Attorney Grievance v. Sperling

Attorney Grievance Commission v. Samuel Sperling, Miscellaneous Docket AG No. 6, September Term, 2019. Opinion by Biran, J. Attorney Discipline – Competence, Diligence, and Communication with Clients – Conduct Prejudicial to the Administration of Justice – Suspension. A 120-day suspension is the appropriate sanction in a case in which an experienced personal injury attorney demonstrated a lack of competence, diligence, and communication in several instances while representing two individuals as plaintiffs in the same motor vehicle tort case. After moving for and receiving a deferral of dismissal of the clients’ lawsuit, the attorney failed to take further steps to locate a service address for the defendant, leading to the dismissal of the case without prejudice.

The attorney did not tell the clients that he had been unable to serve the defendant and that, as a result, the case was dismissed. In addition, the attorney failed to convey a settlement offer to the clients from the defendant’s insurer. Further, the attorney failed to transmit one client’s medical records to the insurer, which the insurer had asked to review for the purpose of evaluating settlement. Maryland Attorneys’ Rules of Professional Conduct 19-301.1, 19-301.3, 19-301.4(a)(2) and (b), 19-308.4(a) and (d).

Attorney Discipline – Aggravating Factors – Prior Disciplinary Offenses. The Court took judicial notice of the attorney’s prior public reprimand. In addition, the Court rejected the attorney’s argument that his two prior disciplinary offenses could not be considered as aggravating circumstances in this case, because they involved different kinds of misconduct than alleged in this case, and because the sanctions were imposed after the attorney committed the acts that formed the basis for the violations in this case. Attorney Discipline – Collateral Estoppel and Res Judicata – Effect of Grant of Prior Petition for Reinstatement.

When the attorney petitioned for reinstatement to the Bar at the conclusion of his prior 90-day suspension in 2018, Bar Counsel objected to the petition, in part, on the ground that Bar Counsel needed to conduct further investigation of the complaints filed by the two clients in the motor vehicle tort case. In September 2018, this Court granted the attorney’s petition for reinstatement over Bar Counsel’s objections. In this case, the Court held that its prior grant of the attorney’s petition for reinstatement was not a judgment on the merits of the current allegations. Thus, the doctrines of collateral estoppel and res judicata do not preclude the imposition of a sanction in this case.

Attorney Discipline – Mitigating Factors – Timing of Grant of Petition for Reinstatement. The Court held that the 39-day period between the end of the attorney’s prior suspension period and the date of his reinstatement to the Bar was not a mitigating factor. Circuit Court for Baltimore County Case No. C-03-CV-19-002116 Argued: November 5, 2020 IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG No. 6 September Term, 2019 ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. SAMUEL SPERLING Barbera, C.J. McDonald Watts Hotten Getty Booth Biran, JJ.

Opinion by Biran, J. Watts, Getty and Booth, JJ., dissent. Pursuant to Maryland Uniform Electronic Legal Materials Act Filed: March 1, 2021 (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-03-01 13:22-05:00 Suzanne C. Johnson, Clerk Respondent Samuel Sperling operates a solo law practice in Baltimore County, Maryland, known as The Sperling Firm, LLC. On June 11, 2019, the Attorney Grievance Commission of Maryland (“AGC” or the “Commission”), acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action (“PDRA”) against Mr. Sperling, alleging that Mr. Sperling violated several rules of professional conduct.1 Bar Counsel alleged that, in connection with his representation of Ebony Boyd and Darius Bailey in 2016-18 as plaintiffs in the same personal injury matter, Mr. Sperling violated Rule 1.1 (competence); Rule 1.3 (diligence); Rules 1.4(a) and (b) (communication); Rule 1.6 (confidentiality of information); Rule 1.7 (conflict of interest); Rule 8.1(a) (knowing false statement of material fact in a disciplinary matter); and Rules 8.4(a), (c), and (d) (misconduct). Bar Counsel subsequently withdrew the allegation concerning Rule 1.6.

After conducting an evidentiary hearing, the Honorable Jan M. Alexander of the Circuit Court for Baltimore County concluded that Mr. Sperling committed multiple rules violations. Although we shall sustain several of Mr. Sperling’s exceptions to the hearing judge’s findings of fact and conclusions of law, we conclude that Mr. Sperling violated Rules 1.1, 1.3, 1.4(a)(2) and (b), and 8.4(a) and (d). For the reasons discussed below, we shall suspend Mr. Sperling from the practice of law for 120 days. 1 At the beginning of the pertinent time period, these rules were part of the Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) and codified in an appendix to Maryland Rule 16-812. Effective July 1, 2016, the MLRPC were renamed the Maryland Attorneys’ Rules of Professional Conduct (“MARPC”) and recodified in Title 19 of the Maryland Rules.

For ease of reference, we will use the shorter designations of the MLRPC – i.e., Rule 1.1 in lieu of Maryland Rule 19-301.1. See also Md. Rule 19-300.1(22). I Background A. Mr. Sperling’s Prior Professional Discipline From the time Mr. Sperling was admitted to the Maryland Bar in 1996, until he formed his current firm in June 2014, Mr. Sperling worked for law firms owned by his father, Leonard Sperling. The last of these firms was known as The Sperling Law Office, P.C.

(the “Sperling Law Office”). In 2013, this Court indefinitely suspended Leonard Sperling from the practice of law. See AGC v. Sperling, 434 Md. 658 (2013). In 2016, the AGC, acting through Bar Counsel, filed a PDRA against Samuel Sperling and his brother, Jonathan Sperling, relating to professional misconduct that they allegedly committed while working at the Sperling Law Office.

On May 21, 2018, we suspended Samuel Sperling for 90 days. See AGC v. Sperling & Sperling, 459 Md. 194, 281 (2018). Mr. Sperling’s misconduct in that case involved his failure to safeguard funds in an attorney trust account and his failure to supervise Jonathan Sperling – a suspended attorney – at the Sperling Law Office. See id. at 212, 237-40, 244-49 .2 Separately, on June 29, 2018, the AGC issued a public reprimand to Mr. Sperling in connection with his filing of a lawsuit in 2015 against a former client, in violation of Rule 1.7.

The reprimand further recited that Mr. Sperling violated Rule 8.1(b) (knowing failure to respond to lawful demand for information from a disciplinary authority), and that Mr. Sperling’s conduct described in the reprimand also violated Rule 8.4(d). 2 With respect to Jonathan Sperling, we continued the indefinite suspension that we had previously imposed on him in 2013. Sperling & Sperling, 459 Md. at 282 . 2 On August 10, 2018, with his 90-day suspension period almost concluded, Mr. Sperling filed a petition with this Court seeking reinstatement to the Bar of Maryland under Maryland Rule 19-751. By this time, Mr. Bailey and Ms. Boyd had filed complaints against Mr. Sperling with the AGC relating to his representation of them as plaintiffs in a motor vehicle tort case. In his petition for reinstatement, Mr. Sperling disclosed that Bar Counsel had requested he provide responses concerning Mr. Bailey’s and Ms. Boyd’s complaints.

Bar Counsel objected to Mr. Sperling’s petition for reinstatement. In its filing, Bar Counsel asserted that Mr. Sperling had failed to provide information about his attorney trust accounts during the pendency of his suspension. In addition, Bar Counsel stated that Mr. Sperling was the subject of ongoing investigations relating to his representation of Mr. Bailey and Ms. Boyd. Bar Counsel provided the Court with details of what it claimed those investigations had revealed up to that point.

Bar Counsel concluded by stating that additional investigation was necessary with respect to both the attorney trust account issue and the Bailey/Boyd complaints. On September 5, 2018, Mr. Sperling filed a response to Bar Counsel’s objections. On September 28, 2018, without holding a hearing, this Court granted Mr. Sperling’s petition for reinstatement. B. Procedural History of This Case After the AGC filed the current PDRA on June 11, 2019, under Maryland Rule 19-722(a) we designated Judge Alexander to conduct a hearing in accordance with Maryland Rule 19-727 concerning the alleged violations and to provide findings of fact and conclusions of law.

Prior to the evidentiary hearing, Mr. Sperling filed a motion for 3 summary judgment based on the doctrines of collateral estoppel and res judicata. Mr. Sperling contended that this Court previously decided the issues raised by the PDRA when we granted Mr. Sperling’s petition for reinstatement over the objections of Bar Counsel. On January 6, 2020, the circuit court held a hearing on Mr. Sperling’s motion for summary judgment. At the conclusion of the hearing, the court denied the motion for summary judgment from the bench.

The evidentiary hearing concerning the PDRA went forward on January 22 and 23, 2020. Bar Counsel called three witnesses: Ms. Boyd, Mr. Bailey, and Deborah Friend, an employee of Maryland Automobile Insurance Fund (“MAIF”), the insurer of the at-fault driver in the accident, Lauren LaPlante. Mr. Sperling testified in his own defense. After concluding his testimony, Mr. Sperling sought to introduce expert testimony from H. Briggs Bedigian, an experienced Maryland personal injury attorney.

The hearing judge excluded Mr. Bedigian’s testimony, explaining, “I think I have a very good understanding of what happened here.” On April 17, 2020, the hearing judge issued an opinion containing his findings of fact and conclusions of law, as well as findings concerning aggravating and mitigating circumstances. Mr. Sperling filed exceptions to the hearing judge’s findings of fact and conclusions of law and made several other claims of legal error. Mr. Sperling also excepted to the hearing judge’s findings regarding aggravating factors and the hearing judge’s failure to identify several mitigating factors. For its part, Bar Counsel asked us to note the existence of several aggravating factors that the hearing judge did not identify. 4 On November 5, 2020, we heard oral argument regarding these exceptions and the parties’ recommendations as to an appropriate sanction.

C. The Hearing Judge’s Findings of Fact The hearing judge stated his findings of fact as follows: Respondent was admitted to the Bar of the Court of Appeals of Maryland on June 5, 1996. Since admission to the Bar, respondent has engaged in the general practice of law and has been a solo practitioner in Baltimore County, Maryland since 2014. Ebony Boyd, Darius Bailey and Denise Davis were involved in a motor vehicle accident in Baltimore City, Maryland on January 8, 2016. Bailey was the driver of the vehicle in which Boyd and Davis were passengers.

Said vehicle was rear-ended by a vehicle driven by Lauren LaPlante. LaPlante was insured with policy limits of $30,000.00 per person and $60,000.00 per accident, through Maryland Automobile Insurance Fund (MAIF). The accident resulted in minimal damage to the rear of Bailey’s vehicle and all three occupants complained of bodily injuries. Boyd, who was ten weeks pregnant, and Bailey were seen in the emergency room of a local hospital for treatment of their injuries and it was determined that she had suffered a miscarriage.

Boyd and Bailey retained Respondent on January 17, 2016, to represent them in their claims for damages pursuant to the accident. Each executed retainer agreements which provided for Respondent to be paid one- third of any recovery on a contingency basis. They also executed documents allowing for Respondent to receive their health information and to act as their Power of Attorney. There was no discussion of any potential conflict of interest in Respondent’s representation of the parties.

Respondent filed claims with MAIF on behalf of Boyd and Bailey on January 19, 2016. Boyd and Bailey received physical therapy treatment for their injuries through the months of January and February 2016 and notified Respondent when treatment had ended. On October 11, 2016, MAIF offered settlements of $500.00 each to Boyd and Bailey. After discussions with Respondent, both decided to reject the offers.

Respondent filed suit on behalf of Boyd and Bailey in the Circuit Court for Baltimore City on January 8, 5 2017.[3] From February 14, 2017 until July 2, 2017, to no avail, Respondent attempted to perfect service upon LaPlante via certified mail return-receipt requested, and private process server. Unable to obtain service, Respondent filed and was granted a Motion to Defer Dismissal in the expectation that service would be obtained. However, on December 27, 2017, the Circuit Court issued a dismissal of the suit without prejudice as service had not been obtained. Respondent received a ninety-day suspension from the practice [of law] by the Court of Appeals on May 21, 2018.

Attorney Grievance Commission v. Sperling & Sperling, 459 Md. 194 , 185 A.3d. 76 (2018). He advised MAIF of his suspension by way of a letter dated June 1, 2018. He also sent letters to Boyd and Bailey dated June 3, 2018, notifying them of his suspension. The letters characterized their cases as “pending” and made no reference to the dismissal that had been entered by the Circuit Court for Baltimore City.

Boyd and Bailey went to Respondent’s office on June 19, 2018 and retrieved their files discontinuing Respondent’s representation of them. On July 19, 2018, Boyd and Bailey filed complaints against Respondent with the Attorney Grievance Commission.[4] The formal complaints were served on Respondent and written responses were requested. Written responses were filed by Respondent, essentially denying any malpractice. Respondent’s final communication with Boyd and Bailey was via text message on December 31, 2018, advising them that the statute of limitations on their case would expire on January 8, 2019.

Upon hearing, this court finds the testimony of Ebony Boyd to be credible. She testified that she did not recall Respondent explaining the legal process involved in pursuing her claim through litigation or perfecting service against the at-fault driver, LaPlante. She also did not recall Respondent explaining why he demanded $75,000.00 in damages. She did recall that as of April, 2016, her communication with Respondent led her to believe that he was preparing to submit a demand package to MAIF to settle her case.

Boyd sent text messages to Respondent on May 16, 2016 and June 13, 2016, inquiring about the status of her case. She further testified that she engaged in group communications about the case with Boyd and Denise Davis, the other passenger in the vehicle, because they all had a common 3 The hearing judge’s reference here to January 8, 2017 appears to be a typographical error. The complaint was filed on January 31, 2017. 4 Ms. Davis did not file a Bar complaint against Mr. Sperling. Mr. Sperling resumed his representation of Ms. Davis in connection with the LaPlante car accident after he was reinstated to the Bar in September 2018. 6 interest in the outcome.

In fact, a text message exchange between Boyd and Respondent revealed Respondent asking her for Bailey’s phone number, since he had been unable to reach him. Respondent also advised her of a $500.00 settlement offer, which she rejected. She acknowledged that Respondent advised her that he had filed suit on her behalf. As well, she agreed that Respondent discussed with her, a November 20, 2017 meeting with MAIF, through a series of phone calls and text messages from November 22-29, 2017.

Boyd further testified that while Respondent was representing her, he made her aware that he had been suspended from the practice of law in June 2018, and acknowledged receipt of a letter from him informing her thereof. She went on to testify that he advised her of her right to seek new counsel and even provided her with a list of attorneys that he could recommend. However, she decided of her own accord not to proceed any further and authorized Bailey to retrieve her file from Respondent. The court heard the testimony of Darius Bailey and also finds him credible.

Bailey’s testimony was consistent with that of Boyd, in that he communicated with Respondent mainly through text messages and phone calls. He discussed the $500.00 settlement offer with Respondent and agreed that Respondent should try to negotiate for more. Bailey described his phone calls with Respondent as “lots” and agreed that there were dozens of them. Further, he agreed that the calls were always to discuss his case[.] He stated that Respondent either answered his calls or responded promptly, and kept him apprised of the status of his case.

However, he was never informed that MAIF had increased the settlement offer to $750.00. Bailey was aware of Respondent’s suspension from the practice of law, having received a letter from Respondent to that effect. He chose to terminate Respondent’s representation because of it. He knew that he could have taken his case to another lawyer, but decided that he was no longer interested in pursuing the claim.

This court finds credible the testimony of Deborah Friend, a MAIF supervisor who testified as to the communications between Respondent and MAIF relative to the Bailey and Boyd claims. She met with Respondent at MAIF’s office on November 20, 2017 to discuss the claims and verify that all medical bills and other damages were included in his demand package. She was knowledgeable of communications between Respondent and the claim adjuster about settlement discussions, the impact of Boyd’s miscarriage as well as the pending litigation and statute of limitations. Further, she testified that she advised Respondent of the need for Boyd’s 7 medical records relative to her miscarriage and prior pregnancy, for the miscarriage to be considered as damages.

This request was renewed November 29, 2017 by the adjuster. A March 12, 2018 letter from the adjuster, again requested the medical records. According to MAIF records, there was no response from Respondent and the records were never produced. She denied that Respondent requested and was given a current address for service on LaPlante during their November 20, 2017 meeting.

She also testified that it would be contrary to MAIF policy to accept service on behalf of LaPlante. She also verified through records that MAIF communicated an additional offer to Respondent on April 14, 2017, to settle the two claims for $750.00 each. And, that even after the case had been dismissed without prejudice by the Circuit Court for Baltimore City, MAIF’s file remained open as a “still viable claim”. Respondent testified credibly that he met with and was retained by Boyd and Bailey on January 17, 2016, to represent them in their claims for injuries pursuant to a motor vehicle accident.

During his interview, he obtained personal, background and contact information for each client, insurance and other information relative to the at-fault driver, their accounts of, and other information relative to the accident, including photographs of the property damage. He also had them execute a contingent fee retainer agreement and releases for employment and medical information. He explained to them the expected processing of their claims and referred them to a physical therapy provider for treatment of their injuries. His testimony as to maintaining regular contact with them was somewhat supported by phone records, emails and text messages, but revealed significant lapses without explanation.

In two instances, Respondent failed to promptly respond to text messages sent by Boyd on May 16, 2016 and June 3, 2016, requesting updates on the status of her case. He further testified as to his contact with MAIF in the attempt to settle the cases. Some of his testimony was consistent with that of Deborah Friend. Demand letters were sent to MAIF on behalf of both clients.

Emails admitted into evidence reflect ongoing settlement negotiations in September 2016 and again in November 2017. He recommended that Boyd and Bailey reject MAIF’s offer to settle each case for $500 each. Respondent testified that he obtained Boyd’s medical records relative to her miscarriage and prior pregnancy; however, he admitted that he did not submit them to MAIF. The court does not find credible Respondent’s testimony that he requested, and was given a note with LaPlante’s current address by a MAIF representative.

This assertion contradicts the more credible testimony of Friend that such activity would have been documented in the MAIF records, 8 which it was not. Unable to settle the case, Respondent informed Boyd and Bailey that he was filling suit on their behalf in the Circuit Court for Baltimore City. Respondent did not meet with Boyd or Bailey to discuss the contents of the complaint, nor did he send them copies thereof. Respondent testified as to his unsuccessful attempts to obtain service upon LaPlante, first by certified mail and then through private process.

He further testified that he discussed the significance of lack of service with Boyd. This court did not find this aspect of Respondent’s testimony credible, as it was in direct conflict with the testimony of Boyd. For the same reason Respondent’s testimony that he discussed the Notice of Contemplated Dismissal with the clients is not viewed as credible. Respondent did file, and on September 19, 2017, was granted a Motion to Defer Dismissal until November 30, 2017.

When further efforts to accomplish service failed, the complaint was dismissed without prejudice by the Circuit Court on December 27, 2017. Respondent testified that he informed Boyd and Bailey of the dismissal and discussed the meaning and significance with them. Again, this court finds such testimony to be in direct conflict with the credible testimony of Boyd and Bailey that Respondent never advised them of the dismissal and that they were under the impression that the case was active. Despite the dismissal of the case, MAIF continued to contact Respondent in attempts to resolve the matter, but emails, phone calls and voicemails to Respondent on January 9, 2018, March 12, 2018 and May 9, 2018 were not responded to.

Respondent testified that the Court of Appeals imposed a ninety-day suspension on him from the practice of law on May 21, 2018. In compliance therewith, he did mail letters to Boyd and Bailey, advising them of the suspension and offering them the option to either seek new counsel or resume his representation of their “pending” matters after the suspension had been lifted. He also sent a letter to the adjuster at MAIF, notifying her of the suspension and advising that he could take no further action until he had been reinstated to practice law. However, no evidence was presented that he ever notified MAIF that Boyd and Bailey had discontinued his representation of them.

(citations to the record omitted). We will discuss the evidence that the parties introduced at the hearing as necessary below. 9 D. The Hearing Judge’s Conclusions of Law Based on his findings of fact, the hearing judge concluded that Mr. Sperling violated several rules of professional conduct, as summarized below.5 Rule 1.1 – Competence Rule 1.1 states that an attorney must “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 Mr. Sperling violated Rule 1.1 for the same reasons he stated in his opinion with respect to Rules 1.3 and 1.4. Rule 1.3 – Diligence The hearing judge concluded that Mr. Sperling violated Rule 1.3, which requires attorneys to “act with reasonable diligence and promptness in representing a client,” in three instances.

First, after the circuit court granted the motion to defer dismissal, Mr. Sperling took no further steps to locate a service address for Ms. LaPlante, resulting in the circuit court dismissing the case without prejudice on December 27, 2017. 6 Second, Mr. 5 The hearing judge concluded that Mr. Sperling did not violate Rule 1.7, which prohibits conflicts of interest, because the only claim that Ms. Boyd (and Ms. Davis) could bring for damages in connection with the accident was against Ms. LaPlante. Because Ms. Boyd and Ms. Davis had no potential claim against Mr. Bailey, the hearing judge concluded, Mr. Sperling was under no obligation to discuss a potential conflict of interest with the three clients before agreeing to represent them all in pursuing claims against Ms. LaPlante. Bar Counsel has not filed an exception to this conclusion of law. 6 The hearing judge stated that this lack of diligence also demonstrated a lack of competence in violation of Rule 1.1. 10 Sperling never responded to MAIF’s second settlement offer of $750 each for Ms. Boyd and Mr. Bailey, and never communicated that second offer to the clients.7 Third, although Mr. Sperling obtained medical records relating to Ms. Boyd’s prior pregnancy, which MAIF had requested on several occasions, he never provided those records to MAIF for its consideration in evaluating a settlement. Rules 1.4(a) and (b) – Communication The hearing judge concluded that Mr. Sperling violated Rule 1.4, which concerns attorney-client communication,8 in several respects: Respondent never discussed the contents of the complaint with his clients.

He never explained to them why he was seeking damages of $75,000.00. He never showed them the complaint; or provided them a copy thereof. He never discussed the legal process with them. He never advised them that the court had issued a Notice of Contemplated Dismissal due to a lack of service on the Defendant. 7 The hearing judge stated that such inaction also constituted a lack of competence in violation of Rule 1.1. 8 Rule 1.4 provides in pertinent part: (a) An attorney shall: … (2) keep the client reasonably informed about the status of the matter; (b) An attorney shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. 11 The hearing judge found that Mr. Sperling’s failure to communicate MAIF’s second settlement offer to Ms. Boyd and Mr. Bailey also violated Rule 1.4, “depriving them of the opportunity to consider whether to accept or reject the offer.”9 Rule 8.1(a) – Bar Admission and Disciplinary Matters The hearing judge found that Mr. Sperling violated Rule 8.1(a), which prohibits an attorney from “knowingly mak[ing] a false statement of material fact” in connection with a disciplinary matter, when he wrote to Bar Counsel on August 9, 2018, that Ms. Boyd’s and Mr. Bailey’s lawsuit “was in the process of being fully and properly litigated.” The hearing judge concluded that this statement was knowingly false because Mr. Sperling “knew that the case had been dismissed, albeit without prejudice” and because “he knew that he had been discharged by Boyd and Bailey.” In addition, the hearing judge stated that, at the time Mr. Sperling included that statement in his written submission to Bar Counsel, the “case could not be ‘fully and properly litigated’ by Respondent, as he was under suspension.” Rule 8.4 – Misconduct The hearing judge concluded that Mr. Sperling violated Rule 8.4(d), which states that it is “professional misconduct for an attorney to … engage in conduct that is prejudicial to the administration of justice”: Respondent failed to communicate settlement offers to his clients and failed to notify them of the reason that their case had been dismissed.

After his initial attempts were unsuccessful, he showed a lack of interest in procuring service on the Defendant, resulting in the dismissal of the case. Although he 9 The hearing judge stated that this failure also demonstrated a lack of competence in violation of Rule 1.1. 12 had them in his possession, Respondent failed to supply his client’s medical records to MAIF to review in contemplation of settlement. His response to inquiries from his clients and representatives from MAIF can be described as inconsistent, at best. . . . Respondent’s written submission to Bar Counsel that the case was being “fully and properly litigated” was clearly untrue.

In his conclusions of law, the hearing judge did not explicitly discuss Rule 8.4(c),10 which provides that it is professional misconduct for an attorney to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” The PDRA alleged that Mr. Sperling “knowingly and intentionally misrepresented to his clients that the matter was still ‘pending’” in the June 3, 2018 letters. In the course of discussing Rule 8.4(d), the hearing judge concluded that Mr. Sperling’s characterization in his June 3, 2018 letters to Ms. Boyd and Mr. Bailey of their cases as “pending” was not the basis for the finding of a violation: “The court does not find Respondent’s description to his clients that their case was ‘pending’ to be misleading. Despite the fact that the case had been dismissed without prejudice, the evidence revealed that MAIF still considered it to be an open matter, and the statute of limitations had not yet expired.” We interpret this statement also as the hearing judge’s conclusion that Mr. Sperling did not violate Rule 8.4(c) when he described the case as “pending” in his June 3, 2018 letters to Ms. Boyd and Mr. Bailey. 10 The hearing judge also did not explicitly discuss Rule 8.4(a), which provides that it is professional misconduct for an attorney to “violate or attempt to violate the Maryland Attorneys’ Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.” Given that the hearing judge concluded that Mr. Sperling violated several rules of professional conduct, the hearing judge necessarily also concluded that Mr. Sperling violated Rule 8.4(a). 13 However, in the section of his opinion discussing aggravating factors, the hearing judge stated: “The court further finds that Respondent was dishonest by not informing his clients of an increased settlement offer, and that [sic] the reason for the dismissal of their case before the Circuit Court for Baltimore City.” We interpret this statement as the hearing judge’s conclusion that Mr. Sperling violated Rule 8.4(c) when he failed to inform his clients of these matters. E. Aggravating and Mitigating Factors Found by the Hearing Judge The hearing judge found one aggravating factor: prior discipline.

As stated above, we interpret the hearing judge’s statement in the aggravating factors section of his opinion that Mr. Sperling was “dishonest” as the finding of a Rule 8.4(c) violation, not the finding of the aggravating factor of dishonest or selfish motive.11 As for mitigating factors, the hearing judge stated: Nothing in the record suggests that Respondent acted with a selfish motive. In fact, Respondent received no compensation or financial benefit from this case. Through his testimony, Respondent did express remorse for the upset and inconvenience that he has caused his clients. Moreover, the record reflects letters from several religious leaders and members of the community reflecting their admiration and respect for Respondent; as well as the time, charity, and pro bono work that he has contributed. 11 As noted immediately below, the hearing judge found as a mitigating factor the absence of a selfish motive.

The recognized mitigating factor that includes absence of a selfish motive also speaks to the absence of a dishonest motive. See, e.g., AGC v. Conwell, 462 Md. 437 , 472 (2019) (“absence of a dishonest or selfish motive”) (citations omitted). The hearing judge’s explicit reference to Mr. Sperling’s lack of a “selfish motive” in discussing mitigation reinforces for us that the hearing judge did not find the aggravating factor of “a dishonest or selfish motive,” see, e.g., AGC v. Shuler, 443 Md. 494, 506 (2015), but rather mistakenly placed his Rule 8.4(c) conclusion in the section of his opinion discussing aggravating factors. 14 II Discussion A. Collateral Estoppel/Res Judicata Mr. Sperling excepts to the hearing judge’s denial of his motion for summary judgment based on the doctrines of collateral estoppel and res judicata. As Mr. Sperling notes, Bar Counsel raised the Boyd/Bailey issues contained in the current PDRA as part of its objections to Mr. Sperling’s petition for reinstatement.

Mr. Sperling argues that, because this Court granted Mr. Sperling’s petition for reinstatement over Bar Counsel’s objections, the AGC (acting through Bar Counsel) was precluded from pursuing the Boyd/Bailey issues in the PDRA. We disagree. Res judicata, or claim preclusion, “restrains a party from litigating the same claim repeatedly and ensures that courts do not waste time adjudicating matters which have been decided or could have been decided fully and fairly.” Anne Arundel Cty. Bd. of Educ. v. Norville, 390 Md. 93, 107 (2005) (emphasis in original).

Under the doctrine of collateral estoppel, or issue preclusion, “[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.” Murray Int’l Freight Corp. v. Graham, 315 Md. 543, 547 (1989) (internal quotation marks and citation omitted). In order for either of these doctrines to apply, there must have been a final judgment on the merits in the earlier action. See Norville, 390 Md. at 107 ; National Union Fire Ins. Co. of Pittsburgh, PA v. The Fund for Animals, Inc., 451 Md. 431, 464 (2017). 15 Neither res judicata nor collateral estoppel applies in this case because our grant of Mr. Sperling’s petition for reinstatement was not a final judgment on the merits of the AGC’s allegations concerning Mr. Sperling’s handling of the Boyd/Bailey personal injury matter.

In reinstating Mr. Sperling over Bar Counsel’s objections, we decided only that Mr. Sperling should be permitted to practice law while Bar Counsel continued its investigation of the issues Bar Counsel had noted in its objections to Mr. Sperling’s petition for reinstatement. As Mr. Sperling correctly stated in his petition for reinstatement, a pending Bar complaint is not an automatic bar to reinstatement under Maryland Rule 19-751.12 However, it does not follow that, when we grant reinstatement of an attorney as to whom there is a pending Bar complaint, we conclude that there is no merit to the allegations contained in the complaint or that no sanction will be warranted if it is determined after further investigation and proceedings that the attorney committed the alleged additional professional misconduct. A contrary conclusion might result in our putting virtually all petitions for reinstatement on hold pending the resolution of existing Bar complaints. Mr. Sperling has benefitted from our willingness to allow him to practice law while Bar Counsel’s investigation of the Boyd/Bailey complaints continued and while the allegations 12 Under Maryland Rule 19-751(c)(3), an attorney who seeks reinstatement after serving a fixed suspension not exceeding six months must include in his or her petition for reinstatement a certification that, to the best of the attorney’s knowledge, information, and belief, no complaints or disciplinary proceedings are currently pending against the attorney.

This rule does not provide that an attorney who is the subject of a pending disciplinary complaint or proceeding (and who, therefore, is unable to certify that no complaints or disciplinary proceedings are currently pending against the attorney) is disqualified from petitioning for reinstatement. 16 contained in the resulting PDRA were considered by Judge Alexander and this Court. Indeed, in his petition for reinstatement, Mr. Sperling argued that the pendency of the Boyd/Bailey complaints “should not prevent his reinstatement to the practice of law.” We reject Mr. Sperling’s attempt to characterize our agreement with that proposition as a judgment on the merits of the allegations contained in the current PDRA. B. Exclusion of Expert Testimony Mr. Sperling also excepts to the hearing judge’s exclusion of Mr. Bedigian’s proffered expert testimony. For the reasons discussed below, we overrule this exception.

Mr. Sperling sought to admit Mr. Bedigian’s testimony as an expert regarding personal injury law and the ethics of “practicing plaintiff-side personal injury law.” After conducting extensive voir dire of Mr. Bedigian, the parties addressed whether the hearing judge should admit the proffered expert testimony. Mr. Sperling’s counsel noted that, under Maryland Rule 5-702, expert testimony is admissible if the court determines that it will assist the trier of fact to understand the evidence or to determine a fact in issue. Mr. Sperling’s counsel argued that Mr. Bedigian’s testimony would be helpful “specifically because we are dealing with the issues of a personal injury case.” Bar Counsel responded that they have no objection to experts being used in attorney grievance cases where appropriate, and noted that they “routinely call [experts] in immigration cases, bankruptcy cases, complex estate and trust cases, complex real estate cases, those types of cases.” Bar Counsel stated “[t]he case here is none of those cases. This is … run of the mill.” The hearing judge then stated: “[W]ith all due respect to Mr. Bedigian, who I do believe is a good lawyer.

He has appeared before me. He is a good lawyer. I don’t think 17 that this is appropriate in this regard or appropriate to have expert testimony. I think I have a very good understanding of what happened here and I’m not going to allow the expert testimony in this regard.” Mr. Sperling’s counsel then made an offer of proof to the hearing judge that Mr. Bedigian would have opined Mr. Sperling “represented Mr. Bailey and [Ms.] Boyd with the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Among other things, Mr. Bedigian would have testified that “when it came time to deal with the issue of the difficulties to serve [Ms. LaPlante], he gave the clients options, recommended a choice and that choice was the proper exercise of professional judgment.” In addition, Mr. Bedigian would have opined that Mr. Sperling “kept the clients reasonably informed under the standards of care” and, specifically, that “the standard of practice does not require sending a complaint to the client.

That it does not require you to ask your clients how much you are going to seek in damages in a complaint. And not necessarily required to tell clients that a [Rule 2-507] notice is required.” In his written opinion, issued almost three months after the evidentiary hearing, the hearing judge characterized his ruling as having excluded Mr. Bedigian’s testimony “as being irrelevant,” and then cited the portion of the record quoted above, which included his comment that he had “a very good understanding of what happened here.” We review the hearing judge’s exclusion of Mr. Bedigian’s testimony for abuse of discretion. See, e.g., Roy v. Dackman, 445 Md. 23, 38-39 (2015); Bomas v. State, 181 Md. App. 204, 214-17 (2008) (reviewing trial court’s exclusion of proffered expert testimony because it was “not helpful” for abuse of discretion). A trial court’s “action in admitting or 18 excluding [expert] testimony will seldom constitute a ground for reversal.” Roy, 445 Md. at 38-39 .

Mr. Sperling contends the hearing judge erred by excluding the proffered expert testimony as irrelevant. However, notwithstanding the hearing judge’s description of his ruling in his written opinion, we read the actual ruling at the hearing as excluding the proffered testimony because the hearing judge concluded it would not be helpful in understanding the issues before him. The hearing judge possessed the discretion to exclude the testimony after concluding that he already had a “very good understanding of what happened here.” By that point, the hearing judge had heard the testimony of Ms. Boyd, Mr. Bailey, Ms. Friend, and Mr. Sperling. As discussed further below, the hearing judge’s findings of fact depended in large part on credibility determinations that resolved disputed factual contentions in the witnesses’ testimony.

The hearing judge did not need to hear expert testimony to decide questions of credibility or pure questions of fact.13 Further, we agree with Bar Counsel that this case did not present matters of such complexity that the hearing judge needed to hear expert testimony to determine whether Mr. Sperling violated the rules of professional conduct. This case at its core concerned basic questions of attorney competence, diligence, and communication. After hearing the 13 To the extent Mr. Bedigian’s opinions were premised on Mr. Sperling’s testimony that he gave his clients “options” concerning how to proceed after he was unable to effect service on Ms. LaPlante, it is clear that Mr. Bedigian’s opinion would not have been helpful to the hearing judge. The hearing judge discredited Mr. Sperling’s testimony that he “discussed the significance of lack of service” with Ms. Boyd.

In addition, the hearing judge discredited Mr. Sperling’s testimony that he discussed the Notice of Contemplated Dismissal issued under Rule 2-507(d) with the clients. In short, Mr. Bedigian’s opinions on several points relied on factual premises that the hearing judge rejected. 19 testimony and reviewing the exhibits that collectively elucidated the facts concerning Mr. Sperling’s performance in these areas, the hearing judge concluded that he had “a very good understanding of what happened here” and, for that reason, excluded Mr. Bedigian’s testimony. Based on the record before us, we cannot conclude that this decision was an abuse of the hearing judge’s broad discretion. See AGC v. Hodes, 441 Md. 136, 182 (2014) (a hearing judge “has broad discretion to determine evidence’s relevance when considering its admission”); AGC v. Miller, 467 Md. 176, 203 (2020) (overruling attorney’s exception to hearing judge’s factual finding that adoption proceedings at issue did not contain novel or contested issues and that any finding on this point required expert testimony from a family law practitioner).

C. Violations of the Rules of Professional Conduct To the extent the parties have not excepted to the hearing judge’s findings of fact, we treat those findings as established. Md. Rule 19-741(b)(2)(A). When a party excepts to a factual finding, we conduct an independent review of the record to ensure that the finding is supported by clear and convincing evidence. Hodes, 441 Md. at 168 .

Clear and convincing evidence “does not call for ‘unanswerable’ or ‘conclusive’ evidence. The quality of proof, to be clear and convincing, has also been said to be somewhere between the rule in ordinary civil cases and the requirement of criminal procedure – that is, it must be more than a mere preponderance but not beyond a reasonable doubt.” Id. at 168 n.15. We have also explained that, in our review of the record, we generally accept the hearing judge’s findings of fact unless they are shown to be clearly erroneous. Id. at 168-69 . “A 20 hearing judge’s factual finding is not clearly erroneous if there is any competent evidence to support it.” Id. at 169 (quoting AGC v. McDonald, 437 Md. 1, 16 (2014)). 1.

Mr. Sperling’s General Exceptions to the Hearing Judge’s Findings of Fact and Conclusions of Law Mr. Sperling has stated two exceptions that apply generally to the hearing judge’s findings of fact and/or conclusions of law. First, Mr. Sperling argues that, to the extent the hearing judge’s findings are based on Ms. Boyd’s and/or Mr. Bailey’s testimony, those findings are defective because Ms. Boyd and Mr. Bailey could not remember many details of their interactions with Mr. Sperling from two to three years earlier. According to Mr. Sperling, these witnesses’ testimony cannot constitute clear and convincing evidence upon which to base any findings adverse to Mr. Sperling. We disagree.

The hearing judge heard the testimony of Ms. Boyd and Mr. Bailey, including the searching cross-examinations conducted by Mr. Sperling’s counsel, and found both Ms. Boyd and Mr. Bailey to be credible. Notably, both witnesses provided testimony that helped and hurt Mr. Sperling. We defer to the hearing judge’s decision to credit Ms. Boyd’s and Mr. Bailey’s testimony over Mr. Sperling’s testimony to the extent Mr. Sperling’s testimony was in conflict with that of the complaining witnesses. See Md. Rule 19-741(b)(2)(B) (requiring this Court to “give due regard to the opportunity of the hearing judge to assess the credibility of the witnesses”); Hodes, 441 Md. at 181 (explaining that “[w]e generally defer to the credibility findings of the hearing judge” because “[t]he hearing judge is in the best position to evaluate the credibility of the witnesses and to decide 21 which one to believe and, as we have said, to pick and choose which evidence to rely upon”) (internal quotation marks and citations omitted).

Thus, we overrule this exception. Next, Mr. Sperling contends that several of the hearing judge’s findings of fact and conclusions of law are based on conduct that was not specifically alleged in the PDRA. In particular, Mr. Sperling complains that the PDRA did not allege that he violated the rules of professional conduct by: (1) failing to convey MAIF’s second settlement offer to the clients; and (2) failing to provide Ms. Boyd’s medical records to MAIF and failing to respond to communications from MAIF regarding such records.14 According to Mr. Sperling, the hearing judge’s findings of violations based on these allegations of misconduct violated his right to due process. We again disagree.

Mr. Sperling correctly observes that a hearing judge’s findings must be “appropriately limited to charges filed by Bar Counsel through the [PDRA],” AGC v. Sanderson, 465 Md. 1 , 32 (2019), and that this limitation “stems from procedural due process concerns.” Id. “Particularly, this procedure is intended to ensure that an attorney is given fair notice of all of the charges filed against the attorney.” Id. However, we have also stated that a PDRA “is a notice pleading that will be deemed sufficient so long as the petition informs the attorney of the misconduct charged in language which is clear and 14 Mr. Sperling also complains that the PDRA did not allege that he failed to discuss the contents of the complaint and the legal process with the clients. As discussed below, we sustain Mr. Sperling’s exceptions to the hearing judge’s conclusions of law on those points on their merits. Mr. Sperling also asserts that the PDRA did not allege that he failed to provide a copy of the complaint to the clients.

This is incorrect. The PDRA did include that specific allegation. Regardless, we also shall sustain Mr. Sperling’s exception on the merits of that allegation, as discussed below. 22 sufficiently specific to enable the attorney to prepare a defense. No specific form or detail is required to satisfy this threshold requirement.” McDonald, 437 Md. at 43 (cleaned up).

The attorney in McDonald “recite[d] a litany of facts” in the hearing judge’s opinion that were not alleged in the PDRA filed in his case. Id. Nevertheless, we concluded that the PDRA in McDonald “was sufficient to put [the attorney] on notice of the charges against him.” Id. at 43-44 . We further noted that the attorney “point[ed] to no authority to support the proposition that every material fact relied on ultimately by the hearing judge from the admitted evidence must have been alleged in the Petition.” Id. at 44 .

We commented that, in fact, “[t]here is no such authority, nor shall this opinion be the first of that kind.” Id. The argument that we rejected in McDonald fares no better in Mr. Sperling’s case. Among other things, the PDRA alleged that there is no evidence that Mr. Sperling took any action to advance the case after January 2018. This allegation encompasses failing to provide medical records to MAIF and responding to MAIF’s post-January 2018 communications.

In addition, the PDRA quoted text communications between Ms. Boyd and Mr. Sperling in which Mr. Sperling stated that the case was “in suit” because MAIF “offered $500 to each person,” and that the reason the case was “taking this long” was not because the plaintiffs failed to make a police report on the day of the accident, but rather because MAIF “is cheap.” This put Mr. Sperling on notice that his communications with the clients concerning MAIF’s settlement offers were material to the allegations of misconduct. Further, it is undisputed that Bar Counsel provided Mr. Sperling with MAIF’s “Claim Chronology” regarding the Boyd/Bailey/Davis lawsuit in discovery, which reflected that, 23 on April 14, 2017, a MAIF adjuster left a voice mail on Mr. Sperling’s office line making a new settlement offer of $750 each for Ms. Boyd and Mr. Bailey. Moreover, Bar Counsel questioned Mr. Sperling about this second settlement offer in his pre-hearing deposition without objection, and Mr. Sperling also did not object to Bar Counsel’s questions at the evidentiary hearing concerning the $750 settlement offers. Mr. Sperling has not attempted to show how the omission of these specific allegations from the PDRA prejudiced his ability to mount a defense, and we discern no such prejudice upon our independent review of the record.

For all these reasons, we overrule this exception. 2. Mr. Sperling’s Specific Exceptions to the Hearing Judge’s Findings of Fact and Conclusions of Law Mr. Sperling has also stated several specific exceptions to the hearing judge’s findings of fact and conclusions of law. We discuss each of these exceptions in turn. Violations of Rule 1.1 and 1.3 The hearing judge found that Mr. Sperling violated Rule 1.1’s competence requirement and Rule 1.3’s diligence requirement by taking no further steps to locate a service address for Ms. LaPlante after the circuit court granted the motion to defer dismissal on September 22, 2017, and by failing to convey MAIF’s second settlement offer to the clients and to respond to MAIF regarding that offer.

In addition, the hearing judge found that Mr. Sperling violated Rule 1.3 by failing to provide Ms. Boyd’s medical records to MAIF. Mr. Sperling disagrees with each of these conclusions. 24 a. Failure to Attempt to Locate a Service Address for Ms. LaPlante Mr. Sperling testified that he went to MAIF’s office on November 20, 2017, in part, to determine if he “could actually get somebody to see if they had any information of the address for [Ms. LaPlante].” Mr. Sperling stated that after speaking with Ms. Friend on a phone in MAIF’s lobby about Ms. Boyd’s medical records, “a gentleman came out at some point and pulled up an address and gave it to me on a sticky,” but it was the same address for Ms. LaPlante that Mr. Sperling had possessed since the beginning of the case and at which he had tried unsuccessfully to serve Ms. LaPlante. Mr. Sperling testified that he did not keep the “sticky” note that the MAIF employee gave him.

Ms. Friend testified that, on November 20, 2017, she received a call from MAIF’s front desk that Mr. Sperling was in the lobby. Contrary to Mr. Sperling’s testimony that the two spoke on the phone, Ms. Friend testified that she went to the lobby and had a short face-to-face meeting with Mr. Sperling. According to Ms. Friend, Mr. Sperling “just wanted to confirm that we had all of the medicals that he submitted with his demand.” Ms. Friend testified that she also asked Mr. Sperling if he was going to link Ms. Boyd’s miscarriage to the accident. According to Ms. Friend, Mr. Sperling replied in the affirmative, and she then told him that MAIF would need to see Ms. Boyd’s prior OB- GYN records in order to further review the case.

When questioned whether Mr. Sperling asked during the lobby meeting for a review of MAIF’s file to determine whether or not MAIF had a current address for Ms. LaPlante, Ms. Friend answered, “Not that I recall,” and indicated that “[i]t would have been in the chronology.” 25 Consistent with Ms. Friend’s testimony at the hearing, the MAIF chronology entry relating to Mr. Sperling’s visit on November 20, 2017 recites that Mr. Sperling “wanted to confirm if we had all of the demand” and that Mr. Sperling “is now saying they are relating the miscarriage to this loss.” The chronology does not reflect that Mr. Sperling requested Ms. LaPlante’s last known address on November 20, 2017 (or any other date), or that anyone at MAIF provided that information to him. The hearing judge found Ms. Friend’s testimony to be credible. As for Mr. Sperling on this point, the hearing judge wrote in his findings of fact: “The court does not find credible Respondent’s testimony that he requested, and was given a note with LaPlante’s current address by a MAIF representative…. This assertion contradicts the more credible testimony of Friend that such activity would have been documented in the MAIF records, which it is not.” Mr. Sperling argues that the absence of an entry in the MAIF chronology showing that Mr. Sperling requested and received Ms. LaPlante’s last known address is not clear and convincing evidence that Mr. Sperling did not make such a request and did not receive the “sticky” note with Ms. LaPlante’s address on it.

But Mr. Sperling cannot avoid the fact that the hearing judge heard and rejected his testimony about asking for and receiving Ms. LaPlante’s last known address while at MAIF. We will not disturb this credibility determination. See, e.g., Hodes, 441 Md. at 181 . Nor can we say that the hearing judge erred in concluding that Mr. Sperling’s failure to ask MAIF for Ms. LaPlante’s last known address (or to take other steps to locate a service address for Ms. LaPlante after the circuit court deferred dismissal) demonstrated a lack of diligence and competence.

Indeed, the 26 General Assembly has provided a statutory mechanism for attorneys in the position in which Mr. Sperling found himself. Upon written request by a plaintiff in a lawsuit against an insured, an insurance company must provide the plaintiff with the insured’s “last known home and business addresses if known.” Md. Code Ann., Cts. & Jud. Proc. (CJP) § 6-311 (2020 Repl.

Vol.). After the circuit court deferred dismissal until November 30, 2017 to give Mr. Sperling additional time to locate and serve Ms. LaPlante, Mr. Sperling should have promptly submitted a written request to MAIF for Ms. LaPlante’s last known address.15 Mr. Sperling seemingly agrees that a reasonable attorney in his position should make such a request. Indeed, as discussed above, Mr. Sperling claims that he did ask MAIF for Ms. LaPlante’s address when he visited MAIF’s office on November 20, 2017. However, the hearing judge did not believe Mr. Sperling’s testimony on that point.

Mr. Sperling alternatively argues that we should not focus on the September- November 2017 time frame with respect to attempts to serve Ms. LaPlante, but rather should consider all his efforts to serve Ms. LaPlante from the time he filed the lawsuit against her on January 31, 2017. According to Mr. Sperling, such a review demonstrates that, overall, he exercised diligence in trying to serve Ms. LaPlante. It is undisputed that Mr. Sperling took several steps to try to serve Ms. LaPlante. He attempted to serve her by certified mail on February 14, 2017, and when that effort was unsuccessful, he employed private process servers in Maryland and Pennsylvania to 15 It is difficult to understand why Mr. Sperling did not submit such a request to MAIF earlier in 2017, after his attempt to serve Ms. LaPlante by certified mail on February 14, 2017, was unsuccessful. 27 attempt personal service on Ms. LaPlante beginning on June 18, 2017.

To that end, the Maryland process server conducted a “skip trace”16 to attempt to find a better address for Ms. LaPlante. Both the Maryland and Pennsylvania process servers made unsuccessful attempts to serve Ms. LaPlante at addresses associated with her. Putting aside the unexplained delay between the attempt to serve Ms. LaPlante by certified mail on February 14, 2017, and the first effort to effect personal service of Ms. LaPlante on June 18, 2017, we agree with the hearing judge that Mr. Sperling’s efforts to serve Ms. LaPlante after September 29, 2017 – the date the circuit court granted Mr. Sperling’s motion to defer dismissal – warrant independent scrutiny. It is undisputed that, as of November 20, 2017 (10 days before the deferred dismissal period was to end), Mr. Sperling had not made any request to MAIF for Ms. LaPlante’s last known address.

And the hearing judge found that Mr. Sperling did not request Ms. LaPlante’s last known address during his visit to MAIF on November 20. Notably, CJP § 6-311 required such a request to be submitted in writing, not verbally. In any event, after the circuit court deferred dismissal of the lawsuit to give Mr. Sperling more time to try to serve Ms. LaPlante, it was not reasonable for Mr. Sperling to leave that stone unturned, given the ease with which he could have made a written request, and the statutory requirement that MAIF comply with such a request. 16 “Skip-tracing is the process of developing new telephone, address, job or asset information” about a person. Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036 , 1040 n.1 (9th Cir. 2012).

Skip traces “can employ a wide variety of methods, ranging from basic online or public records searches to aggressive, in-person interviews with family and friends.” Sermuks v. Orion Caterers, Inc., 2017 WL 5714087 , at ² n.1 (E.D.N.Y. Nov. 28, 2017). 28 Notably, Mr. Sperling eventually was able to serve Ms. LaPlante after he refiled the lawsuit with only Ms. Davis as a plaintiff. Thus, it seems quite likely that if Mr. Sperling had approached service of Ms. LaPlante with greater diligence in 2017 – especially after the circuit court deferred dismissal to allow him to serve Ms. LaPlante – Ms. Boyd and Mr. Bailey would have been able to pursue their claims further. For the above reasons, we overrule Mr. Sperling’s exception and conclude that he violated Rules 1.1 and 1.3 when he failed to take additional steps to try to locate a service address for Ms. LaPlante after the circuit court deferred dismissal of the lawsuit. b. Failure to Convey or Respond to MAIF’s Second Settlement Offer The MAIF chronology reflects that, on April 14, 2017, a MAIF adjuster left a voice mail on Mr. Sperling’s office line in which she made a settlement offer of $750 each for Ms. Boyd and Mr. Bailey.

Ms. Friend testified about this entry during her testimony and confirmed that it showed MAIF had made a second offer on April 14, 2017, to Mr. Sperling to settle the clients’ claims. It is undisputed that Mr. Sperling never conveyed a second settlement offer to Ms. Boyd or Mr. Bailey. Mr. Sperling testified that he did not convey the second offer to his clients, or take any other action with respect to the offer, because he never received it. Mr. Sperling further testified that either he or his assistant usually picks up voice mails, and that he “pick[s] up [his] voice mails quite well.” Thus, he speculated that the MAIF adjuster may have hung up before the message went through or that someone in his office may have accidentally deleted it when the person was picking up voice mails.

He further suggested that, because 29 April 14, 2017 fell during the Passover holiday, “it is possible that there were a lot of messages and there was a mistake, technical error.” The hearing judge found that Ms. Friend “verified through records that MAIF communicated an additional offer to Respondent on April 14, 2017, to settle the two claims for $750.00 each.” Having found that MAIF communicated the second settlement offer to Mr. Sperling by way of the adjuster’s voice mail, the hearing judge concluded that Mr. Sperling violated Rules 1.1 and 1.3 when he failed to convey that offer to his clients and to provide a response to MAIF regarding the offer. Mr. Sperling argues that the entry in MAIF’s chronology that the adjuster left the voice mail communicating the second settlement offer does not constitute clear and convincing evidence that Mr. Sperling received the voice mail. In this regard, Mr. Sperling notes that Ms. Friend testified on cross-examination that she did know whether Mr. Sperling received any of the voice messages noted in the MAIF chronology. However, the hearing judge did not have only the MAIF entry before him on this point.

The hearing judge also heard Mr. Sperling’s testimony that he did not receive the MAIF offer. While the hearing judge did not explicitly discredit that part of Mr. Sperling’s testimony in his written opinion, it is clear from the hearing judge’s conclusions of law that the hearing judge rejected Mr. Sperling’s assertion that he did not have actual notice of the offer. In the aggravating factor section of his opinion, the hearing judge stated that Mr. Sperling was “dishonest by not informing his clients of an increased settlement offer.” Although we conclude below that there is not clear and convincing evidence that Mr. Sperling violated Rule 8.4(c) in his handling of the second settlement offer, we have no 30 difficulty concluding that the hearing judge discredited Mr. Sperling’s testimony that he did not know MAIF had made a second settlement offer. Mr. Sperling contends that, “[w]hile the trial court could in theory have discredited the testimony of Respondent” that he did not receive the April 14, 2017 voice mail, “what the court could not do was infer the opposite was true, namely that by clear and convincing evidence Respondent did receive the voice mail without consideration of any other evidence.” We do not disagree.

See Bereano v. State Ethics Comm’n, 403 Md. 716 , 746- 47 (2008). However, the hearing judge did not rely solely on an adverse credibility determination to conclude that Mr. Sperling received the voice mail. The hearing judge also relied on the MAIF chronology, which contemporaneously noted that the adjuster had left the voice mail containing the second round of settlement offers. Based on the MAIF chronology, Mr. Sperling’s testimony that he “picks[s] up [his] voice mails quite well,” and the hearing judge’s assessment of Mr. Sperling’s credibility, the hearing judge could conclude under a clear-and-convincing-evidence standard that Mr. Sperling received the voice mail and neglected to convey the offer to his clients.

Accordingly, we overrule Mr. Sperling’s exception and hold that Mr. Sperling’s failure to convey the second settlement offers to Ms. Boyd and Mr. Bailey constituted a lack of competence and a lack of diligence, in violation of Rules 1.1 and 1.3. c. Failure to Provide Ms. Boyd’s Medical Records to MAIF On November 29, 2017, Mr. Sperling had a telephone conversation with a MAIF adjuster in which the adjuster told Mr. Sperling that she would need to review OB-GYN records relating to Ms. Boyd’s prior successful pregnancy. Those records were relevant to 31 MAIF’s consideration of Mr. Sperling’s contention that Ms. Boyd’s miscarriage was related to the car accident caused by Ms. LaPlante. On January 9, 2018, the MAIF adjuster made an entry in MAIF’s claim chronology noting that MAIF had not yet received prior medical records relating to Ms. Boyd.

According to her entry, the adjuster also sent Mr. Sperling an email on January 9, 2018, requesting an update. On January 31, 2018, an employee of Mr. Sperling emailed him: “You wanted me to order stuff from [J]ai [M]edical regarding [Ms. Boyd’s] birth – u did not specify what exactly you need.. do you need the records from childbirth? – that would be from the hospital she gave birth at which I don’t know where she went and what was the date? or are you looking for the ob visits she had? Or the baby records? Need to know exactly what your [sic] looking for and the dates so I can order for you to pick up or have them mail it.” Approximately 15 minutes after the employee sent this email, Mr. Sperling texted Ms. Boyd and requested her child’s date of birth for purposes of making a records request from Jai Medical Center (“Jai”).

Ms. Boyd replied to Mr. Sperling’s text on the same day and provided her child’s date of birth (which was in 2013), as Mr. Sperling had requested. The record reflects that, almost one month later, on February 27, 2018, Mr. Sperling’s office faxed a request to Jai for copies of Ms. Boyd’s medical records between 2012 and 2013. On March 30, 2018, Jai informed Mr. Sperling’s firm that Ms. Boyd’s obstetrical records were located at the University of Maryland-Midtown Campus (“UMMC”) (formerly Maryland General Hospital). On April 11, 2018, Mr. Sperling’s office faxed a request to UMMC for Ms. Boyd’s medical records between 2012 and 2013.

On April 12, 2018, UMMC issued a billing 32 invoice to Mr. Sperling’s firm in the amount of $119.38 for 109 pages of records. Mr. Sperling paid for these records by way of a check dated April 13, 2018, in the amount of $119.38. UMMC’s records list the invoice as having been paid on April 19, 2018. Mr. Sperling’s firm subsequently received 109 pages of medical records relating to Ms. Boyd’s 2013 childbirth that were printed out at UMMC on April 19, 2018.

Prior to his suspension, Mr. Sperling did not transmit these records to MAIF, nor did he respond to any of MAIF’s follow-up communications regarding such records. Ms. Boyd testified that she did not know whether Mr. Sperling ever received her medical records. She also testified that she “didn’t know what was going on with the case” at the point when Mr. Sperling informed her that he had been suspended. The hearing judge found that Mr. Sperling’s failure to transmit Ms. Boyd’s medical records to MAIF constituted a lack of diligence, in violation of Rule 1.3.

Mr. Sperling excepts to this conclusion, contending that he was “in the process of reviewing” Ms. Boyd’s medical records “and strategically deciding how to utilize them” when he was suspended. However, there is no evidence in the record to support Mr. Sperling’s contention. Mr. Sperling did not testify at the hearing that he consciously decided not to send Ms. Boyd’s obstetrical records to MAIF prior to his suspension because he was still reviewing the records and “strategically deciding” how to use them. Moreover, Mr. Sperling never told Ms. Boyd that he had received the records from UMMC, let alone that he was in the process of reviewing them and deciding how best to use them to her advantage with MAIF. 33 We conclude that the record of Mr. Sperling’s actions and inactions with respect to Ms. Boyd’s medical records provides clear and convincing evidence of a lack of diligence.

To begin with, it is difficult to understand why Mr. Sperling waited more than two months from MAIF’s request to ask Ms. Boyd for her child’s date of birth for purposes of requesting the pertinent medical records, despite an email from MAIF on January 9, 2018, asking Mr. Sperling for an update. After Ms. Boyd provided her child’s date of birth to Mr. Sperling on January 31, 2018, almost another month went by before Mr. Sperling’s firm requested any medical records. And, after Jai informed Mr. Sperling’s office on March 30, 2018, that Ms. Boyd’s obstetrical records were located at UMMC, Mr. Sperling’s office waited almost another two weeks to send a request to UMMC for the records. Meanwhile, MAIF had sent Mr. Sperling a follow-up letter on March 12, 2018, requesting Ms. Boyd’s prior obstetrical records.

Although the record does not indicate the date that Mr. Sperling actually received the UMMC records that were printed out on April 19, 2018, the record reflects that Mr. Sperling’s office contemplated the possibility of Mr. Sperling picking up records relating to Ms. Boyd’s prior childbirth when they were ready. Thus, Mr. Sperling either had or should have had the records in his possession for at least a few weeks prior to his suspension. In any event, Ms. Boyd’s records were in Mr. Sperling’s file when Ms. Boyd retrieved the file from Mr. Sperling’s office. However, Mr. Sperling did not discuss the status of the case with Ms. Boyd, including that he had received the medical records MAIF had requested, but had not yet provided them to MAIF.

Had Mr. Sperling imparted this information to Ms. Boyd, Ms. Boyd could have considered whether to continue pursuing 34 settlement with MAIF with the medical records in hand, either with Mr. Sperling as her attorney following the completion of his suspension, or through new counsel. For these reasons, we overrule Mr. Sperling’s exception regarding the hearing judge’s Rule 1.3 conclusion with respect to Ms. Boyd’s medical records. Violations of Rule 1.4 Rules 1.4(a)(2) and (b) respectively require an attorney to “keep the client reasonably informed about the status of the matter” and to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” The hearing judge concluded that Mr. Sperling violated Rule 1.4 by: (1) never discussing the contents of the complaint with his clients, showing the complaint to them, or providing them with a copy of the complaint; (2) never explaining to the clients why he listed damages in excess of $75,000.00 for each of them in the complaint; (3) never “discuss[ing] the legal process with them”; (4) never advising them that the court had issued a Notice of Contemplated Dismissal due to the lack of service on Ms. LaPlante; and (5) failing to convey MAIF’s second settlement offer to the clients. Mr. Sperling excepts to all of these conclusions, which we now discuss in turn. a.

Failure to Discuss, Show, and Provide Copies of the Complaint The record reflects that Mr. Sperling frequently communicated with Ms. Boyd and Mr. Bailey about their matters over the two-and-a-half years that he represented them, although there were a few stretches of time when Mr. Sperling was less communicative, at least with Ms. Boyd. Regardless, Mr. Sperling contends that, in light of the overall level of communication between him and the clients, the hearing judge erred in concluding that Mr. 35 Sperling violated Rule 1.4 by failing to discuss the contents of the complaint with the clients and by failing to show them the complaint or to provide them with copies of it. We conclude that Mr. Sperling did not violate Rule 1.4 through these inactions. In some instances, it may constitute a violation of Rule 1.4 not to provide a copy of a filed complaint to one’s client.

If there was evidence that either Ms. Boyd or Mr. Bailey had ever asked Mr. Sperling for a copy of the complaint, his failure to comply with such a request might constitute a violation of the rule. However, Ms. Boyd and Mr. Bailey never asked Mr. Sperling to show them the complaint or to send them a copy of it. Moreover, in the context of this particular complaint, which straightforwardly alleged negligence on the part of Ms. LaPlante, we conclude that Mr. Sperling was not required under Rule 1.4 on his own initiative to discuss the specific contents of the complaint with the clients in order to keep them reasonably informed about the status of the case or to allow them to make informed decisions regarding the representation. At some point during litigation, it may be advisable or even necessary to provide one’s clients with a copy of the complaint in which they are named as plaintiffs, and/or to discuss some of the specific allegations contained in the complaint.

There is no evidence in the record to suggest that Ms. Boyd or Mr. Bailey was prejudiced in any respect by virtue of the fact that Mr. Sperling did not provide them with specifics concerning the complaint, or with a copy of the complaint itself, prior to the termination of his representation. For these reasons, we sustain Mr. Sperling’s exception on this point. 36 b. Failure to Explain the $75,000 Damages Amount For the same reasons, we sustain Mr. Sperling’s exception to the hearing judge’s conclusion that Mr. Sperling violated Rule 1.4 by not explaining to Ms. Boyd and Mr. Bailey why he alleged damages in excess of $75,000 for both of them in the complaint. There is no allegation or evidence that the prayer of relief in excess of $75,000 for both clients prejudiced the clients in any respect.

In the circumstances of this case, we do not believe that Mr. Sperling was required to explain to his clients why he thought that this prayer for relief was appropriate. c. Failure to Discuss “the Legal Process” with the Clients We also sustain Mr. Sperling’s exception to the hearing judge’s conclusion that he violated Rule 1.4 by “never discuss[ing] the legal process” with Ms. Boyd and Mr. Bailey. To the contrary, the record reflects that Mr. Sperling communicated on multiple occasions with Ms. Boyd and Mr. Bailey about the case and the legal process that was occurring or would occur as he represented them. d. Failure to Advise the Clients of the Dismissal Due to Lack of Service The hearing judge concluded that Mr. Sperling also violated Rule 1.4 by failing to tell Ms. Boyd and Mr. Bailey that the circuit court had issued a notice of contemplated dismissal of their lawsuit due to the failure to serve Ms. LaPlante.

In and of itself, the lack of client notification of this particular event in the lawsuit did not violate Rule 1.4. After receiving the notice of contemplated dismissal, Mr. Sperling sought and received a deferral of dismissal of the lawsuit. In our view, it was reasonable for Mr. Sperling not to focus the 37 clients on the notice of contemplated dismissal, given Mr. Sperling’s decision to move to defer dismissal and given the circuit court’s grant of the motion to defer dismissal. However, we are troubled by the clients’ testimony that they were not aware of the subsequent dismissal of their case due to the failure to serve Ms. LaPlante.

Perhaps anticipating this concern, Mr. Sperling contends in his exceptions that the hearing judge “committed error when he concluded the clients were unaware or did not understand the case had been dismissed without prejudice.” However, the hearing judge credited the clients’ testimony, and rejected Mr. Sperling’s testimony, on this point. Once again, we will not disturb this credibility determination.17 17 The dissent reads the hearing judge’s opinion as not finding that Mr. Sperling failed to tell the clients that the case had been dismissed without prejudice. Although the hearing judge based his conclusion of a Rule 1.4 violation on Mr. Sperling’s failure to tell the clients that the circuit court had issued a notice of contemplated dismissal, in his findings of fact the hearing judge found that Mr. Sperling also did not tell the clients that the case was dismissed. See page 9 supra (quoting the hearing judge’s findings of fact: “Respondent testified that he informed Boyd and Bailey of the dismissal and discussed the meaning and significance with them.

Again, this court finds such testimony to be in direct conflict with the credible testimony of Boyd and Bailey that Respondent never advised them of the dismissal and that they were under the impression