Attorney Grievance Commission v. Mitchell

Attorney Grievance Commission v. Michael Bowen Mitchell, Jr., Misc. Docket AG No. 35,
September Term 2014
ATTORNEY MISCONDUCT — DISCIPLINE — DISBARMENT — Respondent,
Michael Bowen Mitchell, Jr., violated Maryland Lawyers’ Rules of Professional Conduct
MLRPC 1.1; 1.2(a); 1.3; 1.4(a) and (b); 3.2; 8.1(a) and (b); and 8.4(c) and (d). These
violations stemmed from Respondent’s failure to represent a client competently and
diligently in two civil actions and Respondent’s dishonest conduct toward his client and
Bar Counsel.
Circuit Court for Baltimore City
Case No. 24-C-14-005017
Argued: September 29, 2015

IN THE COURT OF APPEALS
OF MARYLAND

Misc. Docket AG No. 35

September Term, 2014

ATTORNEY GRIEVANCE
COMMISSION OF MARYLAND

v.

MICHAEL BOWEN MITCHELL, JR.

Barbera, C.J.
Battaglia
Greene
Adkins
McDonald
Harrell, Jr., Glenn T., (Retired,
Specially Assigned)
Cathell, Dale R., (Retired,
Specially Assigned),

JJ.

Opinion by Barbera, C.J.

Filed: November 24, 2015
 On August 7, 2014, Petitioner, the Attorney Grievance Commission of Maryland

(“the Commission”), filed in this Court a Petition for Disciplinary or Remedial Action (“the

Petition”) against Respondent, Michael Bowen Mitchell, Jr. The Petition charged

Respondent with violating Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”)

1.1 (competence); 1.2 (scope of representation and allocation of authority between client

and lawyer); 1.3 (diligence); 1.4 (communication); 3.2 (expediting litigation); 8.1 (bar

admission and disciplinary matters); and 8.4 (misconduct). These violations stemmed from

Respondent’s representation of William J. Kolodner in two civil actions and his subsequent

correspondence with Bar Counsel. By Order dated August 26, 2014, this Court designated

the Honorable Lawrence P. Fletcher-Hill (“the hearing judge”) to conduct a hearing and

make findings of fact and conclusions of law.

On October 23, 2014, Petitioner served Respondent with the Petition, a Writ of

Summons, and the Transmittal Order of the Court of Appeals. Respondent did not respond

within fifteen days as required by Maryland Rule 16-754(a), and Petitioner therefore filed

a Motion for Order of Default on November 25, 2014, in the Circuit Court for Baltimore

City. Respondent similarly did not respond to that motion, and the hearing judge

consequently entered an Order of Default on December 19, 2014. Respondent did not

move to vacate that Order.

Also on October 23, 2014, Petitioner served Petitioner’s First Set of Interrogatories;

a Request for Production of Documents, Electronically Stored Information and Property;

and a Request for Admissions of Facts and Genuineness of Documents. Respondent failed

to respond to those discovery requests. The hearing judge held a hearing on March 10,
2015, at which Respondent did not appear. At that hearing, Petitioner submitted as

evidence its Request for Admissions and Proposed Findings of Fact and Conclusions of

Law. On April 1, 2015, the hearing judge issued a Statement of Findings of Fact and

Conclusions of Law, in which he concluded by clear and convincing evidence that

Respondent violated MLRPC 1.1; 1.2(a); 1.3; 1.4(a) and (b); 3.2; 8.1(a) and (b); and 8.4(c)

and (d). Neither Petitioner nor Respondent filed exceptions to the hearing judge’s findings

of fact or conclusions of law. Respondent did not appear before us for oral argument as to

sanction. We issued a Per Curiam Order on September 29, 2015, disbarring Respondent

immediately from the practice of law. We now explain the reasons for that Order.

I.

As a consequence of Respondent’s default, the hearing judge deemed established

the averments in the Petition. See Md. Rules 16-754(c), 2-613(f), 2-323(e). The hearing

judge likewise deemed admitted the facts alleged in the Request for Admissions of Fact

and Genuineness of Documents. See Md. Rules 16-756, 2-424(b). Upon those submissions

and Petitioner’s Proposed Findings of Fact and Conclusions of Law, which the hearing

judge adopted essentially verbatim, the hearing judge made the following findings of fact

by clear and convincing evidence.

Respondent was admitted to the Bar of the Court of Appeals of Maryland on

December 15, 1999, and maintained a law office in Baltimore City, Maryland. In 2009,

William J. Kolodner retained Respondent to represent him in two civil actions. The first

action alleged that Levindale Hebrew Geriatric Center and Hospital (“Levindale”) and

certain employees at that facility committed malpractice and assault/battery against Mr.

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Kolodner in 2008 (“the Levindale action”). Respondent filed a complaint in the Circuit

Court for Baltimore City on April 15, 2011, well past the one-year statute of limitations for

assault claims. See Md. Code (1989, 2013 Repl. Vol.), § 5-105 of the Courts & Judicial

Proceedings Article.

On August 15, 2011, Respondent spoke to Mr. Kolodner via telephone about the

Levindale action, during which Respondent advised Mr. Kolodner to dismiss the litigation

for lack of expert medical testimony. Mr. Kolodner did not accept that advice and instead

directed Respondent to file an amended complaint that eliminated any medical malpractice

claims. Respondent agreed to do so but did not file an amended complaint. Respondent

failed to inform Mr. Kolodner that he did not intend to follow Mr. Kolodner’s instructions.

Respondent then stipulated to dismiss the entire case with prejudice against all defendants

on August 31, 2011, and failed to inform Mr. Kolodner of the dismissal.

On September 29, 2011, Mr. Kolodner checked court records and discovered that

the Levindale action had been dismissed. Mr. Kolodner informed Respondent of his

discovery that day, and Respondent promised to schedule a conference call for the

following day to discuss the case. Respondent, however, did not arrange the conference

call and failed to explain the status of the case to Mr. Kolodner. In addition, Respondent

claimed during the September 29, 2011, phone call that he had uncovered a “little known

law” that would allow him to re-file the lawsuit. Respondent did not inform Mr. Kolodner

what that law was, and nothing ever came of Respondent’s alleged discovery.

The second action involved a claim that Mr. Kolodner’s health insurer, Blue Cross

Blue Shield, improperly refused to reimburse him for costs incurred during his stay at

3
Levindale (“the insurance action”). Respondent filed a complaint against “Blue Cross and

Blue Shield Association” in the Circuit Court for Baltimore City on July 25, 2011. The

Circuit Court for Baltimore City dismissed the insurance action on January 10, 2012,

because Respondent had not obtained service on Blue Cross Blue Shield. See Md. Rule 2-

507. Respondent took no action to prevent the dismissal and did not ask the court to

reinstate the case. Respondent further failed to inform Mr. Kolodner that this lawsuit had

been dismissed and the reason therefor. Respondent failed to communicate with Mr.

Kolodner, respond to his requests for information, or keep him informed regarding the

status of his cases throughout the course of the representation.

Mr. Kolodner submitted a written complaint against Respondent to the Commission

on May 4, 2012. Bar Counsel notified Respondent of the complaint. Respondent sent a

reply to Bar Counsel on June 5, 2012, claiming that he had named the wrong defendant in

the insurance action but had filed an amended complaint and would serve the resident agent

with the summons upon receipt from the Clerk. Respondent evidently attempted to file an

amended complaint, but the Circuit Court for Baltimore City returned the amended

complaint to Respondent on June 16, 2012, with the time/date stamp crossed out because

the case had been dismissed on January 10, 2012. Respondent failed to inform Bar Counsel

that the amended complaint was not accepted and he accordingly would not be serving the

resident agent. Respondent failed to disclose facts necessary to correct Bar Counsel’s

misapprehension that this litigation was ongoing. Based on Respondent’s representations

in his June 5, 2012, letter to Bar Counsel, and his subsequent failure to correct the

information contained therein, Bar Counsel decided not to take action on Mr. Kolodner’s

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May 4, 2012, complaint.

Mr. Kolodner submitted another complaint to Bar Counsel on August 14, 2013, in

which he contended that Respondent had not filed an amended complaint and had deceived

the Commission in that regard. Upon receiving notification of Mr. Kolodner’s additional

complaint, Respondent called Assistant Bar Counsel on August 29, 2013, again

maintaining that he had filed an amended complaint and would forward a time/date

stamped copy. On September 19, 2013, Bar Counsel received a letter from Respondent

enclosing a purported amended complaint against Blue Cross Blue Shield; the document

did not show marks crossing over the court’s time/date stamp. Respondent’s letter did not

inform Bar Counsel either that the amended complaint had not been accepted for filing or

that the case had been dismissed in January 2012. The hearing judge found that Respondent

made inconsistent, false, and misleading statements to Petitioner’s investigator during

Petitioner’s investigation of Mr. Kolodner’s complaint.

Based upon the above findings, the hearing judge concluded by clear and convincing

evidence that Respondent’s conduct violated MLRPC 1.1; 1.2(a); 1.3; 1.4; 3.2; 8.1(a) and

(b); and 8.4(c) and (d).

II.

“This Court has original and complete jurisdiction over attorney discipline

proceedings in Maryland.” Attorney Grievance Comm’n v. Barton, 442 Md. 91, 119 (2015)

(quoting Attorney Grievance Comm’n v. O’Leary, 433 Md. 2, 28 (2013)). Because neither

Petitioner nor Respondent excepted to the hearing judge’s findings of fact, we shall treat

those facts as established. See Md. Rule 16-759(b)(2)(A) (“If no exceptions are filed, the

5
Court may treat the findings of fact as established for the purpose of determining

appropriate sanctions, if any.”). We review de novo the hearing judge’s conclusions of

law. Attorney Grievance Comm’n v. Agbaje, 438 Md. 695, 717 (2014).

MLRPC 1.1

MLRPC 1.1 provides:

A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.

The hearing judge concluded that Respondent violated MLRPC 1.1 by failing to file timely

the complaint in the Levindale action; name the proper defendant in the insurance action

and obtain service of process on that defendant; file timely the amended complaint in the

insurance action and prevent that action from being dismissed for lack of jurisdiction before

the January 2012 dismissal and thereafter; and keep Mr. Kolodner informed about the

dismissals, thereby precluding Mr. Kolodner from seeking another attorney who better

would protect his interests.

An attorney violates MLRPC 1.1 when he or she fails to act with the requisite

preparation and thoroughness in representing a client. See, e.g., Attorney Grievance

Comm’n v. Gage-Cohen, 440 Md. 191, 197 (2014). An attorney also violates this Rule

when the attorney “fails to act or acts in an untimely manner, resulting in harm to his or

her client.” Attorney Grievance Comm’n v. Brown, 426 Md. 298, 319 (2012); see also

Attorney Grievance Comm’n v. Haley, 443 Md. 657, 668 (2015) (concluding that the

respondent violated MLRPC 1.1 by failing “to prepare and submit any pleadings or take

any action in furtherance of [his client’s] case”).

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 We agree with the hearing judge that Respondent’s failure to file a complaint in the

Levindale action before the statute of limitations expired on the assault/battery claim

demonstrated a lack of competence in violation of MLRPC 1.1. Attorney Grievance

Comm’n v. Bleecker, 414 Md. 147, 170-72 (2010) (concluding that the respondent violated

MLRPC 1.1 by failing to file a complaint on behalf of his client within the statute of

limitations). Respondent also violated MLRPC 1.1 in connection with Mr. Kolodner’s

insurance action. Although naming the wrong defendant in the initial complaint, in itself,

may not rise to the level of an MLRPC 1.1 violation, Respondent’s failure to realize and

correct the error before the case was dismissed six months thereafter demonstrates

incompetence in violation of MLRPC 1.1. Respondent similarly violated MLRPC 1.1 by

failing to obtain service of process on the correct defendant, take any action to prevent the

dismissal of the case, and attempt to have the case reinstated. See Attorney Grievance

Comm’n v. Sperling, 432 Md. 471, 491 (2013) (concluding that the respondent violated

MLRPC 1.1 by failing to attempt to have his client’s case reinstated once it was dismissed

for failure to serve the defendant).

MLRPC 1.2

MLRPC 1.2 provides, in pertinent part:

(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s
decisions concerning the objectives of the representation and, when
appropriate, shall consult with the client as to the means by which they
are to be pursued. A lawyer may take such action on behalf of the client
as is impliedly authorized to carry out the representation. A lawyer shall
abide by a client’s decision whether to settle a matter.

The hearing judge concluded that Respondent violated MLRPC 1.2(a) by failing to follow

7
Mr. Kolodner’s directions to file an amended complaint in the Levindale action and instead

stipulating to the dismissal of the entire case with prejudice. The hearing judge reasoned

that this conduct constituted a failure to abide by the client’s explicit directions and further

constituted an action outside of Respondent’s authority.

An attorney violates MLRPC 1.2(a) by failing to follow the client’s instructions

regarding a matter. See Haley, 443 Md. at 669 (concluding that the respondent violated

MLRPC 1.2(a) by failing to follow the client’s instructions). An attorney also violates

MLRPC 1.2(a) by “fail[ing] to inform a client of the status of his or her case, thereby

denying the client the ability to make informed decisions.” Attorney Grievance Comm’n

v. Hamilton, 444 Md. 163, 182 (2015). For much the same reasons, the failure to take

action on a case, resulting in its dismissal, violates MLRPC 1.2(a). See Sperling, 432 Md.

at 492-93 (concluding that the respondent’s failing to inform the client that her case was

dismissed for failure to serve the defendant was a violation of MLRPC 1.2(a) because the

client lost the “ability to make an informed decision as to the objectives of the

representation”); see also Brown, 426 Md. at 320 (holding that the respondent violated

MLRPC 1.2(a) where his two clients’ “cases were dismissed for lack of prosecution due to

Respondent’s inaction” and the respondent failed to inform his clients of the dismissals);

Attorney Grievance Comm’n v. Reinhardt, 391 Md. 209, 220 (2006) (holding that the

respondent’s inaction, resulting in the dismissal of his client’s case, violated MLRPC 1.2

because the respondent failed to follow the client’s instruction to pursue the case and

inform her of the status of the case).

The hearing judge correctly concluded that Respondent violated MLRPC 1.2(a) by

8
agreeing to comply with Mr. Kolodner’s request to file an amended complaint in the

Levindale action but instead stipulating to its dismissal with prejudice. That conduct was

in direct contravention of Mr. Kolodner’s explicit directions. See Haley, 443 Md. at 669.

Respondent’s failure to take action in the insurance case, and to inform Mr. Kolodner of

its dismissal, also violated MLRPC 1.2(a) because it deprived Mr. Kolodner of the “ability

to make an informed decision as to the objectives of the representation.” Sperling, 432

Md. at 492; Reinhardt, 391 Md. at 220.

MLRPC 1.3

MLRPC 1.3 provides that “[a] lawyer shall act with reasonable diligence and

promptness in representing a client.” The hearing judge concluded that Respondent did

not act with reasonable diligence because he did not file the Levindale action until two

years after he was retained by Mr. Kolodner, which was beyond the statute of limitations

for the assault/battery claim; he failed to advance Mr. Kolodner’s interests by stipulating

to the dismissal of the Levindale action without Mr. Kolodner’s consent; he named the

wrong defendant in the insurance action, allowing the court to dismiss that lawsuit for lack

of jurisdiction; he failed to ask the court to reinstate the insurance action; and he failed to

inform Mr. Kolodner of the dismissal and otherwise keep the client informed as to the

status of the two cases.

We agree with the hearing judge that Respondent violated MLRPC 1.3 by filing a

complaint in the Levindale action two years after he was retained by Mr. Kolodner, thereby

allowing the statute of limitations on the assault/battery claim to expire. See Attorney

Grievance Comm’n v. Lee, 393 Md. 385, 403 (2006) (concluding that the respondent

9
violated MLRPC 1.3 by failing to review the client’s case documents until nearly two years

after the respondent was retained and to prepare written pleadings as promised); see also

Attorney Grievance Comm’n v. Davy, 435 Md. 674, 699-700 (2013) (concluding that the

respondent violated MLRPC 1.3 by not filing a complaint until 9:11 p.m. on the day the

statute of limitations expired, failing to correct the deficiency that caused the court to reject

it, and failing to notify the client that the complaint had been rejected).

Respondent further violated MLRPC 1.3 by failing to serve the correct defendant in

the insurance case and thereafter failing to take any action to prevent that case from being

dismissed. See Attorney Grievance Comm’n v. McCulloch, 404 Md. 388, 398 (2008)

(holding that the respondent violated MLRPC 1.3 by failing to secure service of process

on the defendant or take action to prevent the court from dismissing the case for lack of

prosecution). Respondent, moreover, waited five months after the insurance case was

dismissed before attempting to file an amended complaint, doing so only after Mr.

Kolodner had submitted a complaint to the Commission. This conduct likewise

demonstrates a lack of diligence in violation of MLRPC 1.3. See Attorney Grievance

Comm’n v. Shapiro, 441 Md. 367, 383 (2015) (“The decision to do nothing promptly when

an attorney learns the case was dismissed violates MLRPC 1.3.”) (alterations and internal

quotation marks omitted).

MLRPC 1.4

MLRPC 1.4 provides:

(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with
respect to which the client's informed consent, as defined in Rule

10
 1.0(f), 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
lawyer’s conduct when the lawyer knows that the client expects
assistance not permitted by the Maryland Lawyers’ Rules of
Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to
permit the client to make informed decisions regarding the representation.

The hearing judge concluded that Respondent failed to communicate adequately with Mr.

Kolodner, respond to Mr. Kolodner’s requests for information regarding his cases, and

keep Mr. Kolodner informed regarding the status of those matters. The hearing judge noted

that Mr. Kolodner only came to know that Respondent had stipulated to the dismissal of

the Levindale action by personally checking court records. Moreover, the hearing judge

concluded that Respondent violated MLRPC 1.4 by giving Mr. Kolodner false information

when confronted with that discovery.

The failure to communicate with a client about the status of a matter, particularly

the failure to inform a client that his or her case was dismissed, violates MLRPC 1.4.

Attorney Grievance Comm’n v. Shuler, 443 Md. 494, 505 (2015) (concluding that the

respondent violated MLRPC 1.4 by neglecting to inform the client that he had not prevailed

in his civil appeal); Shapiro, 441 Md. at 385 (concluding that the respondent violated

MLRPC 1.4 by failing to inform a client that her claim had been dismissed and continuing

to misrepresent the status of the case over several years); Davy, 435 Md. at 701 (concluding

that the respondent violated MLRPC 1.4 by failing to notify the client that her complaint

had been rejected by the court).

We agree with the hearing judge that Respondent violated MLRPC 1.4 in a myriad

11
of respects. Respondent failed to inform Mr. Kolodner that he did not intend to follow Mr.

Kolodner’s instruction to file an amended complaint in the Levindale action. Thereafter,

Respondent failed to inform Mr. Kolodner that he stipulated to the dismissal of that case

with prejudice, leaving Mr. Kolodner to discover that information himself. See Sperling,

432 Md. at 494 (concluding that the respondent violated MLRPC 1.4 by failing to inform

the client that the case was dismissed and misrepresenting that it was being pursued).

Moreover, when Mr. Kolodner confronted Respondent with his discovery, Respondent

provided him with misleading information regarding Respondent’s ability to re-file the

action based upon an alleged “little known law.” See Davy, 435 Md. at 701 (concluding

that the respondent violated MLRPC 1.4 by providing false information to a client about

the availability of a summons). Respondent failed to schedule the promised conference

call with Mr. Kolodner regarding the Levindale action and, as a result, never explained the

status of that case to his client. See Attorney Grievance Comm’n v. Thomas, 440 Md. 523,

553 (2014) (stating that an attorney who fails to keep a client informed regarding the status

of the client’s cases, particularly where the client attempts repeatedly to speak with the

attorney, violates MLRPC 1.4). Respondent also violated MLRPC 1.4 by failing to notify

Mr. Kolodner that the insurance action had been dismissed because of Respondent’s failure

to obtain service of process on Blue Cross Blue Shield. See Brown, 426 Md. at 322

(concluding that the respondent violated MLRPC 1.4 by failing to inform the client that

the case had been dismissed because the respondent had failed to serve the defendants

timely).

MLRPC 3.2

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 Under MLRPC 3.2, “[a] lawyer shall make reasonable efforts to expedite litigation

consistent with the interests of the client.” The hearing judge concluded that Respondent,

who filed the insurance action on July 25, 2011, violated MLRPC 3.2 by failing to obtain

service on Blue Cross Blue Shield prior to January 10, 2012, thereby causing that action to

be dismissed. The hearing judge further concluded that Respondent violated MLRPC 3.2

by failing to take any action to reinstate the lawsuit as of June 16, 2012, or to attempt to

obtain proper service on the defendant. Although Respondent eventually attempted to file

an amended complaint, the hearing judge noted that Respondent did not undertake this

action until after Bar Counsel notified him of Mr. Kolodner’s complaint.

“An attorney violates MLRPC 3.2 by delaying to take fundamental litigation steps

in pursuit of the client’s interest.” Attorney Grievance Comm’n v. Gray, 436 Md. 513, 520

(2014) (alterations and internal quotation marks omitted); see also Attorney Grievance

Comm’n v. Patterson, 421 Md. 708, 737 (2011) (concluding that the respondent violated

MLRPC 3.2 because “he undertook no effort to serve process upon either of the

Defendants”).

After filing the insurance action on July 25, 2011, Respondent failed to obtain

service of process on Blue Cross Blue Shield, causing the case to be dismissed on January

10, 2012. And, as of June 16, 2012, Respondent had done nothing to have the dismissal

set aside, nor did he act in any meaningful way to expedite the litigation to protect his

client’s interests. As the hearing judge pointed out, Respondent made an effort to file an

amended complaint only after he was notified by Bar Counsel about Mr. Kolodner’s

complaint against him. We agree with the hearing judge’s conclusion that Respondent

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violated MLRPC 3.2.

MLRPC 8.1

MLRPC 8.1 provides:

An applicant for admission or reinstatement to the bar, or a lawyer in
connection with a bar admission application or in connection with a
disciplinary matter, shall not:
(a) knowingly make a false statement of material fact; or
(b) 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 an admissions or disciplinary
authority, except that this Rule does not require disclosure of information
otherwise protected by Rule 1.6.
The hearing judge concluded that Respondent violated MLRPC 8.1 by falsely claiming in

his June 5, 2012, letter to Bar Counsel that he had filed an amended complaint in the

insurance action and would be serving the summons upon the resident agent when he

received it from the Clerk. Respondent further violated MLRPC 8.1 by failing to inform

Bar Counsel that the amended complaint had been rejected by the Clerk of the Court, that

no summons was issued, and that the proper defendant could not be served because that

litigation had been dismissed. The hearing judge concluded that Respondent also violated

MLRPC 8.1 by calling Bar Counsel on August 29, 2013, again claiming falsely that the

amended complaint had been filed, without notifying Bar Counsel that the case had been

dismissed over a year earlier. The hearing judge concluded that Respondent additionally

violated MLRPC 8.1 by sending a copy of the amended complaint to Bar Counsel that did

not show the marks crossing over the court’s time/date stamp and by making false

statements to Petitioner’s investigator.

A violation of MLRPC 8.1(a) will result whenever an attorney makes intentional

14
misrepresentations to Bar Counsel. See Attorney Grievance Comm’n v. Brigerman, 441

Md. 23, 39 (2014). In Attorney Grievance Comm’n v. Nussbaum, 401 Md. 612, 628-29

(2007), the respondent submitted ledgers to Bar Counsel that purported to be made

contemporaneously with the transactions in the respondent’s escrow account when the

ledgers actually were made after the fact. We held that the respondent’s “knowing

misrepresentation of the legitimacy of his ledger entries to Bar Counsel certainly violated

MRPC 8.1(a).” Id. at 641. Similarly, Respondent’s submission of an amended complaint

to Bar Counsel, which did not reflect the court’s crossed out time/date stamp, was a

knowing misrepresentation in violation of MLRPC 8.1(a). See also Lee, 393 Md. at 411-

12 (holding that the respondent violated MLRPC 8.1(a) by implying that the delay in

pursuing the client’s case was due to the unavailability of transcripts when, in fact, the

respondent’s failure to undertake a timely review of case materials caused the delay).

Respondent likewise violated MLRPC 8.1(a) by insisting to Bar Counsel in August 2013

that an amended complaint had been filed, when in fact Respondent had received the

court’s rejection of it more than one year earlier. See Attorney Grievance Comm’n v.

Kapoor, 391 Md. 505, 524 (2006) (concluding that the respondent violated MLRPC 8.1(a)

by making a statement to Bar Counsel that was later proven to be false). Bar Counsel

determined initially not to pursue Mr. Kolodner’s complaint because Respondent’s June 5,

2012, letter stated that an amended complaint had been filed in the insurance action.

Respondent did not correct that misapprehension, thereby violating MLRPC 8.1(b). That

violation was exacerbated by Respondent’s subsequent repeated knowing

misrepresentations continuing to maintain that an amended complaint was filed when he

15
knew it had been rejected by the court.

MLRPC 8.4

In relevant part, MLRPC 8.4 provides that:

It is professional misconduct for a lawyer to:
***
(c) engage in conduct involving dishonesty, fraud, deceit or
misrepresentation; [or]
(d) engage in conduct that is prejudicial to the administration of justice[.]

The hearing judge concluded that Respondent violated MLRPC 8.4(c) by misrepresenting

to Mr. Kolodner the status of his cases, concealing material information from him, and

agreeing to file an amended complaint as Mr. Kolodner directed but failing to do so. The

hearing judge concluded that Respondent’s misrepresentations to Bar Counsel, which

formed the basis for the MLRPC 8.1 violation, similarly constituted conduct involving

dishonesty, deceit, and misrepresentation in violation of MLRPC 8.4(c). The hearing judge

concluded that Respondent violated MLRPC 8.4(d) by failing to provide competent and

diligent representation to Mr. Kolodner, expedite the litigation for which he was retained,

and keep Mr. Kolodner informed regarding the status of the representation. The hearing

judge concluded that Respondent’s dishonest conduct was also prejudicial to the

administration of justice because it reflects negatively on the legal profession.

Dishonest conduct, for purposes of MLRPC 8.4(c), “encompasses, inter alia,

conduct evincing a lack of honesty, probity or integrity in principle [and] a lack of fairness

and straightforwardness. Thus, what may not legally be characterized as an act of fraud,

deceit or misrepresentation may still evince dishonesty.” Attorney Grievance Comm’n v.

McDonald, 437 Md. 1, 39-40 (2014) (alterations and internal quotation marks omitted).

16
“Attorneys violate MLRPC 8.4(c) when they misrepresent to their clients the status of their

clients’ cases, or conceal material information from their clients, even if they have not

misrepresented explicitly the information.” Thomas, 440 Md. at 555.

We agree with the hearing judge that Respondent violated MLRPC 8.4(c).

Respondent engaged in intentional dishonest conduct toward Mr. Kolodner when he agreed

to file an amended complaint in the Levindale action but instead disregarded Mr.

Kolodner’s directions and stipulated to the dismissal of the case with prejudice. See

Attorney Grievance Comm’n v. London, 427 Md. 328, 350 (2012) (concluding that an

attorney violated MLRPC 8.4(c) by telling his client that he had “filed the deed” and the

deed was “taken care of” when no such deed was ever filed and may not have been

prepared). Respondent further violated MLRPC 8.4(c) when he failed to notify Mr.

Kolodner that the insurance action had been dismissed because Respondent had failed to

effect service of process on the defendant. See Bleecker, 414 Md. at 169 (concluding that

“Bleecker’s concealment from his client of material information regarding the dismissal of

her case represents a violation of Rule 8.4(c)”). Respondent’s dishonest conduct toward

Bar Counsel also violates MLRPC 8.4(c). Attorney Grievance Comm’n v. Harris, 403 Md.

142, 164 (2008) (explaining that “an attorney acts dishonestly and deceitfully” in violation

of MLRPC 8.4(c) “by knowingly making false statements to Bar Counsel”).

We further agree with the hearing judge that Respondent’s misconduct was

prejudicial to the administration of justice in violation of MLRPC 8.4(d). The failure to

represent a client competently, diligently, and honestly reflects negatively on the legal

profession as a whole. Thomas, 440 Md. at 555-56 (concluding that “the violations of

17
MLRPC 1.1, 1.3, and 1.4 together constituted a violation of MLRPC 8.4(d)” because that

conduct brings the legal profession into disrepute). We held in Bleecker that the

respondent’s “failure to timely file [his client’s] personal injury claim, compounded by his

failure to promptly notify [the client] and advise her to seek the advice of independent

counsel regarding a malpractice action, constituted behavior that seriously impairs public

confidence in the entire profession, in violation of Rule 8.4(d).” 414 Md. at 175. As in

Bleecker, Respondent’s failure to perform competently and diligently in pursuing Mr.

Kolodner’s interests in the two civil actions for which he was retained, and to notify Mr.

Kolodner of those failures, impairs confidence in the legal profession and thereby violates

MLRPC 8.4(d). Respondent’s numerous misrepresentations and material omissions to Mr.

Kolodner and Bar Counsel likewise violated MLRPC 8.4(d). See Sperling, 432 Md. at 494.

III.

In determining the proper sanction to impose upon an attorney for his or her

professional misconduct, our goal is “to protect the public and the public’s confidence in

the legal profession.” Attorney Grievance Comm’n v. Zimmerman, 428 Md. 119, 144

(2012). We accomplish that goal by deterring “‘the type of conduct which will not be

tolerated,’ and by removing those unfit to continue in the practice of law from the rolls of

those authorized to practice in this State.” Patterson, 421 Md. at 740 (quoting Bleecker,

414 Md. at 176). The appropriate sanction for Respondent’s misconduct is disbarment.

“Disbarment is warranted in cases involving flagrant neglect of client affairs,

including the failure to communicate with clients or respond to inquiries from Bar

Counsel.” Thomas, 440 Md. at 558; see also Attorney Grievance Comm’n v. Dunietz, 368

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Md. 419, 431 (2002) (“Respondent’s continuing disregard for the attorney grievance

process, his apparent indifference to the tenets of his chosen profession, the dereliction of

his duties to his client, and his ostensible lack of remorse for his misconduct, warrant a

sanction of this severity.”).

We also have disbarred attorneys who misrepresented the status of their clients’

cases, allowed the statute of limitations to expire, and failed to cooperate with Bar Counsel.

See Bleecker, 414 Md. at 176, 180. When an attorney engages in intentionally dishonest

conduct, disbarment will follow as a matter of course absent compelling extenuating

circumstances that justify a lesser sanction. Attorney Grievance Comm’n v. Levin, 438 Md.

211, 231 (2014). Respondent engaged in intentionally dishonest conduct when he lied to

Mr. Kolodner and Bar Counsel about the status of the matters for which he was retained.

We agree with Petitioner, moreover, that Respondent’s misconduct is compounded

by the presence of a number of the aggravating factors suggested by the American Bar

Association. The potential aggravating factors are:

(a) prior disciplinary offenses;
(b) dishonest or selfish motive;
(c) a pattern of misconduct;
(d) multiple offenses;
(e) bad faith obstruction of the disciplinary proceeding by intentionally
failing to comply with rules or orders of the disciplinary agency;
(f) submission of false evidence, false statements, or other deceptive
practices during the disciplinary process;
(g) refusal to acknowledge wrongful nature of conduct;
(h) vulnerability of victim;
(i) substantial experience in the practice of law;
(j) indifference to making restitution;
(k) illegal conduct, including that involving the use of controlled substances.

Standard 9.22 of the American Bar Association Standards for Imposing Lawyer Sanctions

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(2012); see also Attorney Grievance v. Zhang, 440 Md. 128, 172 (2014) (considering the

presence of aggravating factors though the hearing judge made no findings in that regard).

Petitioner submits that factors (c), (d), (f), and (j) are present in this case. We agree.

Respondent engaged in a pattern of misconduct by failing repeatedly to act in Mr.

Kolodner’s best interest over the course of years and making numerous misrepresentations

to Mr. Kolodner and Bar Counsel, implicating factor (c). Factor (d) is implicated by

Respondent’s numerous violations of the Rules. See Barton, 442 Md. at 146. In addition,

Respondent submitted false evidence to Bar Counsel in the form of an amended complaint

that lacked the court’s cross out of the time/date stamp, implicating factor (f). Factor (f) is

further implicated by Respondent’s false statement to Bar Counsel in August 2013 that an

amended complaint had been filed, when in fact the amended complaint had been rejected.

Respondent’s failure to participate in the disciplinary proceedings reflects his indifference

to making restitution, thereby implicating factor (j). See Thomas, 440 Md. at 557

(concluding that the respondent’s failure to participate in the disciplinary proceedings

demonstrated an indifference to making restitution). There are no mitigating factors on

this record for us to consider because Respondent declined to participate in the disciplinary

proceedings in any way. See id.

Respondent’s professional misconduct, exacerbated by a number of aggravating

factors and absent any facts in mitigation, is deserving of the ultimate sanction. We

consequently issued a Per Curiam Order disbarring Respondent on September 29, 2015.

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