Attorney Grievance v. Silbiger

Attorney Grievance Commission of Maryland v. Clifford Baer Silbiger, Misc. Docket AG No. 57, September Term, 2020, Opinion by Booth, J. ATTORNEY DISCIPLINE – SANCTIONS – DISBARMENT Respondent Clifford Baer Silbiger violated the Maryland Attorneys’ Rules of Professional Conduct 19-301.1 (Competence); 19-301.4 (Communication); 19-301.15 (Safekeeping Property); 19-308.1 (Bar Admission and Disciplinary Matters); 19-308.4(a)–(d) (Misconduct); Rule 19-407 (Attorney Trust Account Record-Keeping); Rule 19-408 (Commingling of Funds); Rule 19-410 (Prohibited Transactions); and the Business Occupations and Professions Article §10-306. Mr. Silbiger’s violations arose from his misappropriation of client and third-party funds; failure to keep the required deposits and balances in his trust account; failure to create and maintain accurate and realistic records of his trust account; improperly commingling his funds with those in his attorney trust account in order to conceal his misconduct; performing prohibited transactions; making disbursements from his client’s settlement funds without the client’s knowledge; making cash disbursements; paying personal expenses from his attorney trust account client funds; initially, knowingly and intentionally holding back information and documentation requested by Bar Counsel; engaging in dishonest conduct; and engaging in conduct that is prejudicial to the administration of justice. Considering the nature of Mr. Silbiger’s misconduct and the various mitigating and aggravating factors present here, the Court of Appeals concluded that disbarment is the appropriate sanction.

Circuit Court for Carroll County Case No.: C-06-CV-20-000424 Argued: March 4, 2022 IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG No. 57 September Term, 2020 ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. CLIFFORD BAER SILBIGER Watts Hotten Booth Biran Gould Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned) McDonald, Robert N. (Senior Judge, Specially Assigned), JJ. Opinion by Booth, J. Harrell, J., joins in judgment only.

Filed: May 26, 2022 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2022-05-26 14:40-04:00 Suzanne C. Johnson, Clerk In this case, we must determine the appropriate sanction to impose for an attorney’s intentional misconduct in connection with activities in which he engaged related to his attorney trust account, including taking cash disbursements, commingling personal funds with client funds, paying personal expenses directly from his attorney trust account, and maintaining negative client-matter balances. The attorney, Respondent, Clifford Baer Silbiger, admits to borrowing funds from his attorney trust account to cover expenses related to his law firm—in essence, taking an interest-free loan from his client without her knowledge or consent. The only issue in dispute is the appropriate sanction to be imposed for the misconduct. Mr. Silbiger has proven considerable mitigating factors, including an unblemished professional record that spans 50 years and an excellent reputation in the legal community.

And he asserts that no client or third party was harmed in connection with the misconduct. In fact, the client was likely not even aware that Mr. Silbiger borrowed from the funds held in trust, which Mr. Silbiger claims that he always intended to repay, and did indeed repay. For the reasons set forth herein, although we have considered the facts and circumstances presented in this case, we do not determine that the circumstances surrounding the misconduct justify a deviation from the sanction of disbarment that is ordinarily warranted when considering misconduct of this nature. I Background A. Procedural Context On December 9, 2020, the Attorney Grievance Commission of Maryland (“Commission”), acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action (“Petition”) against Respondent, Clifford Baer Silbiger.

The Petition alleged that Mr. Silbiger violated the Maryland Attorneys’ Rules of Professional Conduct (“MARPC”)1 in connection with his representation of Shannon Johnson. Specifically, Bar Counsel charged Mr. Silbiger with violating MARPC 19-301.1 (Competence); 19-301.3 (Diligence); 19-301.4(a) and (b) (Communication); 19-301.15(a), (b), and (d) (Safekeeping Property); 19-308.1(b) (Bar Admission and Disciplinary Matters); 19-308.4 (a)–(d) (Misconduct); Maryland Rule 19-404 (Trust Account – Required Deposits)2; Maryland Rule 19-407(a)(2)–(d) (Attorney Trust Account Record-Keeping); Maryland Rule 19- 408(a) (Commingling of Funds); Maryland Rule 19-410(a)–(c) (Prohibited Transactions); and Maryland Code, Business Occupations & Professions Article (“BOP”), § 10-306. Pursuant to Maryland Rule 19-722(a), this Court transmitted the case to the Circuit Court for Carroll County and designated Senior Judge Louis A. Becker, III (“hearing judge”) to conduct an evidentiary hearing and make findings of fact and conclusions of law. The hearing took place on July 7, 2021.

Mr. Silbiger was represented by counsel throughout the hearing. Many of the facts of the case were stipulated to in a Joint Statement 1 Effective July 1, 2016, the Maryland Lawyer’s Rules of Professional Conduct (“MLRPC”) were renamed the Maryland Attorneys’ Rules of Professional Conduct (“MARPC”) and recodified in Title 19 of the Maryland Rules with the term “attorney” substituted for the term “lawyer.” See Maryland Rules 19-300.1 et seq. In an effort to enhance readability, we use abbreviated references to the prior codifications of these rules, which are consistent with the ABA Model Rules on which they are based (i.e., Maryland Rule 19-301.1 will be referred to as Rule 1.1). See ABA Compendium of Professional Responsibility Rules and Standards (Am.

Bar Ass’n 2017). 2 Bar Counsel withdrew its allegation that Mr. Silbiger violated Rule 19-404 (Trust Account – Required Deposits). Thus, the hearing judge did not make conclusions on that allegation. 2 of Stipulated Facts that was submitted at the hearing. An Amended Joint Statement of Stipulated Facts (“Stipulation”) was submitted on August 3, 2021. The hearing judge issued a Memorandum of Findings of Fact and Conclusions of Law, on August 24, 2021, in which he found clear and convincing evidence that Mr. Silbiger violated MARPC 1.1, 1.4, 1.15, 8.1, 8.4(a)–(d), Rule 19-407, Rule 19-408, Rule 19-410, as well as BOP §10-306.3 The hearing judge also made findings of fact related to aggravating and mitigating circumstances for this Court’s consideration in formulating an appropriate sanction.

Neither the Commission nor Mr. Silbiger filed exceptions to any of the hearing judge’s findings of fact or conclusions of law. This Court accepts a hearing judge’s findings as established when no exceptions are filed. Md. Rule 19-740(b)(2)(a). We review the hearing judge’s conclusions of law de novo.

Md. Rule 19-740(b)(1). Furthermore, this Court determines whether clear and convincing evidence establishes that an attorney violated the MARPC. For the reasons set forth below, based on our independent review of the record, we affirm the hearing judge’s legal conclusions on all matters. B. Facts Mr. Silbiger’s Law Practice Mr. Silbiger was admitted to the Bar of Maryland on September 21, 1970.

At all times relevant to this proceeding, Mr. Silbiger was a solo practitioner who maintained an office for the practice of law in Westminster, Maryland. 3 The hearing judge found that the Commission did not meet its burden of proof in establishing a violation of MARPC 1.3. 3 Representation of Shannon Johnson On September 19, 2016, Shannon Johnson and her two minor children were injured in an automobile collision. The other driver was found to be at fault. Ms. Johnson retained Mr. Silbiger to represent her and her children in connection with their claims against the at-fault driver. In November 2018, Mr. Silbiger settled Ms. Johnson’s claims and those of her minor children for a total of $101,000.

At the time of settlement, Ms. Johnson had obligations to pay $7,000 to Dan Tannen for “pre-settlement” funding,4 as well as an outstanding Medicaid lien. On November 21, 2018, Mr. Silbiger deposited the settlement check into his attorney trust account. That same day, he disbursed $1,200 from the settlement funds as a portion of his earned fee. On November 26, Mr. Silbiger made a second disbursement to himself for fees in the amount of $27,466.66.

Several days later, on December 3, Mr. Silbiger issued a check in the amount of $7,000 payable to Mr. Tannen. On December 14, Mr. Silbiger made a partial disbursement of the settlement proceeds to Ms. Johnson in the amount of $16,385.97 but continued to hold back funds pending the resolution of her Medicaid lien. Between December 19, 2018 and January 29, 2019, without Ms. Johnson’s knowledge or permission, Mr. Silbiger knowingly and intentionally used $27,566.38 of her 4 Ms. Johnson had an agreement with Mr. Tannen to reimburse him out of any settlement proceeds she received from her claim. 4 settlement proceeds to pay expenses associated with his law practice, including payroll for his employees, health insurance benefits, and monthly mortgage payments. On January 21, 2019, after receiving confirmation that no additional funds were owed to Medicaid, Mr. Silbiger prepared a settlement sheet and wrote Ms. Johnson a check in the amount of $42,951.50 for the remainder of her settlement funds.

However, because Mr. Silbiger did not have sufficient funds in his attorney trust account to cover the check, he did not deliver the check to Ms. Johnson until January 29, after he had deposited $35,000 of his personal funds into his attorney trust account. At that time, because Mr. Tannen had not cashed the $7,000 check, Mr. Silbiger’s trust obligation remained $49,951.50. On February 4, Ms. Johnson cashed the check for $42,951.50, leaving a balance of $6,714.88 in Mr. Silbiger’s trust account—insufficient funds to cover the trust obligation to Mr. Tannen for his uncashed check in the amount of $7,000. Between February 6 and February 12, Mr. Silbiger made two additional withdrawals from his trust account in checks made payable to himself.

As a result, on February 15, 2019, when Mr. Tannen cashed the $7,000 check, it caused an overdraft in the amount of - $3,985.24 in Mr. Silbiger’s trust account. Mr. Silbiger’s Attorney Trust Account Mr. Silbiger maintained an attorney trust account at PNC Bank during the time relevant to this case. He admits that he made cash disbursements from his attorney trust account, commingled personal funds with client funds, paid personal expenses directly from his attorney trust account, and maintained negative client matter balances. Between 5 September 2018 and December 2020, Mr. Silbiger wrote 11 checks made payable to cash from his trust account, totaling $34,000.

He made another cash withdrawal on November 15, 2019 in the amount of $36,666 for fees earned in another client matter. During the period between December 2018 through March 2019, Mr. Silbiger wrote four checks from his attorney trust account to three different banks for personal expenses totaling $7,391.06. As a result of Mr. Silbiger’s actions, on several occasions between November 18, 2018 and July 29, 2019, the balance in his attorney trust account fell below the amount he was required to maintain in trust for his clients. Based upon these transactions, the hearing judge found that Mr. Silbiger failed to safekeep his clients’ funds in his attorney trust account.

The hearing judge further determined that, although Mr. Silbiger’s attorney trust account was out of balance on several occasions, all funds that were owed to all clients and third parties were received without delay. Bar Counsel’s Investigation On February 22, 2019, Bar Counsel received notice from PNC Bank of the February 15, 2019 overdraft that occurred when Mr. Tannen presented the $7,000 check written to him on Mr. Silbiger’s attorney trust account. That same day, Bar Counsel wrote to Mr. Silbiger, requesting that he explain the reason for the overdraft and provide copies of his client ledgers, deposit slips, cancelled checks, and monthly bank statements from December 2018 through February 2019. Mr. Silbiger responded on March 6, 2019 and explained that the overdraft occurred when funds that should have been deposited into his 6 escrow account were deposited into his regular account in error.5 However, he failed to provide Bar Counsel copies of the documents that had been requested.6 On April 24, 2019, Bar Counsel’s investigator, Charles E. Miller, IV, wrote Mr. Silbiger and again asked that Mr. Silbiger provide the documents requested by Bar Counsel in their February 22, 2019 letter.

In early June 2019, Mr. Silbiger, through counsel, provided the documents Bar Counsel had requested, which included a client ledger for Thomas Riddle with a balance of $31,774.73 and a client ledger for Shannon Johnson with a balance of $5,991.87. Nevertheless, Mr. Silbiger’s trust account reflected a negative balance of -$3,985.24 as of February 15, 2019. Accordingly, the records revealed that Mr. Silbiger failed to maintain accurate records for the receipt, maintenance, and disbursement of funds belonging to clients and third parties. Bar Counsel wrote Mr. Silbiger on July 18, 2019 and requested additional information and records for the period of February 2019 through July 2019, including bank statements, copies of client ledgers, deposit slips, cancelled checks, and monthly bank statements.

On September 6, 2019, Mr. Silbiger, through counsel, responded and admitted that without Ms. Johnson’s knowledge or authorization, he borrowed $35,000 from the Shannon Johnson settlement . . . . In this context, the term “borrowed” means that [he] borrowed funds for his own purposes 5 Mr. Silbiger testified that he became aware of this error on a Friday evening and went to the bank Saturday morning and again, on Monday morning to redeposit a $9,000 fee check into his trust account to satisfy the $7,000 check. 6 Mr. Silbiger testified that he provided the information that he thought would satisfy Bar Counsel’s concern about the negative balance and incorrect deposit related to his attorney trust account. He further testified that he was concerned that providing additional documentation would reveal other items that would be detrimental to him. 7 with the intention of repaying the funds within a short period of time, which he did. The term “borrowed” is not meant to imply that [he] had an agreement with Shannon Johnson with regard to the use of these funds. . . .

The funds from the settlement of Shannon Johnson’s claim that [he] borrowed and repaid were not funds that could have been disbursed to Shannon Johnson at the time the funds were borrowed, as these funds were subject to a claim by a lienholder that was then under negotiation. When the lien was compromised, [he] repaid the funds in full to his trust account, and made prompt and full disbursement of all funds due to his client. [He] always intended to repay the borrowed funds. Shannon Johnson was not harmed. When [he] repaid the loan, he initially, and mistakenly, deposited part of the repayment into the wrong account, which was the direct cause of the negative balance on February 15, 2019.

Evidence and Testimony from the Evidentiary Hearing As stated above, an evidentiary hearing was held on July 7, 2021. The evidence consisted of ten exhibits, including the PNC Bank records pertaining to Mr. Silbiger’s trust account, a summary of the bank records, the Stipulation (in which Mr. Silbiger admitted to the conduct that was the subject of the hearing), and letters exchanged between Mr. Silbiger’s counsel and Bar Counsel. Mr. Silbiger testified and called three character witnesses, each of whom had known Mr. Silbiger both personally and professionally for approximately 25–30 years. Mr. Silbiger testified that he had a thriving law practice until 2018 when he spent a considerable amount of money on marketing and advertising in an effort to compete with larger law firms.

Unfortunately, this investment did not pay off, and his practice began to decline. When Mr. Silbiger’s cash flow diminished, and he was faced with office expenses, payroll, mortgages, and other expenses, he became distressed. He testified that he made the ill-fated decision to borrow funds from his attorney trust account—to “rob Peter to pay Paul”—because “I was so anguished over the fact that I couldn’t satisfy my expenses.” He 8 made this decision despite his testimony that he held a 50% ownership in a marina7 that was doing exceedingly well. In fact, he testified that the marina’s operating account had “an abundance of cash” that was accessible to him “at any time,” and he “always knew that if it came to the point where I had to satisfy the money I took from the trust account, I would always have the wherewithal to pay it back through the marina . . . .” However, his “pride got in the way[,]” and he was too “embarrassed” to ask his partner in the marina if he could take funds from the marina account to meet the commitments and expenses of his law practice.

Being too proud to go to his partner, Mr. Silbiger decided to use funds from his attorney trust account to cover his expenses. Mr. Silbiger asserts that it was never his intent to permanently deprive anyone of their funds and that he always had the ability to repay the borrowed funds. And in fact, he did pay all of it back. Mr. Silbiger also testified concerning the presence of several mitigating factors that we will discuss more fully herein.

In addition to his own testimony, Mr. Silbiger presented three witnesses who testified about his character and reputation. Lance Montour, Esquire testified that he worked for Mr. Silbiger from 1996 through 1999, and since then, they have remained “social friends” and “professional colleagues.” Mr. Montour testified that Mr. Silbiger has a big heart, would reduce his fees when clients could not pay, and treats clients and other attorneys with respect and professionalism. According to Mr. Montour, Mr. Silbiger is trustworthy, honest, a person of integrity, and well-respected in the legal community. Mr. Montour stated that, in his 25 years of professional interactions with Mr. 7 Mr. Silbiger testified that the marina sold in October 2019 for $7.5 million dollars. 9 Silbiger, he was unaware of any other violations of the professional rules of conduct and was certain that Mr. Silbiger’s misconduct here was an isolated incident.

William Finch, Jr., Esquire testified that he has known Mr. Silbiger since the early 1980s. They became acquainted through the Carroll County Bar Association and over the years, have often discussed professional issues relating to cases such as witnesses, experts, and tactical issues. Mr. Finch described Mr. Silbiger as always being “very well prepared” and “very professional, very smooth, and very warm and friendly.” He also testified that he had never observed Mr. Silbiger to be “anything other than trustworthy or a person of integrity[]” and that Mr. Silbiger “enjoys an excellent reputation” in the legal community. Mr. Finch stated that he was surprised to hear about the misconduct charges, which Mr. Silbiger had voluntarily shared with him, which had caused Mr. Silbiger a great deal of anguish.

Mr. Finch stated that Mr. Silbiger had made no effort to try to “justify or mitigate” his wrongdoing. Mr. Finch noted that because Mr. Silbiger has “had a long and honorable career[,]” he hoped that Mr. Silbiger would be given a “second chance,” a chance at “professional redemption.” Judge Joseph Barry Hughes testified that he had known Mr. Silbiger since the early 1980s, prior to Judge Hughes being appointed to the bench. Judge Hughes, initially in his capacity as a colleague and, later, as a judge, described him as being “very professional,” “friendly,” and “extremely competent.” After becoming a judge, his impression of Mr. Silbiger’s preparation and interactions with clients and opposing counsel was that Mr. Silbiger was “[s]uperior” and “in the upper tier of really all of the attorneys that I have dealt with over the years, both on the bench and before that[.]” Judge Hughes described Mr. Silbiger’s reputation among the Carroll County Bar as being “trustworthy” and noted 10 that he “has an excellent reputation in Carroll County . . . .” Judge Hughes testified that he “wouldn’t do this for just anybody[,]” and that it is absolutely essential for both the fact finder and for the Court of Appeals to know the full counter weight against the conduct that [Respondent] has been charged with so that the scales can be true, and that both Judge Becker and the Court of Appeals can make an informed and accurate, and hopefully compassionate, decision. II Violations of the Rules of Professional Conduct Based on the record and the above-summarized findings of fact, the hearing judge concluded, by clear and convincing evidence, that Mr. Silbiger violated MARPC 1.1, 1.4, 1.15, 8.1, 8.4(a)–(d), Md. Rule 19-407, Md. Rule 19-408, Md. Rule 19-410, as well as BOP §10-306.

Neither Mr. Silbiger nor the Commission filed exceptions. Based upon our independent review of the record, we agree with the hearing judge’s conclusions that Bar Counsel established a violation of these rules by clear and convincing evidence. Competence—Failing to Meet Basic Standards (1.1) “An attorney shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Rule 1.1.

The hearing judge concluded that Mr. Silbiger failed to satisfy the standards of competence when he: (1) failed to safekeep client and third-party funds; (2) failed to keep the required deposits and balances in his trust account; (3) failed to keep accurate and realistic records of his trust account; (4) improperly commingled his funds with those of his trust fund; and (5) performed prohibited transactions. Attorney Grievance Comm’n v. Smith, 443 Md. 351, 369 (2015) (citing 11 Attorney Grievance Comm’n v. Mungin, 439 Md. 290, 305 (2014) (“an attorney demonstrates his or her incompetence by failing to properly maintain settlement monies in a trust account resulting in negative balances”)); Attorney Grievance Comm’n v. Blatt, 463 Md. 679, 699 (2019) (“The failure to maintain funds received on behalf of a client in a trust account demonstrates incompetence.”) (citation omitted). We agree with the hearing judge that the record supports clear and convincing evidence that Mr. Silbiger violated Rule 1.1, and that the violations, taken separately or together, constitute a “lack of competence and proficiency in the practice of law, regardless of any intent not to permanently deprive clients of their funds.” Failure to Communicate (1.4) Rule 1.4 provides that: (a) An attorney shall: (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 19- 301.0(f)(1.0), is required by these Rules; (2) keep the client reasonably informed about the status of the matter; (3) promptly comply with reasonable requests for information; and (4) consult with the client about any relevant limitation on the attorney’s conduct when the attorney knows that the client expects assistance not permitted by the Maryland Attorneys’ Rules of Professional Conduct or other law. (b) An attorney shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. 12 The hearing judge concluded that Mr. Silbiger violated Rule 1.4 when—without Ms. Johnson’s knowledge or authorization—he made disbursements from her settlement funds.

These disbursements constituted an intentional misappropriation. Furthermore, Mr. Silbiger failed to inform Ms. Johnson of his misappropriation of her funds. We agree with the hearing judge’s conclusion that Mr. Silbiger violated Rule 1.4. Failure to Safekeep Property (1.15) Rule 1.15(a) provides, in relevant part: (a) An attorney shall hold property of clients or third persons that is in an attorney’s possession in connection with a representation separate from the attorney’s own property.

Funds shall be kept in a separate account maintained pursuant to Title 19, Chapter 400 of the Maryland Rules, and records shall be created and maintained in accordance with the Rules in that Chapter. Other property shall be identified specifically as such and appropriately safeguarded, and records of its receipt and distribution shall be created and maintained. Complete records of the account funds and of other property shall be kept by the attorney and shall be preserved for a period of at least five years after the date the record was created. (b) An attorney may deposit the attorney’s own funds in a client trust account only as permitted by Rule 19-408 (b). *** (d) Upon receiving funds or other property in which a client or third person has an interest, an attorney shall promptly notify the client or third person.

Except as stated in this Rule or otherwise permitted by law or by agreement with the client, an attorney shall deliver promptly to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall render promptly a full accounting regarding such property. This Court has held that “withdrawing funds from a trust account for personal matters also constitutes a violation of Rule 1.15(a).” Attorney Grievance Comm’n v. Bell, 432 Md. 542, 553 (2013). Furthermore, “[t]he mere fact that the balance in an attorney 13 trust account falls below the total amounts held in trust supports a prima facie finding of [a] violation of [Rule 1.15.]” Id. at 552–53 (alteration in original) (quoting Attorney Grievance Comm’n v. Glenn, 341 Md. 448, 472 (1996)). Moreover, “funds shall be kept in a separate account . . . records shall be created and maintained . . . and [c]omplete records of the account funds and of other property shall be kept by the attorney and shall be preserved for a period of at least five years . . . .” Rule 1.15(a).

In Attorney Grievance Comm’n v. Gelb, 440 Md. 312, 325 (2014) this Court held that the attorney’s “lack of proper record-keeping, combined with his mishandling of the funds in his attorney trust account . . . [rose] to a level of incompetent representation in violation of [MARPC 1.1].” The hearing judge found, and Mr. Silbiger admitted, that Mr. Silbiger made cash disbursements and paid personal expenses from his attorney trust account. In conjunction with these actions, he wrote checks from his attorney trust account to Sandy Spring Bank, First National Bank, and Bank of Glen Burnie. These disbursements were the cause of the negative balance in his attorney trust account. Additionally, Mr. Silbiger commingled his personal funds with client funds and failed to create and maintain records in accordance with Maryland Rule 19-407.

Mr. Silbiger asserts that he “always intended to repay the ‘borrowed’ funds[,]” and that Ms. Johnson “was not harmed.” This Court has expressed concerns regarding potential injuries to which a violation of Rule 1.15 could lead.8 “We cannot understate the 8 During oral argument, Judge Biran posited the question: “What if he had been hit by a bus in the interim? . . . [H]e thought he could repay with ease, but shouldn’t we be concerned about other 14 importance of holding funds in escrow in accordance with Rule 1.15 and how the Rule reinforces the public’s confidence in our legal system. Escrow accounts serve as sanctuary for client funds from the attorney’s creditors.” Attorney Grievance Comm’n v. Sheridan, 357 Md. 1, 31 (1999). We agree with the hearing judge that Mr. Silbiger violated Rule 1.15 when he made cash disbursements from his trust account, commingled personal funds with client funds, paid personal expenses directly from his attorney trust account, and maintained negative client matter balances. Failure to Respond to Bar Counsel’s Request for Information (8.1) It goes without saying that cooperation with Bar Counsel’s investigation is imperative.

Rule 8.1(b) provides, in part, that an attorney shall not “fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from [a] . . . disciplinary authority[.]” While the information Mr. Silbiger provided to Bar Counsel regarding the error made in depositing funds into the wrong account was true, he acknowledged that he knew that full disclosure of the information requested would expose the extent of his misappropriation. The hearing judge observed that Mr. Silbiger fully responded to Bar cases where people might subjectively believe, of course, I’ll be able to repay, and I want to repay, and then something happens, and they don’t?” 15 Counsel’s second request in a timely manner and “never gave an excuse or prevaricated as to the overall delay.” We agree with the hearing judge that Mr. Silbiger violated Rule 8.1 when, in his initial response to Bar Counsel’s February 22, 2019 letter, he knowingly and intentionally held back information and documentation that he knew would reveal his misconduct. General Misconduct (8.4) Rule 8.4(a) provides that an attorney commits professional misconduct if the attorney “violate[s] or attempt[s] to violate the [MARPC], knowingly assist[s] or induce[s] another to do so, or do so through the acts of another.” As a result of Mr. Silbiger committing other disciplinary rules, the hearing judge found, and we agree, that he violated Rule 8.4(a). Under Rule 8.4(b), it is professional misconduct for an attorney to “commit a criminal act that reflects adversely on the attorney’s honesty, trustworthiness or fitness as an attorney in other respects[.]” The hearing judge found that Mr. Silbiger violated Rule 8.4(b) when he misappropriated client funds and used the funds to pay for personal and business expenses.

The hearing judge further observed that while “no criminal prosecution has been initiated in this matter, sufficient evidence was presented at the hearing to sustain a finding that the underlying wrongful conduct occurred.” In Attorney Grievance Comm’n v. Garland, 345 Md. 383, 395 (1997), this Court stated that “[an] attorney may be disciplined for acts which are criminal but do not result in a criminal conviction if Bar Counsel proves the underlying conduct at the disciplinary hearing.” Thus, as discussed infra, the hearing judge found that with the misappropriation of funds, Mr. Silbiger also 16 violated § 10-306 of the Business Occupations and Professions Article. “A Rule 8.4(b) violation occurs when an attorney willfully violates Section 10-306 of the Business Occupations and Professions Article, which constitutes a criminal misdemeanor.” Attorney Grievance Comm’n v. Karambelas, 473 Md. 134, 167 (2021) (citations omitted). We agree that Mr. Silbiger violated Rule 8.4(b). Rule 8.4(c) provides that an attorney who engages in “conduct involving dishonesty, fraud, deceit or misrepresentation” commits professional misconduct. The hearing judge concluded that Mr. Silbiger violated Rule 8.4(c) by engaging in dishonest conduct, and we agree.

The hearing judge stated that there was clear and convincing evidence that Mr. Silbiger “exhibited a lack of straightforwardness, probity, and integrity in his conduct[,]” and that the misappropriation of client funds was “dishonest and misrepresentative behavior.” See Smith, 443 Md. at 376 (citing Attorney Grievance Comm’n v. Thomas, 440 Md. 523, 555 (2014) (“Attorneys violate [MARPC] 8.4(c) when they . . . conceal material information from their clients, even if they have not misrepresented explicitly the information.”)). We agree that, by his omissions, Mr. Silbiger concealed from Ms. Johnson that he had misappropriated her settlement funds. At oral argument, when asked by the Court if Ms. Johnson “ever found out what he did,” Mr. Silbiger’s counsel indicated that Ms. Johnson likely does not know that Mr. Silbiger “borrowed” her funds, nor did she apparently suffer any harm because Mr. Silbiger replaced the funds, making his trust account whole. The fact that Ms. Johnson may still not be aware of Mr. Silbiger’s misconduct does not excuse it—to the contrary, the continued omission is troubling. 17 The hearing judge concluded that Mr. Silbiger violated Rule 8.4(d) as contended by the Commission.

Under Rule 8.4(d), an attorney commits professional misconduct when he “engage[s] in conduct that is prejudicial to the administration of justice[.]” Mr. Silbiger failed to safekeep and maintain client funds in his attorney trust account, commingled funds, and paid for personal and business expenses from his trust account. “We have long recognized that the failure to maintain settlement funds intact until disbursed—the commingling of personal and client funds—constitutes a violation of [MARPC] 8.4(d).”