Brown’s client file to Bar Counsel. The Commission sent another letter dated March 9, 2010 regarding this request. An investigator for the Commission met with Respondent at a diner in Annapolis, after having obtained a release from Mr. Brown authorizing Respondent to provide the file to Bar Counsel.

The investigator offered to copy the file in the Commission’s office, to save Respondent the copying costs. Respondent refused at that time to provide the file, notwithstanding the investigator’s reminding Respondent of his obligation to respond to Bar Counsel’s lawful demand for information. Subsequent to this meeting, Respondent sent the Commission a letter requesting prepayment of copying costs in lieu of bringing the file to the Commission’s office for copying. Respondent finally provided the file to Bar Counsel in open court before the hearing judge in September 2011. ²⁵ The hearing judge concluded, based on these factual findings, that Respondent violated MRPC 1.1, 1.2(a), 1.4, 1.15, and 8.1(b).

The Colahar Complaint The hearing judge found that Respondent agreed in July or August 2009 to represent Jan’e Colahar in a lawsuit against her former employer for unpaid wages. Petitioner proffered a retainer agreement that included a signature, purportedly of Ms. Colahar. The agreement contains a provision similar to that in the agreement signed by Mrs. Gosnell in Mr. Brown’s case. Ms. Colahar testified that she did not sign the retainer agreement and did not become aware of its existence until after she terminated Respondent.

The hearing judge ultimately found that Ms. Colahar did not sign the retainer agreement, and he evidently credited her testimony that Respondent did not provide a copy of MRPC 1.15 and never explained the rule to her. The hearing judge found that Ms. Colahar paid Respondent a fixed fee of $1000 to represent in her in the employment suit. Respondent did not deposit that money into a client trust account. The hearing judge further found that Respondent did not explain adequately to Ms. Colahar how he was handling the case, was difficult to reach by telephone and email, and failed to advise her that he would not be requesting interrogatory responses or other discovery from the defendant in her case.

The hearing judge found that, “[u]pon learning of [Respondent’s] decision, ... [Ms. Colahar] requested [Respondent] file such discovery requests, but [Respondent] said it would not be necessary for such a ‘simple case.’ On this matter, [Ms.] Colahar testified she ultimately deferred to [Respondent] for his judgment and trusted him because of his legal expertise.” The hearing judge also noted that Respondent properly presented a settlement offer to Ms. Colahar and abided by her decision to reject the offer. The hearing judge found that, at the first hearing in the Colahar matter, Respondent arrived late and had not timely informed Ms. Colahar before the hearing that she needed to ²⁶ produce her W-2 tax forms. Ms. Colahar terminated Respondent at some point thereafter because she believed Respondent was not acting in her best interests. Respondent never informed Ms. Colahar that he had been suspended from practice on April 17, 2009 or that he remained unauthorized to practice.

Based on these factual findings, the hearing judge concluded that Respondent’s conduct in the Colahar matter constituted violations of MRPC 1.1,1.2(a), 1.4, and 1.15. The hearing judge further concluded that Respondent had violated MRPC 5.5(a) and (b) and 8.4 based on his conduct in both the Brown and Colahar matters. Mitigation With respect to mitigation, the hearing judge found that Respondent exercised “good faith efforts to ensure he was in good standing,” had a “good faith belief he was still licensed, and ... promptly] returned] ... his MSBA card upon discovery it was expired.” Specifically, the hearing judge found that Respondent “made various efforts upon expiration of the sixty (60) day suspension in order to determine that he was authorized to practice law.” Such efforts included “applying] for a new MSBA card[,] ... consulting] with other attorneys as to the process of becoming reauthorized to practice law upon completing his suspension period[,] ... [and] checking] his status on the Client Protection Fund website.” The hearing judge concluded that these efforts demonstrated that “[Respondent] did not believe he had to take further steps, including applying for reinstatement, before resuming the practice of law.” The hearing judge further found that Respondent “did not intend to misrepresent his clients or the court(s), or deceive clients into believing he was authorized to practice law when in fact he had not been reinstated.” And, “[a]s soon as he realized he was not authorized to practice law, [Respondent] sent out letters to his current clients and withdrew from ²⁷ cases.” The hearing judge found that Respondent “sincerely believes he did not intentionally practice law in violation of the Maryland Rules, even though his conduct was improper,” and he “did not knowingly make a false statement or fail to disclose a fact necessary to correct a misapprehension.” II. A. The Standard of Review “In attorney discipline proceedings, this Court has original and complete jurisdiction and conducts an independent review of the record.” Att’y Grievance Comm’n v. Bleecker, 414 Md. 147, 167 , 994 A.2d 928, 940 (2010) (citations omitted). “We accept a hearing judge’s findings of fact unless we determine that they are clearly erroneous.” Att’y Grievance Comm’n v. Edib, 415 Md. 696, 706 , 4 A.3d 957, 964 (2010) (quoting Att’y Grievance Comm’n v. Guida, 391 Md. 33, 50 , 891 A.2d 1085, 1095 (2006)).

That deference is appropriate because the hearing judge is in a position to assess the demeanor-based credibility of the witnesses. Id. at 707, 4 A.3d at 964 . In that regard, “[t]he hearing judge is permitted to ‘pick and choose which evidence to rely upon’ from a conflicting array when determining findings of fact.” Guida, 391 Md. at 50 , 891 A.2d at 1095 (quoting Att’y Grievance Comm’n v. Fezell, 361 Md. 234, 253 , 760 A.2d 1108, 1118 (2000)). We review de novo the hearing judge’s proposed conclusions of law.

Att’y Grievance Comm’n v. Ugwuonye, 405 Md. 351, 368 , 952 A.2d 226, 236 (2008). In other words, “the ultimate determination ... as to an attorney’s alleged misconduct is reserved for this Court.” Att’y Grievance Comm’n v. Garfield, 369 Md. 85, 97 , 797 A.2d 757, 764 (2002) (quoting Att’y Grievance Comm’n v. Thompson, 367 Md. 315, 322 , 786 A.2d 763, 768 (2001) (alteration in original)). In that regard, we examine the record to ascertain whether there was sufficient evidence to support the hearing judge’s legal conclusions, by a “clear and convincing” standard of proof. Att’y Griev ²⁸ ance Comm’n v. Siskind, 401 Md. 41, 54 , 930 A.2d 328, 335 (2007).

B. Exceptions Both Petitioner and Respondent filed exceptions to the hearing judge’s findings and conclusions. Respondent excepts “to each and every conclusion of law.” Petitioner excepts to the hearing judge’s legal conclusions pertaining to the charged violations of MRPC 5.5 and 8.4, and to certain of the judge’s findings in mitigation. Given the number of exceptions before us, we deem it appropriate to resolve each of them in connection with, and as they relate to, our de novo review of the hearing judge’s conclusions of law on each of the charged rule violations. 1. The Brown Matter MRPC 1.1 — Competence MRPC 1.1 provides: “A lawyer shall provide competent representation to a client.

Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” The hearing judge concluded that Respondent violated this Rule in three ways: first, by undertaking to file (not merely to research the efficacy of filing) a federal habeas corpus petition, without the level of competence needed to handle the matter; second, by failing “to prepare and file a federal writ of habeas corpus, pursuant to a retainer agreement”; and third, by failing “to keep his client(s) reasonably informed and failing to file any other legal documents pertaining to Brown’s case.” Respondent excepts to the hearing judge’s conclusion that he violated MRPC 1.1. He points out the hearing judge’s finding that he “performed substantial labor ... towards the preparation of a habeas corpus petition.” Respondent also insists that “an agreement had been reached between Respondent and Mr. Brown to forgo the filing of the petition (due to likelihood of denial)”; and “[he] was not retained for the specific purpose of preparing a writ of habeas corpus, but to ²⁹ ‘see what can be done’ to secure Mr. Brown’s release from jail.” We overrule this exception. The hearing judge, in reaching the conclusion he did, obviously, albeit implicitly, credited Mr. Brown’s testimony that a federal habeas corpus petition was the initial and continuing goal of the representation. The hearing judge had the prerogative to resolve disputes in the evidence and to rely on Mr. Brown’s version of what the representation entailed.

The hearing judge also considered the retainer agreement reflecting that the representation was for the purpose of preparing and filing a federal habeas corpus petition. The hearing judge’s factual findings are not clearly erroneous; accordingly, we accept them. MRPC 1.1 requires a lawyer to “provide competent representation to a client,” which, in turn, “requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Respondent, by his own admission, was not familiar with the procedural complexities attendant to federal habeas corpus matters when he agreed to file a petition on Mr. Brown’s behalf. Respondent’s self-proclaimed lack of knowledge rendered incompetent his agreeing actually to file a petition, rather than determine preliminarily whether Mr. Brown was eligible even to seek federal habeas corpus relief, much less the likelihood of success. 2 ³⁰ These facts constitute clear and convincing evidence to support a conclusion that Respondent violated MRPC 1.1.

Cf. Ugwuonye, 405 Md. at 369-70 , 952 A.2d at 236-37 (concluding that the respondent violated MRPC 1.1 by failing to decline a case that had no merit); Att’y Grievance Comm’n v. James, 385 Md. 637, 662 , 870 A.2d 229, 244 (2005) (observing that, “even with cursory research, [the respondent] would have found that tort damages are not allowed based upon adultery,” and thereby concluding that the respondent, in agreeing to represent a client in a suit for such damages, failed to provide competent representation). MRPC 1.2(a) — Scope of Representation and Allocation of Authority Between Client and Lawyer The hearing judge concluded that Respondent violated MRPC 1.2(a) because, “[b]y failing to prepare and file a writ of habeas corpus, or file any other documents, regarding any matter or claim on behalf of Brown, ... [Respondent] did not abide by his clients’ decisions concerning the objectives of representation.” Respondent excepts to the hearing judge’s conclusion that his conduct violated 1.2(a) for the same reasons ³¹ he disagreed with respect to the MRPC 1.1 violation. We sustain this exception.

MRPC 1.2(a) 3 requires an attorney to “abide by a client’s decisions concerning the objectives of the representation and, when appropriate, ... [to] consult with the client as to the means by which they are to be pursued.” The first comment to the Rule explains, though, that “a lawyer is not required to pursue objectives or employ means simply because a client may wish that the lawyer do so.” MRPC 1.2 cmt. (1). The hearing judge did not make a finding as to why Respondent did not file the habeas corpus application, or any other motion, particularly material in the matter sub judiee. If there was no good faith basis for filing a subsequent habeas corpus application, see supra note 2, then Mr. Brown’s desire to file the application, alone, would not impose on Respondent that obligation.

Furthermore, the hearing judge’s finding that filing a federal habeas corpus petition was the goal of the representation seems to preclude the judge’s finding that Respondent’s failure to file “any other documents, regarding any matter or claim on behalf of Brown,” was a failure to “abide by his clients’ decisions concerning the objectives of representation.” We conclude, therefore, that there is not clear and convincing evidence that Respondent violated MRPC 1.2(a), in connection with his representation of Mr. Brown. MRPC 1.15 — Safekeeping Property The hearing judge concluded that Respondent violated MRPC 1.15 by depositing the retainer fee Mrs. Gosnell paid ³² (on behalf of Mr. Brown) into Respondent’s operating account instead of a client trust account. Respondent excepts to this conclusion, asserting that he explained to Mrs. Gosnell the pertinent provision in the retainer agreement. We overrule this exception.

The hearing judge was entitled to credit Mrs. Gosnell’s testimony, and, in this regard, his findings were not clearly erroneous. MRPC 1.15 4 requires an attorney to maintain a separate account to safeguard funds of clients or third persons and to deposit unearned fees into the client trust account, “unless the client gives informed consent, confirmed in writing, to a different arrangement.” Informed consent is defined as “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” MRPC 1.0(f). The hearing judge found that the only explanation Respondent gave to Mrs. Gosnell was provided in the retainer agreement: “Client consents to the deposit of any funds paid hereunder into the personal account of the Attorney, rather than a Client Trust Account, pursuant to Rule 1.15 of the Maryland Rules of Professional Conduct and Client acknowledges his/her familiarity with said rule.” This lone ³³ sentence does not include the necessary explanation of the material risks or alternatives and, therefore, does not constitute “informed consent” required by MRPC 1.15. There is clear and convincing evidence that Respondent violated this Rule.

MRPC 14 — Communications The hearing judge concluded that Respondent violated MRPC 1.4 by failing to communicate sufficiently with Mr. Brown and Mrs. Gosnell. Respondent excepts to this conclusion of law on the ground that he did communicate in person and on the telephone and explain the fee deposit provision in the retainer agreement. We overrule this exception. The hearing judge, as was his prerogative, credited the testimony of Mr. Brown and Mrs. Gosnell that Respondent was difficult to reach, did not explain the fee provision to Mrs. Gosnell, and did not keep them informed as to the progress of the case.

The hearing judge did not resolve explicitly, however, the conflicting evidence relating to the substance and circumstances of the communication between Respondent and Mr. Brown regarding the status of the habeas corpus petition, though he found that Respondent visited Mr. Brown in prison two times and attempted a third visit. It appears to us, from the testimony of both Mr. Brown and Respondent, that Respondent indeed explained to Mr. Brown the low likelihood of success of a federal habeas corpus petition. We cannot make our own factual findings in this regard, however. Therefore, the sufficiency of Respondent’s communication to keep Mr. Brown informed of the status of his case plays no role in our independent analysis of whether Respondent violated MRPC 1.4.

MRPC 1.4 5 imposes on an attorney the obligation to “promptly inform the client of any decision or circumstance ³⁴ with respect to which the client’s informed consent ... is required,” keep his or her clients “reasonably informed about the status of the matter,” and “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Respondent did not fail entirely to communicate with Mr. Brown (or Mrs. Gosnell). Still, the facts that were found by the hearing judge reflect that Respondent did not fulfill his ethical obligation. First and foremost, as discussed above, Respondent was required to, but did not, obtain informed consent, pursuant to MRPC 1.15, to deposit the retainer fee into an account other than a client trust account. Moreover, Respondent failed to relay adequately his intention to terminate his representation of Mr. Brown in March 2009, and both Mrs. Gosnell and Mr. Brown believed that the representation was on-going.

Those findings support, by clear and convincing evidence, a violation of MRPC 1.4. Rule 8.1 — Bar Admission and Disciplinary Matters Respondent excepts to the hearing judge’s conclusions that Respondent violated Rule 8.1 by failing to provide to Bar Counsel information regarding Mr. Brown’s complaint and “a complete list of clients whose legal matters had not been concluded in his affidavit pursuant to Maryland Rule 16-760(10)[ 6 ].” He asserts that the hearing judge’s conclusions ³⁵ are “contrary to the evidence.” Respondent asserts, in particular, that “[he] did not fail to provide Mr. Brown’s case file to Bar Counsel.” Respondent notes that he “made the file available” but “he never again heard back from anyone regarding the production of this file.” Respondent also asserts that he did not include Mr. Brown’s name as a client with pending matters because, at the time of Respondent’s suspension, the representation had terminated in March 2009. We overrule this exception insofar as the hearing judge’s conclusion of law is based on Respondent’s knowing refusal to respond timely to Bar Counsel’s request for disclosure of Respondent’s file in the Brown matter. The hearing judge’s pertinent findings that, despite multiple requests, Respondent did not provide Mr. Brown’s file until the September 2011 hearing in this matter are not clearly erroneous.

Accordingly, we accept them. MRPC 8.1(b) 7 prohibits “a lawyer ... in connection with a disciplinary matter” from “failing] to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly failing] to respond to a lawful demand for information from an admissions or disciplin ³⁶ ary authority,” with the exception of information protected by MRPC 1.6. Respondent, despite multiple requests from Bar Counsel, did not provide Mr. Brown’s file until instructed to do so by the hearing judge in open court in September 2011. Once he received authorization from Mr. Brown to release his file, Respondent had no justification for refusing to comply with Bar Counsel’s demand.

Moreover, when Respondent informed Petitioner that copying costs would be prohibitive, Petitioner afforded Respondent the opportunity to deliver the file to the Commission’s office where copying would be completed at no cost to Respondent. Even then, Respondent failed to deliver the information lawfully requested by Petitioner. These facts support, by clear and convincing evidence, the hearing judge’s conclusion that Respondent violated MRPC 8.1(b). We further conclude, however, that Respondent’s failure to include Mr. Brown as a pending client on the list provided, pursuant to Maryland Rule 16-760(c)(4), does not constitute a violation of MRPC 8.1.

To be sure, Respondent did not include Mr. Brown’s name as a pending client. But the findings of the hearing judge suggest that Respondent believed the attorney-client relationship with Mr. Brown had terminated in March 2009. Therefore, Respondent did not know, as required by MRPC 8.1(b), that “a misapprehension had arisen” and therefore did not “knowingly” fail to include Mr. Brown as a pending client. 2. The Colahar matter MRPC 1.1 — Competence The hearing judge concluded that Respondent violated Rule 1.1 “by failing to keep Colahar reasonably informed about the status of her case, failing to explain the cause of action to her, and failing to file interrogatory and discovery requests during the discovery period” and because Colahar did not sign the retainer and Respondent never obtained Colahar’s consent “to allowing Tanko to deposit the unpaid attorney fees into his personal account.” Respondent excepts ³⁷ to both the findings that underpin the judge’s legal conclusion and the legal conclusion itself.

We sustain this exception. The record does not support the hearing judge’s findings that Respondent failed to keep Ms. Colahar informed and explain the cause of action to her. The hearing judge evidently credited Ms. Colahar’s testimony. Yet, her testimony, at best, expresses dissatisfaction with the end result of her case and frustration generally with the litigation and the weaknesses of her case.

That testimony is not clear and convincing evidence that Respondent lacked, or failed to apply, the level of skill or knowledge required to handle Ms. Colahar’s matter or that he was unprepared. 8 See Att’y Grievance Comm’n v. Briscoe, 357 Md. 554, 564 , 745 A.2d 1037, 1042 (2000) (“[Complainant’s] ‘dissatisfaction’ with respondent’s representation alone does not establish a violation of MRPC 1.2.”). There is clear and convincing evidence, as presented through Petitioner’s exhibits and Ms. Colahar’s testimony, and Respondent’s testimony, supporting that Respondent: filed a complaint on behalf of Ms. Colahar in District Court asserting that she was owed compensation from her employer 9 ; dis ³⁸ cussed with Ms. Colahar the defendant-employer’s interrogatory requests; argued that disclosure of Ms. Colahar’s tax return information was privileged 10 ; and withdrew from her case after she terminated the representation because, according to Ms. Colahar, “he’s not in [her] best interest.” Moreover, Ms. Colahar’s testimony reflects that, although she could not identify the name of the cause of action in the complaint Respondent filed on her behalf, Ms. Colahar understood that the purpose of the lawsuit was to obtain money due her from her employer, which is the allegation in the complaint Respondent filed on her behalf. We also cannot accept the hearing judge’s conclusion that Respondent violated MRPC 1.1 by failing to file discovery. There is no evidence in the record demonstrating that the decision was incompetent, discovery should have been pursued, or the failure to do so was prejudicial to Ms. Colahar’s litigation. ³⁹ Finally, although Respondent’s failure to obtain informed consent may be a basis to conclude that Respondent violated MRPC 1.15, with respect to its provisions on Client Trust Accounts, as discussed infra, that failure does not demonstrate incompetence in handling Ms. Colahar’s dispute with her former employer.

See Att’y Grievance Comm’n v. Robertson, 400 Md. 618, 638 , 929 A.2d 576, 588 (2007) (holding, where attorney failed to withdraw from a pending case at the time of suspension, that, although the conduct indicated a lack of diligence and failure to comply with his obligations pursuant to the suspension, it “[did] not establish a lack of competence to handle a particular matter,” and therefore did not violate MRPC 1.1). MRPC 1.2 — Scope of Representation and Allocation of Authority Between Client and the Lawyer Respondent excepts similarly to the hearing judge’s conclusion that he violated MRPC 1.2(a) by “failing] to consult with Colahar regarding the means of pursuing a claim for unpaid wages, depositing client funds outside of a trust account, and consulting with her about filing discovery requests.” He asserts that Ms. Colahar’s testimony reflects the contrary. For similar reasons as those discussed above, we sustain this exception. There is no support in the record for the hearing judge’s findings that Respondent did not discuss with Ms. Colahar either the cause of action or the discovery requests.

Moreover, the judge’s conclusion that Respondent did not abide by Ms. Colahar’s objectives for the representation is not supported by clear and convincing evidence. To the contrary, Ms. Colahar sought compensation owed to her by her former employer, and that is the relief requested in the complaint Respondent filed on her behalf. And, as we explained supra, Respondent did consult with Ms. Colahar with respect to discovery. Indeed, she testified that, although she disagreed with Respondent’s decision not to request discovery as it was unnecessary, she deferred to his judgment because “he’s the attorney[.] ...

I was following his expertise.” Likewise, ⁴⁰ Respondent’s mishandling of Ms. Colahar’s retainer, although conduct that constitutes a violation of MRPC 1.15, is not in and of itself a violation of MRPC 1.2, regarding the scope of representation and the allocation of authority between attorney and client. MRPC 1.15 — Safekeeping Property Respondent excepts to the hearing judge’s conclusion that he violated Rule 1.15 because, he asserts, the retainer agreement provision reflects informed consent to the deposit arrangement. Further, Respondent rejects the hearing judge’s finding that Ms. Colahar did not actually sign the retainer. We overrule this exception.

The hearing judge evidently did not base his conclusion on whether Ms. Colahar actually signed the retainer agreement, despite his finding that, in fact, she had not signed the document. 11 Instead, the hearing judge noted that “Colahar testified she did not sign this retainer agreement and did not become aware of this document until after she terminated [Respondent’s] representation,” and, “[r]egardless of conflicting testimony about the agreement, it is undisputed [Respondent] did not provide Colahar with a copy of MRPC Rule 1.15 nor did he explain the rule to her.” Ultimately, the hearing judge concluded that, whether or not Ms. Colahar signed the retainer agreement, Respondent’s failure to explain the provision, provide her a copy of Rule 1.15, or explain the rule resulted in Respondent’s failure to obtain Ms. Colahar’s informed consent to the deposit arrangement. The hearing judge was entitled to credit Ms. Colahar’s testimony that Respondent never explained the deposit ar ⁴¹ rangement. Respondent failed to deposit Ms. Colahar’s retainer fee into a trust account before it was earned without explaining the arrangement and the material risks associated with it. Such findings are sufficient to establish a violation of Rule 1.15(a) and (c).

Moreover, as we discussed with respect to Mr. Brown, the deposit provision in the retainer does not constitute informed consent. MRPC 14 — Communications Respondent excepts to the hearing judge’s conclusion that he violated Rule 1.4. His challenge simply cross-references his challenge to the hearing judge’s factual findings that Respondent failed to consult with Ms. Colahar regarding several matters. We have addressed supra these exceptions to the factual findings.

We have rejected the hearing judge’s factual findings with respect to Respondent’s communication as to the nature of the cause of action and his consultation regarding discovery requests because such findings were not based on clear and convincing evidence. We have accepted, as supported by the record, the hearing judge’s findings with respect to Respondent’s failure to communicate regarding the deposit of the retainer funds. Accordingly, we sustain Respondent’s exception with respect to the conclusion that he failed to keep Ms. Colahar adequately informed about the status of her case. Nevertheless, Respondent violated Rule 1.4, by failing to obtain Ms. Colahar’s informed consent to deposit the retainer in Respondent’s personal account.

We therefore overrule Respondent’s exception in this regard. 3. Unauthorized Practice of Law, Misconduct and the Parties’s Related Exceptions We now arrive at the alleged violations regarding unauthorized practice, which relate to both Mr. Brown and Ms. Colahar’s complaints. MRPC 5.5 — Unauthorized Practice of Law Respondent excepts to the healing judge’s “conclu[sion] that Respondent engaged in the unauthorized prac ⁴² tice of law,” arguing that the “conclusion is not supported by the evidence.” He refers us to the proposed findings of fact and conclusions of law he submitted to the hearing judge. He claims that he did not violate Rule 5.5 because, according to his interpretation of the evidence presented, “five agencies indicated that Respondent was authorized to practice law in Maryland and/or actually provided such authorization in the time period subsequent to Respondent’s sixty (60) day suspension.” He refers to the following: the Maryland Judiciary website listing his name; the erroneous renewal of his MSBA card; the Anne Arundel County Sheriffs Department having photographed Respondent to obtain his MSBA card; the Jessup Correctional Institution’s approval of Respondent’s letter requesting an attorney visit; and the Client Protection Fund of the Bar of Maryland listing his name.

The hearing judge found, pertinent to this alleged violation, that this Court suspended Respondent from practice for a sixty-day period beginning April 17, 2009, Att’y Grievance Comm’n, 408 Md. 404, 426 , 969 A.2d 1010, 1024 (2009) (Tanko I); and Respondent failed to apply for reinstatement at the expiration of the sixty-day period before he began representing clients actively. The findings are undisputed and we accept them. MRPC 5.5 12 prohibits an attorney from “practicing] law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction.” The Rule also prohibits “[a] lawyer who is not admitted to practice in this jurisdiction [from] ... establishing] an office or other systematic and continuous ⁴³ presence in this jurisdiction for the practice of law[,]” or “hold[ing] out to the public or otherwise representing] that the lawyer is admitted to practice.” This Court authorizes, or not, any particular attorney to practice law in this State. Respondent’s failure to apply for reinstatement, pursuant to Maryland Rule 16-781, 13 before he engaged in new client matters, forecloses a conclusion that he was authorized to practice.

Moreover, Respondent never paid the fees assessed by this Court pursuant to his suspension and never presented a sufficient reason why he should have been reinstated despite his failure to pay. See Md. Rule 16-781(g) (“The Court may order reinstatement if the petitioner meets each of the following criteria or presents sufficient reasons why the petitioner should nonetheless be reinstated: ... (8) The petitioner has paid all sums previously assessed by order of the Court of Appeals.”). For these reasons, Respondent cannot seek shelter in the fact that he saw his name on the Client Protection Fund Website or that the MSBA (a voluntary membership organization) issued him a renewed membership card.

As it is undisputed that Respondent provided legal representation after the sixty-day suspension period expired without having been reinstated by this Court, Respondent thereby violated MRPC 5.5(a). Respondent’s conduct also violated Rule 5.5(b)(1) and (b)(2). The representation he provided amounted to a “systematic and continuous presence in this ⁴⁴ jurisdiction for the practice of law” and he held “out to the public ... that [he was] admitted to practice in this jurisdiction.” We turn now to Petitioner’s exception pertaining specifically to “the hearing judge’s failure to find that Respondent violated Rule 5.5(a) by practicing law during his sixty (60) day suspension.” 14 (Emphasis added). Though perhaps not explicitly stated in the discussion of those rules, the totality of the hearing judge’s findings and conclusions