IN THE COURT OF APPEALS

OF MARYLAND

Misc. Docket AG

No. 5

September Term, 2003

ATTORNEY GRIEVANCE COMMISSION

OF MARYLAND

v.

JOSEPH C. ASHWORTH

Bell, C.J.

Raker

Wilner

Cathell

Harrell

Battaglia

Greene

JJ.

Opinion by Bell, C.J.

Filed: June 9, 2004

1Maryland Rule 16-751, as relevant, provides:

"(a) Commencement of disciplinary or remedial action. (1) Upon approval

of the Commission. Upon approval or direction of the Commission, Bar Counsel

shall file a Petition for Disciplinary or Remedial Action in the Court of Appeals."

2Rule 1.4 provides:

"(a) A lawyer shall keep a client reasonably informed about the status of a

matter and promptly comply with reasonable requests for information.

"(b) A lawyer shall explain a matter to the extent reasonably necess ary to

permit th e client to make inform ed decisions regarding the rep resentation."

3Rule 1.5 p rovides, as re levant:

"(a) A lawyer's fee shall be reasonable. T he factors to be considered in

determining the reasonableness of a fee include the following:

"(1) the time and labor require d, the nove lty and difficulty of the

questions involved, a nd the skill requisite to perform the legal

service properly;

"(2) the likelihood, if apparent to the client, that the acceptance

of the particular employment will preclude other employment by

the lawyer;

"(3) the fee customarily charged in the locality for similar legal

services;

"(4) the amount involved and the results obtained;

"(5) the time limitations imposed by the client or by the circumstances;

"(6) the nature and length of the professional relationship with the

client;

"(7) the experience, reputation, and ability of the lawyer or lawyers

performing the services; and

"(8) whether th e fee is f ixed or conting ent."

4Rule 1.15 provides:

"(a) A lawyer shall hold property of clients or third persons that is in a

The Attorney Grievance Commission of Maryland, the petitioner, by Bar Counsel,

acting pursuant to Maryland Rule 16-751,1 filed a Petition For Disciplinary or Remedial

Action against Joseph C. Ashworth, the respondent. The petition charged that the

respondent violated Rules 1.4, Communication,2 1.5, Fees,3 1.15 , Safekee ping prop erty,4 8.1,

lawyer’s possession in connection with a representation separate from the

lawyer’s own pro perty. Funds sh all be kept in a separate account maintained

pursuant to Title 16, Ch apter 600 o f the Ma ryland Rules. O ther proper ty shall

be identified as such and ap propriately safeguarded. Co mplete records of

such account funds and of other property shall be kept by the lawyer an d shall

be preserved for a period of five years after termination of the representation.

"(b) Upon receiving funds or other property in which a client or third person

has an interest, a law yer shall promp tly notify the client or third perso n.

Except as stated in this Rule or otherwise permitted by law or by agreement

with the clien t, a lawyer shall promptly deliver to the client or third person any

funds or other property that the client or third person is entitled to receive and,

upon request by the client or third pe rson, shall promptly render a full

acco unting regarding such prop erty.

"(c) When in the course o f represen tation a lawyer is in possession of prope rty

in which b oth the law yer and anoth er person claim interests, the pro perty shall

be kept separate by the lawyer until there is an accounting and severance of

their interests. If a dispute arises concerning their respective interests, the

portion in dispute shall be kept separate by the lawyer until the dispute is

resolve d."

5Rule 8.1 p rovides, as re levant:

"An applicant for admission or reinstatem ent to the bar, or a lawyer in

connection with a bar admission application or in connection with a

disciplinary ma tter, shall not:

* * * *

"(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."

6Rule 8.4, as relevant, provides:

"It is professio nal miscon duct for a la wyer to:

* * * *

"(b) commit a criminal act that reflects adversely o n the lawyer’s honesty,

trustworthiness or fitness as a lawyer in other respects;

"(c) engage in conduct involving dishonesty, fraud, deceit or

2

Bar Admission and Disciplinary Matters,5 and 8.4, Misco nduct,6 of the Maryland Rules of

misrepresentation;

"(d) engage in conduct that is p rejudicial to the administration of justice."

7The petitioner also charged that the respondent "assist[ed] a person who is not a

member of the bar in the performance of activity that constitutes the unauthorized practice

of law ," in viola tion of R ule 5.5 (b), but w ithdrew it during the evid entiary hearing.

8Rule 16-752 (a) provides:

"(a) Order. Upon the filing of a Petition for Disciplinary or Remedial Action,

the Court of Appeals may enter an order designating a judge of any circuit

court to hear the action and the clerk responsible for maintaining the record.

The order of designation shall require the judge, after consultation with Bar

Counsel and the attorney, to enter a scheduling order defining the extent of

discovery and settin g dates for the com pletion of discovery, filing of motions,

and hearing."

9Maryland Rule 16-757 (c) provides:

"(c) Findings and conclusions. The judg e shall prepa re and file o r dictate into

the record a statement of th e judge's findings o f fact, includ ing finding s as to

any evidence regarding remedial action, and conclusions of law. If dictated

into the record, the statement shall be promptly transcribed. Unless the time is

extended by the Court of Appeals, the written or transcribed statement shall be

filed with the clerk responsible for the record no later than 45 days after the

conclusion of the hearing. The clerk shall mail a copy of the statement to each

party."

10The disciplinary hea ring in this case initially was scheduled, w ith the consent of the

parties, for September 30, 20 03. On September 4, 2003, the respondent, through counsel

filed for bankruptcy, pursuant to Chapter 13 of the Bankruptcy Code, 11 U.S.C. § 1301 et

seq., and subsequently, on September 22, 2003, filed a Suggestion of Stay, pursuant to § 362

(a) of that Code. The respondent also filed, in proper person, a motion for continuance of

up to thirty days to obtain counsel in the disciplin ary proceedings. Opposing any delay, the

3

Professional Conduct, as adopted by Maryland Rule 16-812.7

We referred the case, pursuant to Rule 16-752 (a),8 to the Honorable Sean D. Wallace,

of the Circuit Court for Prince George’s County, for hearing pursuant to

Rule 16-757 (c).9 Following a hearing,10 at which the respondent appeared and participated,

petitioner filed an Emergency Motion To Direct The Circuit Court For Prince George’s

County To Proceed Pursuant To Maryland Rule 16-757 In That A ttorney Disciplinary

Proceedings Are Exempt Pursuant To 11 U.S.C. § 362 (b) (4). After the respondent

answered the motion, this Court postponed the pending disciplinary hearing and scheduled

a hearing on the suggested stay. Following that hearing, we ordered the disciplinary

proceeding to proceed and the hearing to be rescheduled.

We reject the resp ondent’s argument that the autom atic stay provided for by 11 U.S.C.

362 (a) applies to these proceedings. To be sure, pursuant to § 362 (a) (1), as a general rule,

the filing of a Chapter 13 bankruptcy petition operates as an automatic stay of administrative

proceedings against the debtor. On the other hand, 11 U.S.C. § 362 (b) sets forth exceptions

to that genera l rule of automatic stay. Section 362 (b) (4), relevant to this case, for example,

provides:

"(b) The filing of a petition ... does no t operate a s a stay–

* * * *

"(4) under paragraph (1) ... of subsection (a) of this section, of

the commencement or continuation of an action or proceeding

by a governmental unit ... to enforce such governmental unit’s

... police and regulatory power, including the enforcement of a

judgment other than a money judgment, obtained in an action or

proceeding by the governmental unit to enforce such

governmental un it’s ... police or regulatory power[.]"

This provision has been interp reted uniformly to exemp t disciplinary proceedings from the

automatic stay of § 3 62 (a). See In re Wade, 948 F.2d 1122, 1124 (9th Cir. 1991); In re

Friedman & Shapiro, P.C., 185 B.R. 143, 145 (S.D.N.Y . 1995); In re McAtee, 162 B. R. 574,

577-78 (N .D. Fla. 199 3); In re Williams, 158 B.R. 488, 491 (Bankr. D. Idaho 19 93); In re

Haberman, 137 B.R. 292, 294-94 (Bankr. E.D. Wis.1992); In re Fitch, 123 B.R. 61, 63

(Bankr. D. Idaho 1991); In re Hanson, 71 B.R. 193, 194 (B ankr .E.D . Wis. 1987 ); Cooper

v. State Bar, 741 P.2d 206, 211 (1987); Risker v. Commission For Lawyer Discipline, 94

S.W.3d 625, 63 2 (Tex. App., 200 2).

The respondent attempts to restate the question, urging that it is whether a law license

represents property of the bankruptcy estate. He argues that if it is, "then no action at all may

proceed to deprive its holder and the estate of its value." The respondent also argues that

this disciplinary proceeding is the alter ego of a civil action filed in St. Mary’s C ounty Circuit

Court by the complainant in this case against the respondent. Suffice it to say that we have

addressed and answered the pertinent question. A civil action against an attorney by that

attorney’s client is n ot, and c an not, b e the alte r ego of disciplin ary proceedings.

4

the hearing court found facts by the clear and convincing standard and drew conclusions of

11After approving the final demand letter, the com plainant ask ed the respo ndent to

delay sending the letter until he had received his executive supplemental paycheck, a request

with which the respondent complied.

5

law, as follows.

Roger Seltz, the complainant, on July 18, 2001, consulted the respondent in

connection with a contract disp ute he had with his former employer, ManTech International

("ManTech"). The wr itten retainer ag reement he entered in to with the respondent provided

that the respondent would provide the required legal services "for an agreed initial retainer

of $ 2000.00," and that those services would commence "when A ttorneys receive the

complete payment of $ 2000.00 which will be billed at $ 150.00 per hour." The retainer

agreement also provided:

"If this matter requires litigation, we will obtain anoth er retainer agreement.

... If and when it becomes apparent that the above amount for fees and

expenses will be exceeded under this agreem ent, an additional sum will be set

by attorne ys."

The complainant paid the respondent the retainer and an initial consultation fee of

$150.00. Rather than placing the retainer in his escrow account, where the respondent

concedes it should ha ve gone, th e respond ent placed it in his operating account.

After reviewing the documentation he had received from the complainant and

receiving from the complainant approval of a draft that he had been asked to review,11 the

respondent sent a demand letter to ManTech on or ab out Au gust 17 , 2001. Accepting the

invitation contained in the ManTech response, the respondent and the complainant met with

6

ManTech representatives on October 23, 2001 to discuss the claims. The meeting lasted

three to four hours and, although, according to the complainant, the respon dent "did a very

good job" of advocating his position, no settlement was reached. The complainant’s demand

of $ 150,000.00 was met with a counter-offer of only $ 40,000.00.

Following the meeting , the comp lainant advised the resp ondent tha t "I would like to

give ManTech my final demand for $ 150,000, or we will sue. If we sue, we should depose

the minimum following people ... lets call their bluff." Thereafter, in early December, 2001,

the respondent prepared a draft complaint that h e asked the com plainan t to review. When

they met a few days later to discuss the draft, they also consid ered in mo re detail wh at would

be involved in the litigation process and a new fee arrangement. As to the latter, the

respondent indicated that he wanted a thirty three percent share should the case go to

litigation, which, at that time, the complainant thought was fair. At the conclusion of the

meeting, the complainant expected the complaint to be filed and to be presented with a "new"

contingen cy fee agreem ent.

The day after that meeting, presumably because the complainant had "flashed the

complaint" to a ManTech official he "ran into," ManTech’s attorney telephoned the

respondent, leaving a message, followed up by a fax, indicating that "ManTech would like

to revise its offer to resolve this dispute with your client," and asking that the respondent

return the call as soon as possible. Although the respondent received the fax the next day,

he neither advised the complainant of its receipt nor provided him with a copy. The

6

ManTech representatives on October 23, 2001 to discuss the claims. The meeting lasted

three to four hours and, although, according to the complainant, the respon dent "did a very

good job" of advocating his position, no settlement was reached. The complainant’s demand

of $ 150,000.00 was met with a counter-offer of only $ 40,000.00.

Following the meeting , the comp lainant advised the resp ondent tha t "I would like to

give ManTech my final demand for $ 150,000, or we will sue. If we sue, we should depose

the minimum following people ... lets call their bluff." Thereafter, in early December, 2001,

the respondent prepared a draft complaint that h e asked the com plainan t to review. When

they met a few days later to discuss the draft, they also consid ered in mo re detail wh at would

be involved in the litigation process and a new fee arrangement. As to the latter, the

respondent indicated that he wanted a thirty three percent share should the case go to

litigation, which, at that time, the complainant thought was fair. At the conclusion of the

meeting, the complainant expected the complaint to be filed and to be presented with a "new"

contingen cy fee agreem ent.

The day after that meeting, presumably because the complainant had "flashed the

complaint" to a ManTech official he "ran into," ManTech’s attorney telephoned the

respondent, leaving a message, followed up by a fax, indicating that "ManTech would like

to revise its offer to resolve this dispute with your client," and asking that the respondent

return the call as soon as possible. Although the respondent received the fax the next day,

he neither advised the complainant of its receipt nor provided him with a copy. The

7

respondent did return ManTech’s call. There were no discussions of settlement proposals

or counter-proposals during that call; it involved "just ManTech’s desire to have further

settlement conversations after the attorney talked to his ‘operational people.’"

Subsequently, the respondent prepared a contingency fee agreement for the

complainant to execute. H is office ap prised the complainant of the intention to file the

complaint he had previously reviewed and requested that the complainant come into the

office and review and sign the fee agreement. The fee agreement, the comp lainant wa s told

and the complainant believed, "called for a contingency fee of 25 percent before suit was

filed or 33 percent after it was filed." In fact, the fee agreement contained a typographical

error, the inclusion of the word, "not" in the pro vision relating to the percentage recovery

before filing suit. Read literally, that provision "provides that the ‘amount of the fee

received by Attorneys will be twenty-five percent (25%) of any sums received if the matter

is not resolved prior to litigation.’" Deletion of the word, "not" results in the agreement

reflecting both parties’ understanding.

The complainant read and signed the fee agreement. Although he received a copy

of the agreement he signed, he never received a fully executed one, as the respondent

promised he would provide.

A subsequent discussion between the respondent and ManTech’s counsel re sulted in

the scheduling of another settlement mee ting and, although neither had settlement auth ority,

they explored the general "ranges at which the ir clients migh t be willing to settle." After the

8

respondent advised the complainant of the sc heduled settlement m eeting, the complainant

had second though ts about paying a 25 perc ent contingency fee. He indicated that if

ManTech was willing to negotiate, the respondent should be entitled to 25 percent only if the

settlement amount was $ 180,000.00, an amount more than he was e ntitled to receive, rather

than the $ 150,000.00 demanded. The respondent did not agree.

The respondent and the complainant met to discuss the contingency fee prior to the

settlement meeting. At that time, the complainant had rethought his agreement to pay the

respondent a 25 percent continge ncy fee. During their preliminary meeting, the complainant

expressed his intention to "unequivocally revok[e]" the contingency fee agreement and to pay

the responde nt a flat fee c onsistent w ith a sliding scale he had developed prior to the meeting.

The respondent did not agree, standing instead on the written agreement that the complainant

had executed. He also advised the complainant of his right to discharge him. Noting that

he wanted the respondent to represent him at the settlement meeting, the complainant and the

respondent shook hands and the respondent continued to represent the complainant at the

settlement meeting both parties subsequently attended.

After con sidering numerous proposals and counter-proposals, the parties settled for

$104,000.00. The settlement agreement provided that "each party would pay its own

counsel fees and e xpenses a nd that the se ttlement amount would be paid "by check made

jointly payable to [the complainant] and [the respondent]." ManTech sent the settlement

check, payable as ag reed, to the respondent. He deposited the check in h is escrow a ccount,

9

without obtaining the complainant’s signatu re. The bank negotiated the check, nevertheless.

When the complainant received a check from the respondent in the amount of

$78,0000.00, along with a letter indicating that he had deducted his 25 percent contingency

fee, which constituted the only billing statement, breakdown of hours, or written justification

or explanation of the fee charged that the respondent provided the complainant, the

complainant contacted the responde nt to protest. They agreed to mee t to discuss the matter.

Although the respondent advised the complainant that he should have counsel, the

complainant attended the meeting unrepresented. No agreement was reached; the

respondent rejected the complainant’s position that he could, and did, revoke, the

contingency agreement. Maintaining that the agreement was binding, he advised the

complainant, "I have the check in escrow and I ca n wait." The complainant later negotiated

the settlement check, but only after putting the respondent on notice that he was not thereby

accepting the validity of the contingency fee agreement. Subsequently, the respondent

withdrew from the escrow account $10,000.00 of the disputed $26,000.00 fee. He made

subsequent withdrawals against that amount after the complainant filed this com plaint with

the petitioner and after the respond ent had, in response to the p etitioner’s inquiry about the

complaint, stated: "this case is nothing more than a clear and bitter dispute over fe es ... . I am

willing, however, to have this fee dispute resolved through binding arbitration administered

by the Maryland Bar Association."

The respondent spoke with the petitioner’s investigator concerning his handling of the

10

fees charged the complainant. In response to the investigator’s inquiry, he said that he had

deposited the initial retainer in his escrow account and that he kept the disputed $26,000.00

fee in that account. The respondent promised to, but did not, provide rec ords to substantiate

those claims.

Based on these fin dings, the he aring court concluded that the respondent violated

Rules 1.4, 1.15, 8.1 and 8 .4 (c) and (d).

The Rule 1.4 violation was based solely on the respondent’s failure to advise the

complainant "of the status of his in itial $2,000.00 retainer at any time, and most especially

at the time w hen the fee was conv erted to a conting ency arrangement." Noting that "the new

terms were clea rly understood and agree d to by the client when he signed the second retainer

agreement," the hearing court expre ssly did not find that the respon dent’s violation pertained

to the change of fee agreement. Nor was the hearing court convinced that the respondent

failed to communicate to the complainant developm ents in the negotiation with ManTech.

By depositing th e initial retainer in his opera ting accou nt, rather than th e escrow account,

and, although c orrectly deposited in the escrow account, by making disbursements from the

disputed contingency fee, knowing that it was disputed, the hearing court determined that the

respondent violated Rule 1.15 (a) and (c). His failure to notify the complainant when the

settlement check was received constituted, it concluded, a violation of section (b) of that

Rule. The hearing court rejected the petitioner’s argument that the responde nt’s failure to

provide an accou nting also co nstituted a vio lation of Rule 1.15 (b), pointing out that "no

11

request was made for such an accounting as is required by the Rule."

The hearing court found a violation of Rule 8.1 because the respondent did not

provide the investiga tor with the in formation he requested and which the respondent

promised to deliver, thus, "failing to respond to [his] verbal and written requests for

information. As indicated, the respondent told the com plainant and the petitioner’s

investigator that he was holding the disputed fee in escrow, when that was not the case. The

hearing court concluded that, "since these statements were factually incorrect and the

Respondent knew or should have known that they were incorrect," by making them, the

respondent violated Rule 8.4 (c). He violated Rule 8.4 (d) "by not holding the disputed

funds in escrow and, thus making them unavailable upon any resolu tion of th at dispu te."

Nevertheless, the hearing court emphasized that it did not find that the respondent violated

the provision in any other regard.

Both the petitioner and the respond ent have taken exc eptions. The petitioner’s

exception challenges the hearing court’s failure to find a violation of Rule 1.5 (a). A fee of

$26,000.00 was unreasonable, it argues, because "[t]he only services provided after the

contingency fee agreement was signed on December 13, 2001, were for Resp ondent’s

conferences with the Complainant and the Respondent’s attendance at one meeting with the

former employer’s representatives on Decem ber 19, 2001, wh ich, according to Resp ondent’s

records, lasted appro ximately 3.7 hours." The petitioner concludes that, although perhaps

not unreasonable when signed, it became unreasonable when the matter settled with in days

12

of the new agreement and w hen the conting ency, litigation, did not occ ur.

In concluding that Rule 1.5 (a) had not been violated, the hearing court reasoned:

"Bar counsel’s argument ignores the reality that attorneys w ith excellent sk ills

and reputations often can obtain satisfactory settlements with the e xpenditure

of less effort than those lawyers without such reputation and skill. The cou rt

rejects those arguments and concludes that Respondent did not charge an

unreasonable fee.

"Rule 1.5 provides that in determining the reasonableness of the fee, a

number of factors are to be considered beyond simply the time and labor

required. Among those factors relevant in this case are: the skill requisite to

perform the legal services properly; the fee customarily charged in the locality

for similar legal services; the amount involved and the results obtained; the

experience, reputation, and ability of the lawyer performing the services; and

whether the fee is fixed or contingent. In this case, Respondent had over

twenty years of experience, specializing mainly in labor and employment law.

The client retained him because of that expertise. Respondent ably represented

his client in preparing both a lengthy, detailed demand letter and a draft

complaint, both of which brought ManTech to the settlement table. At two

settlement negotiations sessions, respondent strongly advocated for his client,

and ultimately, was a ble to obtain a satisfactory settlem ent for his clie nt. A

twenty-five percent contingency fee for cases of this type is both customary

and reasonable. Thus the court concludes that Respo ndent did n ot violate this

provisio n by charging an unreasonable fee."

We agree. The petitioner’s exception is overruled.

The respondent’s exceptions are to both the hearing court’s findings of fact and

conclusions of law. W ith respect to the former, while not excepting to the finding that the

retainer was improperly deposited in the respondent’s operating account, but noting that the

hearing court made "no specific finding regarding why," he submits that the testimony

indicates that the improper deposit was made in error, not intentionally. Conceding that the

information requested b y the petitioner’s investigator w as not timely provided, the

12The respondent moved, by motion filed on May 5, 2004, to remand these

proceedings to the Circuit Court "for consideration of new evidence in mitigation of the

allegations raised in this matter, specifically new evidence that the Respondent suffered from

13

respondent maintains that it was provided during the course of the disciplinary proceedings.

He argues, therefore, that "the finding that the information was ‘never provided’ is not

supported by the eviden ce."

The respondent’s exception to the hearing court’s conclusion of law relates to the

conclusion, with respect to Rule 1.15 (b), that the complainant was not notified of the receipt

of the settlement check. His complaint is that because there was testimony that the

respondent told his office manager to contact the complainant and have him sign the check,

the office manager testified that she called him, and there was a conversation with the

complainant within seven days of the check’s receipt, "the evidence fails to sustain by clear

and convincin g evide nce a violation of Ru le 1.15 (b)."

There is ample evidence to support the findings of fact made by the hearing court and,

just as important, those factual findings justify the conclusions drawn from them.

Exceptions will be overruled w hen the finding s are not clearly erroneous. Attorney

Grievance Comm’n v. McCoy, 369 Md. 226, 235, 798 A.2d 1132, 1137 (2002). See

Attorney Grievance. Comm'n v. Garland, 345 Md. 383, 392, 692 A.2d 465, 469 (1997)

(citing Attorney Grievance. Comm'n v. Goldsborough, 330 Md. 342, 347, 624 A.2d 503, 505

(1993)).

Turning to the question of the appropriate sanction,12 both the petitioner and the

mental illness at the time that the facts in this case occurred." The motion is denied.

14

respondent offer a recommendation. The petitioner believes that disbarment is the required

sanction. In support of its recommendation, it submits:

"The Respondent engaged in dishonest and deceptive conduct w ith regard to

the disputed fee, failed to hold those funds in trust as required by the Maryland

Rules of Professional Conduct and was untruthful when questioned about the

funds. Respondent failed to respond to lawful demands for information from

Bar Counsel’s off ice. This [C ]ourt has held on num erous occasions that

intentional dishonest conduct will result in disbarment absent compelling,

extenuating circumstances. The Respondent presented no evidence which

would constitu te mitiga tion. Attorney Grievance Commission v. Vanderlinde,

364 Md. 376, 4 18, 773 A. 2d 4 63, 488 (2001)."

The respondent, on the other hand, argues for an indefinite suspension with the right

to reapply after a short period, in 60 days. He supports his argument by pointing o ut that:

"This case is not one of blatant misappropriation or one where there is a

pattern o f deceitful con duct. The conduct here, except arguably for the two

misstatements, does not involve violations arising from deliberation and

calculation, where the result achieved was intended, which makes [the

respondent’s] a ctions less culpa ble for p urposes of san ctions."

The respondent also submits that his improper deposit of the retainer was an error, not

intentional, which is relevant on the issue of the sanction for misappropriation. Moreover,

although condoning the violation, the respondent con tends that there was no injury caused

by his failure to comply with Rule 1.15 (c). This is so, he says, because, in essence, by

determining that the contingency fee charge was not unreasonable and that the agreement

was not unreasonable, the hearing court found that the complainant owed the fee.

Conceding the existence of aggravating circumstances, he has twice been reprimanded, he

13The respondent specifically references Attorney Grievance Comm’n v. Braskey, 378

Md. 425, 461, 836 A.2 d 605, 62 7 (2003); Attorney Grievance Comm’n v. Ca fferty, 376 Md.

700, 831 A.2d 1042 (2 003); Attorney Grievance Comm’n v. Gallagher, 371 Md. 673, 810

A.2d 996 (200 2); Attorney Grievance Comm’n v. Lane, 367 Md. 633, 648, 790 A.2d 621,

629 (2002); Attorney Grievance Comm’n v. McLaughlin, 372 Md. 467, 499-501, 813 A.2d

1145, 1164-65 (2002); Attorney Grievance Comm’n v. Vanderlinde, 364 Md. 376, 773 A.2d

463 (2001); Attorney Grievance Comm’n v. Wallace, 368 Md. 277, 293, 793 A.2d 535, 545

(2002).

15

points out that "[n ]either involved dishonesty or the integrity of escrow acco unts." In

addition, the violations here concern one client and one case, a factor that should be

considered mitigating, and do not am ount to or ap proach the conduct in the cases tha t this

Court has recently determ ined to be su ch as to w arrant disbarment.13

The purpose o f attorney discip linary proceed ings is well se ttled: to protect the public

and not to punish the errin g attorney. See Bar Ass'n of Baltimore City v. M arshall, 269 Md.

510, 519, 307 A.2d 677, 682 (1973), in which, thirty years ago, we stated "that the purpose

of disciplinary action s ... is not to punish the offending attorney, as that function is performed

in other types of legal proceedings, but it is to protect the public from one who has

demonstrated his unw orthiness to con tinue the practice of law ." More recently, we stated

the rule in Attorney Grievance Comm’n v. Davis, 375 Md. 131, 166-67, 825 A. 2d 430, 451

(2003). There, we opined:

"Our consideration of the appropriate disciplinary measure to be taken in any

given case involving violation of the Rules of Profe ssional Co nduct is guided

by our interest in protecting the public and the public’s confidence in the legal

profession. Attorney Grievance Comm’n v. Powell, 369 Md. 462, 474, 800

A.2d 782, 789 (2002). The purpose of such proceedings is not to punish the

lawyer, but should deter other lawyers from engaging in similar conduct.

16

[Attorney Grievance Comm’n v.] Mooney, 359 M d. [56,] 96, 753 A.2d [ 17,]

38 [2000]. The public is p rotected when we impose sanctions that are

commensurate with the nature and gravity of the violations and the intent with

which they were committed. Attorney Grievance Comm’n v. Awuah, 346 Md.

420, 43 5, 697 A .2d 446 , 454 (1997)."

It is equally well settled that the decision whether to impose a sanction in a particular

case and, if so, what the sanction should be, does, and must, depend on the facts and

circumstances of that c ase. That decision is informed and gu ided, how ever, by certain

factors: "the nature and gravity of the violations and the intent with w hich they were

committed." Awuah, 346 Md. at 435, 69 7 A.2d at 454. See Attorney Grievance Comm’n

v. Pennington, 355 Md. 61, 77-78, 733 A.2d 1029, 1037-38 (199 9); Attorney Grievance

Comm’n v. Milliken, 348 Md. 486, 519, 704 A.2d 1225, 1241 (1998); Attorney Grievance

Comm’n v. Montgom ery, 318 Md. 154, 165, 567 A.2d 112, 117 (1989); the attorney's prior

grievance history, including whether there have been prior disciplinary proceedings, the

nature of the misconduct involved in those proceedings and the nature of any sanctions

imposed, as well as any facts in mitigation, Attorney Grievance Comm’n v. Franz, 355 Md.

752, 762, 736 A.2d 339, 344 (19 99); Maryland State Bar Ass'n v. Phoebus, 276 Md. 353,

362, 347 A.2d 556, 561 (1975); w hether the a ttorney is remors eful for the misconduct,

Attorney Grievance Comm’n v. Wyatt, 323 Md. 36, 38 , 591 A.2d 467 , 468 (1991), and the

likelihood of the conduct being repeated. Attorn ey Grievance Comm’n v. Freedman, 285

Md. 298, 300, 402 A.2d 75, 76 (1979). With respect to the latter factor, the likelihood of

recidivism, we have held that the voluntary termination of the charged misconduct, when

17

accompanied by an appreciation of the impropriety of having engaged in it and remorse for

having done so, may be evidence that the attorne y will not again engage in such misc onduct.

Freedman, 285 Md. at 300, 402 A.2d a t 76. See Attorney Grievance Comm’n v. McClain,

373 Md. 196, 211-12, 817 A.2d 218, 227-28 (2003); Franz, 355 Md. at 762, 736 A.2d at

344. See also Attorney Grievance Comm’n v. Harris-Sm ith, 356 Md. 72, 90 - 91, 737 A.2d

567, 577 (1999) (acknow ledging the principal ob jective of san ction in that case, deterrence

of other non-admitted attorneys from undertaking a federal practice from an office in

Maryland, was achieved w hen the firm dissolved after bar counsel's investigation

commenced).

To be sure, the conduct in which the respondent was found to have engaged and the

rule violations it was found to constitute are quite serious and can n ot be condoned , however,

neither the conduct nor the rule violations rises to the level of the conduct or the violations

warranting disbarment. The Rule 8.4 violations were found because of the responden t’s

misrepresentation of the status of disputed funds, because he advised the complainant and

Bar Counsel that they were in escrow when he knew they were no t and because he did not

so hold them as h e should have done. The hearing court rejected, however, the argument

that the respondent engaged in misconduct - misleading the complainant regarding the status

of settlement negotiations and obtaining a new settlement agreement - to "capitalize on the

situation." Finding that argument to be unsupported by the evidence, it found:

"Respondent did advise the client of the negotiation developments and that the

second fee agreement was entered into by the parties fo r their mutua l benefit

18

in light of the circumstances. Respondent’s efforts un der the initial ho urly

agreement had not achieved settlement an d the client w as unwilling to expend

any more m oney in advanced fees. There was no assurance that settlement

would be achieved in the ne ar future, and there was a good possibility that

substan tial time a nd effort would be required in pursu ing litigation."

Furthermore, while the hearing court found a violation of Rule 1.15 (b) when the respondent

did not advise the complainant of the receipt of the settlement check, it rejected the

petitioner’s contention that the failure of notice and the failure to obtain his endorsement

were "motivated by fraud or dishonesty." And the hearing court, as the respondent argues,

found that the respondent was entitled to the disputed fe e, which it determined not to be

unreasonable and to have been a ppropriately charged in a contingency fee agreement that

was negotiate d and v oluntarily signed b y the com plainan t.

Under the circumstances, the appropriate sanction is an indefinite suspension from the

practice of law.

IT IS SO ORDERED; RESPONDENT SHALL

PAY ALL COSTS AS TAXED BY THE CLERK

OF THIS COURT, INCLUDING COSTS OF

ALL TRANSCRIPTS, PURSUANT TO

MARYLAND RULE 16-761, FOR WHICH

SUM JUDGMENT IS ENTERED IN FAVOR

19

OF THE ATTORNEY GRIEVANCE

COMMISSION AGAINST JOSEPH C.

ASHWORTH.