Attorney Grievance Commission of Maryland v. Samuel Sperling and Jonathan Daniel
Sperling, Miscellaneous Docket AG Nos. 40 & 76, September Term, 2016

ATTORNEY DISCIPLINE – SANCTIONS – 90-DAY SUSPENSION

Respondent Samuel Sperling violated the Maryland Lawyers’ Rules of Professional
Conduct (“MLRPC”) in his capacity as an attorney employed by The Sperling Law Firm
(“Firm”), a professional corporation owned and controlled by his father, Leonard Sperling.

The Attorney Grievance Commission of Maryland (“AGC”) contacted Samuel after the
Firm’s trust account was overdrawn. At the time, both Leonard and Samuel’s brother,
Respondent Jonathan Sperling, had been suspended from the practice of law. The AGC
reviewed the account information and discovered that Jonathan had been writing checks
on the trust account. Upon suspicion that Leonard and Jonathan continued to practice law
despite their suspensions, and that all three Sperlings were engaged in misconduct, the
AGC sought and received a temporary restraining order prohibiting the Firm from further
operation and appointing a temporary receiver. The AGC discovered that Leonard had
continued to practice law after his suspension, settled cases, and misappropriated
substantial client funds. The trust account had been badly mismanaged, and numerous
Firm clients were referred to the Client Protection Fund. Samuel had agreed to supervise
Jonathan following his suspension but was apparently unaware of his brother’s use of the
trust account and, although he placed client funds in the trust account, did not review
account statements or reconcile the accounts.

Samuel violated: (1) MLRPC 1.15(a) (Safekeeping Property); MLRPC 5.3(b), (d)(2)(F),
and (d)(3) (Responsibilities Regarding Nonlawyer Assistants) as to Jonathan; (3) MLRPC
5.4(d)(1) (Professional Independence of a Lawyer); and MLRPC 8.4(a) (Misconduct) when
he failed to safeguard client funds and did not adequately supervise Jonathan’s post-
suspension conduct. Taken together, Samuel’s violations warrant a 90-day suspension
from the practice of law.

ATTORNEY DISCIPLINE – SANCTIONS – INDEFINITE SUSPENSION

Respondent Jonathan Sperling violated the MLRPC in his capacity as a paralegal and
suspended lawyer seeking reinstatement. Jonathan was indefinitely suspended from the
practice of law in Maryland in 2013. While seeking readmission to the Bar, Jonathan
submitted numerous affidavits and statements to the AGC attesting to his compliance with
the Rules. Before his suspension, Jonathan represented Luvenia Jeter in a dispute with a
local college regarding Jeter’s dismissal from a nursing program. Luvenia Jeter
complained to the AGC that Jonathan neglected her matter, accepted payment without
doing any work on her case, and failed to notify her when he stopped working on the case.
When the AGC investigated the matter, it found reason to believe that Jonathan violated
the MLRPC. The AGC also concluded that Jonathan made several misrepresentations in
his efforts to gain readmission to the Bar following his suspension in 2013, in violation of
the MLRPC.

Jonathan violated: (1) MLRPC 5.3(d)(3) (Responsibilities Regarding Nonlawyer
Assistants); (2) MLRPC 8.1(a) (Bar Admission and Disciplinary Matters); and (3) MLRPC
8.4 (a), (c) and (d) (Misconduct) when he failed to comply with his obligations as a
suspended lawyer working in a law firm and made misrepresentations during his
suspension and in his efforts to gain readmission to the Bar. Taken together, these
violations warrant continuing his indefinite suspension.
Circuit Court for Baltimore County
Case No.: 03-C-16-010146
Argued: March 5, 2018
                                         IN THE COURT OF APPEALS

                                                OF MARYLAND



                                         Misc. Docket AG Nos. 40 and 76

                                              September Term, 2016



                                     ATTORNEY GRIEVANCE COMMISSION
                                             OF MARYLAND

                                                         v.

                                           SAMUEL SPERLING and
                                        JONATHAN DANIEL SPERLING



                                                   Barbera, C.J.
                                                   Greene
                                                   Adkins
                                                   McDonald
                                                   Watts
                                                   Hotten
                                                   Getty,

                                                      JJ.



                                              Opinion by Adkins, J.
                                     Greene and Watts, JJ., concur and dissent.


                                              Filed: May 21, 2018
       In 2016, the Attorney Grievance Commission of Maryland (“AGC”), acting through

Bar Counsel, filed a Petition for Disciplinary or Remedial Action (“Petition”) against

Respondents Samuel Sperling and Jonathan Daniel Sperling.1 The AGC’s investigation

began in 2014 after it received notice that The Sperling Law Office, P.C.’s (“Firm”) trust

account was overdrawn.2

       Bar Counsel charged Samuel with violating the Maryland Lawyers’ Rules of

Professional Conduct3 (“MLRPC”) in his capacity as an attorney working at the Sperling

Law Office, P.C. (“Firm”).         Specifically, Bar Counsel alleged that Samuel violated

MLRPC: (1) 1.15(a) and (d) (Safekeeping Property); (2) 5.3(a)–(d) (Responsibilities

Regarding Nonlawyer Assistants); (3) 5.4(a) and (d) (Professional Independence of a

Lawyer); (4) 5.5(a) (Unauthorized Practice of Law; Multijurisdictional Practice of Law);

(5) 8.1(a) and (b) (Bar Admission and Disciplinary Matters); and (6) 8.4(a)–(d)

(Misconduct).

       Bar Counsel charged Jonathan with violating MLRPC: (1) 1.1 (Competence); (2)

1.2(a) (Scope of Representation and Allocation of Authority Between Client and Lawyer);

(3) 1.3 (Diligence); (4) 1.4(a)–(b) (Communication); (5) 1.5(a)–(b) (Fees); (6) 1.16(d)


       1
           For clarity, the Sperlings will hereinafter be referred to by their first names.
       2
          The Attorney Grievance Commission filed a separate Petition for Disciplinary or
Remedial Action against Jonathan in 2017, stemming from a complaint filed by Luvenia
Jeter, a former client of Jonathan’s. By Order of this Court, the matters were consolidated.
       3
        Effective July 1, 2016, the MLRPC were renamed the Maryland Attorneys’ Rules
of Professional Conduct (“MARPC”) and renumbered. Rules Order (June 6, 2016). The
revised rules are now numbered as follows: MARPC 19-301.1, et. seq. We will refer to
the MLRPC because the misconduct at issue occurred before this change.
(Declining or Terminating Representation); (7) 5.3(d)(3) (Responsibilities Regarding

Nonlawyer Assistants); (8) 8.1(a)–(b) (Bar Admission and Disciplinary Matters); and (9)

8.4(a)–(d) (Misconduct).

      We transmitted the matter to the Honorable H. Patrick Stringer (“the hearing judge”)

of the Circuit Court for Baltimore County to hear the case. Following a five-day hearing,

the hearing judge issued Findings of Fact and Conclusions of Law, in which he found by

clear and convincing evidence that Samuel violated MLRPC 1.15, 5.3(b) and (d)(3),

5.4(d)(1), and 8.4(a). The hearing judge also concluded that Jonathan violated MLRPC

5.3(d)(2)(G) and (d)(3), 8.1(a), and 8.4(a) and (c), and Maryland Rules 16-760(c)(11),

(d)(3), and 16-609(b).4

                   THE HEARING JUDGE’S FINDINGS OF FACT

      Samuel was admitted to the Maryland Bar in 1996, and Jonathan was admitted in

1998. Upon admission, both brothers began working as associates at a law firm operated

as a sole proprietorship by their father, Leonard Sperling (“Leonard”). In March 2004, the

Court of Appeals suspended Leonard from the practice of law.5 During his suspension,

The Sperling Law Office, P.C. was formed. The Articles of Incorporation identify Samuel

as the incorporator, and Samuel and Jonathan as the initial directors. The hearing judge

found that there was no evidence that Samuel and Jonathan remained as directors or served



      4
       Maryland Rules 16-760 and 16-609 have since been amended and renumbered as
Md. Rules 19-742 and 19-410 respectively.
      5
          Attorney Grievance Comm’n v. Sperling, 380 Md. 180 (2004).


                                            2
as officers of the Firm beyond the initial formation. At the same time, the Firm also

established an attorney trust account. Leonard, Samuel, and Jonathan were the only

attorneys with signatory authority on the trust account.

       Leonard was reinstated in July 2004 and resumed practice at the Firm. The hearing

judge found that Leonard was the sole shareholder, and he ran the firm, including

“managing the attorney trust account, assigning cases, settling cases, paying bills[,] and

handling the payroll.”

       In July 2013, Jonathan was indefinitely suspended from the practice of law. 6 He

was represented by Robert Hesselbacher, who continued advising Jonathan after his

suspension about compliance with the Rules and reinstatement requirements.7

Hesselbacher met with Jonathan, Samuel, and Leonard to discuss the limitations on

Jonathan’s activities as a suspended attorney. On July 10, 2013, the Firm employed

Jonathan as a paralegal.

       In September 2013, Leonard was indefinitely suspended from the practice of law.8

His suspension became effective in October 2013. At that time, there were three licensed

attorneys working at the Firm: Samuel, Andrea Babest, and Michele Loewenthal. Leonard

continued to work at the Firm following his suspension. In April 2014, Jonathan filed a




       6
           Attorney Grievance Comm’n v. Sperling, 432 Md. 471 (2013).
       7
        Robert Hesselbacher also represented and advised Leonard regarding compliance
with the Rules following Leonard’s suspension.
       8
           Attorney Grievance Comm’n v. Sperling, 434 Md. 658 (2013).

                                             3
Petition for Reinstatement, which Bar Counsel opposed. The Court of Appeals denied

Jonathan’s reinstatement in July 2014.

       In April and May 2014, Bar Counsel received notices stating that the Firm’s trust

account was overdrawn.       Samuel retained an experienced ethics attorney, Michael

McCabe, to assist him in responding to Bar Counsel’s inquiries. McCabe advised him to

start a new law firm or take over the Firm. On June 6, 2014, Samuel created The Sperling

Firm, LLC (“the LLC”), where he currently practices, and is the sole member.

       On July 31, 2014, Bar Counsel filed a Complaint for a Temporary Restraining

Order, Preliminary, and Permanent Injunction in the Circuit Court for Baltimore County

requesting that Leonard and Jonathan no longer be associated with the Firm, prohibiting

withdrawals or transfers from the Firm’s accounts, and ending operation of the Firm. The

Circuit Court issued a Consent Order prohibiting the Firm from operating, and appointing

Edward Gilliss, Esq., as interim receiver.

       Gilliss’s primary duties were to identify active files and ensure that an attorney was

available to represent the clients, and to identify closed cases in which clients had not been

paid. Gilliss met with Samuel, Leonard, and Jonathan regarding matters at the Firm.

Samuel and Jonathan assisted Gilliss—Samuel identified active clients, and Jonathan

identified closed matters wherein clients or other expenses had not been paid. Gilliss sent

active clients a letter notifying them that they could elect Samuel or Babest to represent

them or choose another attorney. Samuel, Babest, and Gilliss agreed to a split of attorneys’

fees. Gilliss received 25% of the “legal fee that was generated from resolution of those

active files,” and successor counsel received 75%.


                                              4
       Gilliss discovered that Leonard had misappropriated a significant amount of money

from the trust account and settled claims, but had not paid medical expenses, other lien

holders, or the clients. With no money available in the trust account to pay these

obligations, Gilliss referred clients to the Client Protection Fund.

       On August 26, 2014, the Court of Appeals issued an Order disbarring Leonard for

multiple violations of the MLRPC, including misappropriation.9 The hearing judge found

that there was no evidence that Samuel or Jonathan misappropriated funds, or that they

knew that their father was doing so.

                               The Attorney Trust Account

       In 2004, the Firm implemented a system that was in effect through July 31, 2014.

The Firm kept a register in which entries were made when a check was written. The “date,

check amount, activity, reason for the disbursement (whether a settlement or fee) and

client’s name would be recorded.” Samuel entered all the checks he wrote in the register.

       After Jonathan and Leonard were suspended, both remained signatories on the trust

account, and continued writing checks. Leonard, Jonathan, and Samuel all wrote checks

on the account during the relevant period. While Leonard wrote most of the checks,

Jonathan wrote 86 checks, either payable to cash, or to the Firm. Jonathan explained that

Leonard told him to “write the checks from the escrow account and deposit the money in

the operating account as payment of fees earned by the firm.” This was to “avoid delay of




       9
           Attorney Grievance Comm’n v. Sperling, 439 Md. 691 (2014).

                                              5
the transfer of the funds from the attorney trust account to the operating account.” Jonathan

did not keep any of the money.

       Samuel testified that he did not know that Leonard and Jonathan were writing

checks until June 2014. Relying on the parties’ stipulations, the hearing judge concluded

that Samuel’s testimony regarding when he had knowledge of Leonard writing checks was

not accurate. The records showed that during his suspension, Leonard wrote nine checks

payable to Samuel, which were drawn on the escrow account. Samuel stipulated to

endorsing three of those checks.

       Samuel deposited client funds in the trust account from July 2013 until the TRO

was entered. He represented “at least three . . . clients whose cases he settled and deposited

their money in the trust account, but the money was not disbursed to the client[]” because

it was part of those funds Leonard misappropriated. As a result, Gilliss directed them to

the Client Protection Fund.

       From July 2013 until May 2014, Samuel did not “review bank records to determine

what funds were being deposited or disbursed from the account, . . . perform monthly

reconciliations of the trust account,” or restrict Leonard or Jonathan’s access to the trust

account. Samuel did not take any action to remove Leonard or Jonathan as signatories. He

told Leonard and Jonathan to consult with Hesselbacher regarding actions they could or

could not take as suspended attorneys.

       The hearing judge concluded that based on the number of checks that Leonard and

Jonathan wrote, “Samuel should have known Jonathan and Leonard were writing checks

on the trust account.” Even if Samuel did not know who was writing the checks, he “should


                                              6
have known, or at least suspected that Leonard and Jonathan were writing checks on the

trust account and inquired where the checks were.” After he learned that the trust account

was overdrawn, Samuel “finally confronted his father and told him and Jonathan they could

not write escrow checks.” But Leonard and Jonathan continued writing checks through

July 2014.

                               Jonathan’s 5.3 Agreement

      In November 2013, Hesselbacher, acting on Jonathan’s behalf, sent Bar Counsel a

draft Md. Rule 16-760 affidavit, and a Md. Rule 16-781(d) statement for review. The 16-

781(d) statement explained Jonathan’s employment status at the Firm, and that Leonard

and Samuel had supervised him since his suspension. A few days later, a paralegal with

the Office of Bar Counsel notified Hesselbacher that Jonathan had not provided an

employment agreement to Bar Counsel. MLRPC 5.3(d)(3) requires a suspended attorney

who is employed by a lawyer to file an employment agreement with Bar Counsel within

30 days after the employment begins. Hesselbacher forwarded the e-mail to Jonathan,

indicating that he needed a “written agreement with the firm with the terms of [his]

employment as a paralegal and complying with that Rule.”

      In November or December 2013, an employment contract (“5.3 Agreement”) dated

July 10, 2013 was prepared.10 Samuel and Jonathan signed it, and Hesselbacher sent it to

Bar Counsel on January 13, 2014, along with Jonathan’s Rule 16-178(d) statement, Rule

16-781(g) affidavit, and supplemental 16-760 affidavit. The hearing judge concluded that


      10
          The hearing judge made no finding as to who drafted the agreement, other than
finding that Hesselbacher did not draft the agreement.

                                            7
backdating the 5.3 Agreement was not a misrepresentation. Relying on Hesselbacher’s

testimony, the hearing judge explained that the 5.3 Agreement was dated July 10, 2013

because that was when Jonathan’s employment as a paralegal began, and Jonathan’s Rule

16-718(d) statement specified that the 5.3 Agreement was “effective July 10, 2013.” The

hearing judge also considered that the position of the date, at the top of the 5.3 Agreement,

was consistent with it being an “effective date,” because agreements tend to specify if a

date is a signing date or locate the signing date near the signature line. The hearing judge

found that Respondents did not intend to mislead Bar Counsel about the date of creation.

Had they so intended, they would have included Leonard’s name on the letterhead and

Leonard, not Samuel, would have signed the agreement.

       Bar Counsel had requested that Samuel identify and save all computers Jonathan

might have used. Samuel complied, however, in June 2015, the Firm was a victim of a

ransomware attack. Samuel contacted David Spiegelman, who performed IT services and

restored the firm’s files. After the restoration, all documents had the same creation date—

June 30, 2015—the day they were restored, and metadata11 was missing. Bar Counsel

alleged that the Respondents attempted to obstruct the investigation by destroying the

metadata, specifically claiming that Samuel intentionally “did not ensure that the metadata

was preserved when the computer data was restored” to prevent determination of when

documents were created.



       11
         “[M]etadata is ‘data about data,’ which includes information such as who edited
a document . . . .” Paula Schafer, The Future of Inadvertent Disclosure: The Lingering
Need to Revise Professional Conduct Rules, 69 Md. L. Rev. 195, 208 n.62 (2010).

                                             8
       Spiegelman identified Jonathan’s computer and provided it to Phillip Blazer-

Catzen, Bar Counsel’s forensic computer expert, along with access to the Firm’s server.

Although Catzen testified that the metadata was not restored because the technician who

restored it chose not to do so, he admitted that it is not uncommon to see legal documents

without internal metadata, and he did not know if metadata was enabled when the 5.3

Agreement was created.

       The hearing judge found that Samuel did not ask Spiegelman to limit the

information he restored, delete information, or omit or delete metadata, and that Samuel

did not know what metadata was. Further, Spiegelman “did not and could not, change the

metadata” because when he restored the backup data, “the operating system [gave] the data

a new creation date[,] which is the date of restoration.”

       The hearing judge also concluded that Bar Counsel failed to prove by clear and

convincing evidence that Respondents fabricated a claim of attorney-client privilege to

prevent Bar Counsel from determining when the 5.3 Agreement was created. During an e-

mail exchange with Bar Counsel in December 2015, Respondents’ attorney stated that his

only copy of the 5.3 Agreement was an electronic copy that Jonathan had used to

communicate with Hesselbacher, and that some edits and metadata might be privileged.

The hearing judge determined that although Hesselbacher did not draft the Agreement, it

did not mean that “Respondents’ counsel did not have a basis to believe the internal data

might be privileged.”12 Bar Counsel also acknowledged that Respondents’ counsel had


       12
         The parties reached an agreement to protect personal client information on the
Firm’s server so that Catzen could examine the files.

                                              9
provided the date that the 5.3 Agreement was last modified and allowed Catzen to examine

the document.

                     Law-Related Activities by Suspended Attorneys

          After Jonathan was suspended, Samuel agreed, at Leonard’s request, to supervise

his brother. Upon Jonathan’s suspension, Hesselbacher told him to examine Rule 5.3, and

advised Jonathan that he could not perform law-related activities for the firm. Jonathan

performed clerical and administrative duties while suspended, but did not meet with clients,

take depositions, do legal research, or draft legal documents. On one occasion, with special

permission by the presiding judge, Jonathan attended court with Samuel to assist a blind

client.

          The hearing judge found Babest and Loewenthal to be credible and adopted their

testimony about Jonathan’s activities as fact.

                Babest: I personally observed Jonathan Sperling doing a lot of
                clerical duties. He made copies if, if the attorneys needed
                copies of exhibits for cases or hearings, he obtained office
                supplies, he would pick up the mail at the end of the day if we
                had a particularly large amount of mail or if there was a heavy
                package that needed to be weighed at the post office. He
                picked up our payroll checks, brought them to the office.
                Whenever any of us had a problem with our computers or the
                copier of the fax machine, we would ask Jonathan to assist us.
                He had a knack of making the computers and everything else
                work or he’d be the point person to contact the repair people to
                come in.

                                             ****

                Loewenthal: [Jonathan] would help if I had any problems with
                my computer. He—he helped make copies if I needed them as
                exhibits for trial. He ran errands. He sometimes answered the
                phone. . . .


                                              10
       Catzen analyzed Jonathan’s computer and found 69,000 files on the hard drive of

Jonathan’s workstation from July 5, 2013 until July 31, 2014. Most of the files were

Google Earth files. Catzen found one e-mail from Jonathan to a client (“Hill e-mail”)

asking the client to call the office to answer interrogatories. Of the 69,000 files, Catzen

identified 559 files from the Firm’s server that he asserted Jonathan’s computer had

created, modified, or accessed during that time. Catzen did not analyze the files, and the

hearing judge found that of the 559 documents, many of them contained dates of service

“well before or after that time frame.” Some of the documents were scanned and then

converted to word processing documents. Others were created by Loewenthal or Samuel,

and some were personal, relating to Jonathan’s family and synagogue activities. The

hearing judge concluded that this was not clear and convincing evidence that Jonathan’s

computer was used in law-related activities.

       The hearing judge accepted Babest’s testimony that Jonathan used Google Earth to

find pictures of accident scenes, by finding helpful angles, printing the pictures, and giving

them to an attorney in the Firm. He found that this was not law related activity because

“[i]t requires no legal knowledge, it is not peculiar to the practice of law, anyone can do it

without any legal background . . . .” The hearing judge also found that scanning documents

or converting them to word processing documents is not a law related activity because it

“is not clear and convincing evidence that Jonathan drafted pleadings, discovery, or

correspondence.”




                                             11
       The hearing judge concluded that the Hill e-mail was a law-related activity, albeit a

“gray area,” and there was no evidence Jonathan met with the client. It was also determined

that making deposits and disbursements from the trust account was not a law-related

activity.

                         Samuel’s Supervisory Responsibilities

                                          Leonard

       In 2013, after Leonard’s second suspension, he continued working in the Firm, “kept

files in his office, negotiated with adjusters and settled cases.” He also handled settlement

checks, wrote checks on the trust account, and misappropriated funds.

       After Leonard’s suspension, Babest had a conversation with Samuel about the

Firm’s future. She was concerned about Leonard’s conduct leading to the suspension, as

well as the financial viability of the Firm. There had been issues before Leonard’s

suspension, with paychecks not being available or bouncing and Babest told Samuel he

needed to “look into whether the payroll taxes were being paid . . . .” She suggested to

Samuel that “he might be facing liability from the IRS if the payroll taxes weren’t being

paid.” Samuel explained that he was not liable because he was not an officer and did not

have any official status in the Firm. Babest also testified that she did not know who

managed the Firm after Leonard’s suspension, but the staff knew how to run the Firm, and

that it was a “collaborative effort” by the entire office after the suspensions. She indicated

that Samuel’s role gradually changed, and he began asking her to bring him checks to sign

and inquiring about the status of cases. Babest indicated that at no time did she view

Samuel as her supervisor.


                                             12
       Loewenthal testified that Samuel took a more active role, delegating responsibility

for handling hearings, depositions, and engaging in planning, but that others were also

doing more. Hesselbacher testified that he assumed that Samuel would run the Firm, but

“only because ‘he was Leonard’s son’ and he was the ‘only Sperling’ who was admitted to

the bar at that time.” Hesselbacher admitted that he did not actually know who was running

the Firm.

       The hearing judge found Babest’s account of the transition “entirely credible” and

an “accurate recounting of events and Samuel’s role in the firm after Leonard’s

suspension.” Samuel did not agree to take control of the Firm. Leonard was the sole

shareholder of the Firm and the only individual who received a K-1. Tax forms list Leonard

as the sole officer of the Firm. Samuel was an employee of the Firm, not a shareholder or

partner, and received a W-2. The hearing judge found that Samuel “never agreed to

supervise his father, but he told Leonard that he needed to discuss with his own attorney

what he could or could not do and follow the direction of his counsel, Mr. Hesselbacher.”

       In June 2014, Samuel e-mailed McCabe explaining the circumstances at the Firm.

Samuel advised that he had instructed Leonard to stop signing escrow checks, and that

settlements needed to be handled by an attorney. Samuel also stated that he had formed a

new law firm, The Sperling Firm, LLC. At this time, he began transitioning out of the Firm

to avoid leaving his clients without counsel.

                                         Jonathan

       Samuel agreed to supervise Jonathan after his suspension and signed the 5.3

Agreement on behalf of the Firm. Samuel reviewed Rule 5.3 to identify his supervisory


                                            13
responsibilities and met with Hesselbacher. Samuel told Jonathan that he “could not do

legal work, go to court, attend depositions, advise clients, or give legal advice, and if he

had any questions he should consult with Mr. Hesselbacher and follow his advice.” The

hearing judge found that Jonathan’s role in the Firm was “to perform clerical and

administrative duties[,]” and Samuel did not ask Jonathan to write checks on the trust

account or perform legal work.

                     Allegations of Misrepresentation by Jonathan

       Bar Counsel alleged that Jonathan made multiple misrepresentations. The hearing

judge considered these allegations in three different contexts: Jonathan’s attempt at

reinstatement, Jonathan’s statement under oath on December 29, 2014 (“December

Statement”), and Jonathan’s deposition on April 20, 2017.

                                      Reinstatement

       Bar Counsel charged Jonathan with making misrepresentations to Bar Counsel in

his bid for reinstatement, his Petition for Reinstatement, and his responses to Bar Counsel’s

filings with the Court of Appeals.

       In January 2014, Hesselbacher sent Bar Counsel: (1) a supplemental Rule 16-760

affidavit; (2) a Rule 16-781(g) affidavit; and (3) a Rule 16-781(d) Statement. Bar Counsel

alleged that Jonathan made three misrepresentations in these documents by: (1) asserting

in his Rule 16-781(g) affidavit that he had complied with the requirements of Md. Rule 16-

760; (2) certifying in the 16-781(g) affidavit that since his suspension, he had not “engaged

in the practice of law or attempted or offered to engage in the unauthorized practice of

law. . . .”; and (3) stating that the 5.3 Agreement was effective July 10, 2013 in his Rule


                                             14
16-781(d) statement, thus misrepresenting by omission and failing to disclose that the 5.3

Agreement was actually created in December 2013. Rather, Jonathan stated that the

Agreement was “inadvertently not provided sooner.”

       The hearing judge concluded Jonathan’s assertion that he had complied with the

requirements of Md. Rule 16-780 was not accurate for two reasons. First, Jonathan violated

Rule 16-760(c)(11) by “failing to timely draft and submit the [MLRPC] 5.3(d)(3) notice

and agreement . . . .” Second, Jonathan violated Rule 16-760(d)(3) because he wrote

checks on the trust account after his suspension.

       The hearing judge found that the Hill e-mail was not the practice of law because it

was the kind of correspondence “that could have been sent by an assistant or a paralegal,

not necessarily a lawyer.” Therefore, the 16-781(g) affidavit was not “knowingly false.”

       With regard to the 5.3 Agreement, Hesselbacher and Jonathan discussed various

limitations on suspended attorneys working in their former firms, but there was no

indication that they discussed the requirement of a written employment agreement.

Hesselbacher’s testimony that he had overlooked the 5.3(d)(3) requirement was consistent

with the Respondents’ inadvertent failure to file the agreement in the appropriate time.

       Bar Counsel alleged that Jonathan made repeated knowing and intentional

misrepresentations to deceive the Court of Appeals and Bar Counsel about whether he had

engaged in law-related activities during his suspension. Specifically:

   1. Hesselbacher’s March 2014 e-mail misrepresented the activities Jonathan had been
      performing in the Firm.

   2. Jonathan’s Petition for Reinstatement and his Reply to Bar Counsel’s Response to
      his Petition both included affidavits stating that he had not engaged in the practice


                                            15
       of law, attempted, or offered to do so, and that his employment at the Firm only
       were “purely clerical or administrative . . . .”

   3. Jonathan’s Reply to Bar Counsel’s Supplemental Response to Jonathan’s Petition
      for Reinstatement contained misrepresentations and omissions about the scope of
      his conduct in writing checks on the trust account.

       With regard to the first and second allegations, the hearing judge reiterated his

earlier findings that the Hill e-mail was the only law-related activity Jonathan engaged in,

that itself was in a “gray area,” and that Jonathan had not “engaged in the practice of law

after his suspension.” Therefore, the statements were not misrepresentations.

       In June 2014, Bar Counsel filed a Supplemental Response to Jonathan’s Petition for

Reinstatement, which stated that Jonathan had written checks on the trust account payable

to cash after his suspension. Jonathan filed a Reply, which included an affidavit stating:

              2.      On several occasions, when one of the other signatories
              on the account was not available, I was asked to write checks
              from the escrow account for payment of fees the law firm had
              earned. I was instructed that the check should be made payable
              to ‘cash’ to enable faster crediting of the check by the bank,
              Wells Fargo Bank. In each instance, the check was deposited
              into the firm’s operating account, and it was my understanding
              that the check represented proper payment of an earned fee. It
              is my recollection and understanding that the purpose of each
              check was recorded in the check register, deposit record[,] or
              both.

              3.     With specific regard to the check Bar Counsel
              submitted with the Supplemental Response to my petition for
              reinstatement, I was requested by Mr. Leonard Sperling to
              write and deposit a check in partial payment of the firm’s fee
              for representation of a particular client, and I did so. It was and
              is my understanding that the fee payment was proper. I
              deposited the check in the firm’s operating account. . . .

              4.     At the time I made this and several similar deposits and
              until Bar Counsel contacted my attorney last week, I did not


                                              16
               realize that the Maryland Rules prohibited an escrow account
               check from being made payable to cash even when the purpose
               of the check is proper and the purpose is identified in trust
               account records. . . .

       Bar Counsel alleged that Jonathan knowingly and intentionally omitted a material

fact—that he had acted at the direction of Leonard, a suspended attorney. The hearing

judge disagreed that this was a material omission made with intent to mislead the Court of

Appeals and Bar Counsel. But he found that Jonathan “has significantly understated how

many times he was directed to write checks on the attorney trust account,” because “several

occasions” was not an accurate description of the number of checks Jonathan wrote.

                                The December Statement

       Bar Counsel argues that Jonathan testified falsely to subvert the investigation during

his statement under oath in December 2014 when he testified that he could not recall

whether: (1) Samuel supervised him immediately after his suspension; (2) Samuel

instructed him to write checks from the trust account payable to cash; (3) he discussed his

trust account activities with Samuel after his suspension; (4) there were any problems with

the trust account before Bar Counsel sought a TRO; and (5) he had ever discussed

Leonard’s presence at the firm after Leonard was suspended with Samuel.

   The hearing judge found that Bar Counsel did not prove by clear and convincing

evidence that Jonathan’s inability to recall whether Samuel supervised him initially was

not true. Jonathan testified that Samuel was involved in his supervision and provided a

description.   Accordingly, his answer was not intended to obstruct Bar Counsel’s




                                             17
investigation. Further, Jonathan did not testify falsely when he stated that he did not

remember, given the chaotic circumstances then prevailing in the Firm.

                                  Jonathan’s Deposition

      During Jonathan’s April 2017 deposition, he testified that he provided his login

credentials for his computer to everyone in the office so they could use his computer, and

that Loewenthal and Babest used his credentials. Both Babest and Loewenthal testified

that Jonathan had never provided his credentials.

                        Allegations of Misrepresentation by Samuel

      Bar Counsel contended that Samuel made multiple misrepresentations on three

separate occasions: (1) in his May 30, 2014 affidavit; (2) in a 2014 letter to the State

Department of Assessment and Taxation (“SDAT”); and (3) during his March 30, 2015

statement under oath.

                                 The May 2014 Affidavit

      Bar Counsel sent Samuel a letter in April 2014 notifying him that the AGC was

investigating possible violations of the MLRPC and asking for information regarding his

supervision of Jonathan, Leonard’s employment status with the Firm, and any changes to

the trust account following Leonard’s suspension. Bar Counsel also served Samuel with a

subpoena for the Firm’s financial records. McCabe sent a response to Bar Counsel that

included an affidavit signed by Samuel.

      Bar Counsel alleged that Samuel made seven false statements in his affidavit: (1)

Samuel did not have managerial authority in the Firm; (2) Jonathan did not draft legal

documents; (3) Jonathan did not receive client funds or make disbursements; (4) Jonathan


                                           18
signed the 5.3 Agreement on July 10, 2013; (5) the term “paralegal” as used in the 5.3

Agreement did not include drafting pleadings or discovery, communications with clients

about cases, or legal research; (6) Samuel was not responsible for supervising Leonard after

his suspension; and (7) Samuel had not delegated any legal tasks or law-related activity to

Leonard after his suspension.

       The hearing judge found that Bar Counsel failed to prove that any of these

statements were misrepresentations because there was not sufficient evidence or law to

support Bar Counsel’s assertions. Although Samuel’s statement about when the 5.3

Agreement was signed was “clearly wrong,” the hearing judge determined that it was not

an intentional misrepresentation, and Samuel had no motive to misrepresent that fact—

both Respondents admitted that they violated 5.3(d)(3) by the late filing.

                                     The SDAT Letter

       In September 2014, Samuel wrote a letter to SDAT stating that he was not the Vice

President of the Firm, and that he had never controlled the Firm’s financial decisions. Bar

Counsel argued that this was an intentional misrepresentation.          The hearing judge

concluded that there was “no evidence that Samuel was ‘solely responsible for the [F]irm’s

bank accounts’ or that he controlled the [F]irm’s finances . . . .” Therefore, Bar Counsel

failed to prove that this was an intentional misrepresentation.13




       13
          Bar Counsel also alleged that a December 5, 2014 letter from Jonathan’s counsel
contained a similar misrepresentation—that Leonard handled the Firm’s finances, paid the
bills, and kept control over the Firm at all times. The hearing judge found that the evidence
did not support Bar Counsel’s allegations.

                                             19
                                  The March Statement

       Samuel made a statement under oath to Bar Counsel on March 30, 2015, which Bar

Counsel alleges was intended to obstruct the investigation by “testifying that he was unable

to recall, or did not know, a number of material facts . . . .” Specifically: (1) whether

Samuel had any conversations with Leonard after Jonathan was suspended about what

Jonathan could or could not do under the MLRPC; (2) when Samuel signed the 5.3

Agreement; (3) who drafted the 5.3 Agreement; (4) whether after Leonard’s suspension,

letters were sent to Firm clients notifying them of the suspension and that they could retain

Samuel to represent them, or if Samuel discussed individual client matters with Leonard

after his suspension; (5) the number of cases Leonard was involved in at the time of his

suspension, or whether Samuel prepared lines substituting his appearance for Leonard’s;

(6) the checks Leonard wrote from the trust account after his suspension; and (7) whether

Leonard had any input into deposits and withdrawals from the trust account after he was

suspended.

       The hearing judge observed that Bar Counsel “ha[d] not cited or referred to any

evidence in support of its allegations other than to the statements themselves,” and found

that Bar Counsel had not shown any evidence that the statements were not true.

       Bar Counsel also claimed that Samuel knowingly and intentionally testified falsely

that: (1) Jonathan did not draft any interrogatories or pleadings for Samuel after he was

suspended; (2) Leonard was only involved in administrative and clerical matters after his

suspension; (3) Samuel could not identify Leonard or Jonathan’s handwriting in the Firm’s




                                             20
trust account ledgers; and (4) Samuel learned for the first time in August 2014 that Leonard

had settled cases after his suspension.

       The hearing judge found that Bar Counsel failed to prove that any of these

statements were not true by clear and convincing evidence. Although he observed that

Samuel’s June 2014 e-mail to McCabe “suggests that Samuel learned by at least early June

2014 that Leonard had settled cases and was continuing to write checks on the escrow

account,” he did not find, from a two-month discrepancy alone, that Samuel made an

intentional misrepresentation.

                                          Luvenia Jeter

       Luvenia Jeter had been a student in the Practical Nursing Program at Hagerstown

Community College (“College”) but was terminated after her third semester when she

failed the clinical course. She thought that her termination was unfair, so she contacted the

Baltimore County Referral Service and was referred to Jonathan.

       Jonathan and Jeter met at least twice at the Firm. At the first meeting, in early

January 2012, which lasted about an hour and a half, Jeter “wanted to talk and wanted

someone to listen to her and tell her if she had a case.” They discussed the viability of a

claim for unfair dismissal, and Jonathan told Jeter that her case was a “challenge.” He also

advised that the statute of limitations was three years. Jeter paid the Referral Service $35

for the initial consultation and Jonathan $350. At the second meeting, which lasted two

hours, Jeter provided documents for Jonathan’s review, including her Clinical Performance

Assessment and her own notes regarding the assessment. Jonathan agreed to communicate

with the College.


                                               21
       Jonathan sent two letters to different individuals associated with the College asking

to discuss Jeter’s dismissal. He received a response from the program director “informing

him that ‘Ms. Jeter failed Nursing 113 due to both safety and academic reasons[,]’” and

that Jeter had not contacted her with any issues or initiated the grievance process.

       In March, Jeter gave Jonathan a check for $2,000 as a retainer and signed a retainer

agreement with the Firm. “The retainer agreement provided for a $2,000 retainer and a

contingent fee of 25% of any recovery.” Jonathan sent the College notice under the State

and Local Government Torts Act in April, and in May, he sent Jeter a draft complaint

against the College “to be filed forthwith.” Jonathan testified that “after a lot of effort and

searching” he spoke with program staff “in or after May 2012,” and learned that Jeter’s

termination was justified because she “could not perform the activities necessary to

continue in the program . . . .”

       After discussing Jeter’s performance in the program, reviewing documents,

transcripts, and the director’s letter, as well as meeting with Jeter, “Jonathan concluded that

Ms. Jeter did not have a good faith basis to go forward with a claim.” He testified that after

May 2012, he spoke to Jeter by telephone, discussed the matter with her, and told her that

there was no basis to move forward with her claim. Jonathan testified that he had a

handwritten note that confirmed his call, which Bar Counsel contended he had

“fabricated.” Jeter disagreed with Jonathan, asserting that Jonathan never called her after

sending the draft complaint.

       Jeter testified that she called Jonathan’s office regularly but was unable to reach

him. She stated that she called the courthouse “in the middle of last year, 2016,” and


                                              22
learned that Jonathan did not file the suit, after which she filed a complaint with Bar

Counsel. The hearing judge was unable to ascertain “whether the phone call occurred

between Ms. Jeter and Jonathan after May 2012, and whether [Jonathan] informed her of

his determination not to go forward with her case.” Regarding his fee, “Jonathan testified

that he spent over 20 hours investigating the case at a rate of $150 per hour. . . . [but] did

not maintain time records, provide Ms. Jeter with an accounting, or determine a date when

the fee was earned.”

       Jeter’s assertions did not correspond with events. She had communications with

Jonathan after paying him and her claim that she had called the courthouse in mid-2016

and then complained to the AGC was inconsistent with the date of her AGC complaint

which was filed in January 2016. After Jonathan’s letter to Bar Counsel stating that Jeter’s

grades were poor, Jeter represented to Bar Counsel that she was “virtually an ‘A’ student”

before her dismissal. The hearing judge reviewed Jeter’s transcripts, and observing that

she had failed the clinical component, and never earned an A, he found it reasonable to

conclude that there was no basis to file suit. Additionally, Jeter’s decision to file a

complaint four years later supported “that she was told that Jonathan would not go forward

with her case and over time she may have forgot[ten] that the call occurred.”

                THE HEARING JUDGE’S CONCLUSIONS OF LAW

                               Conclusions of Law: Samuel

                       MLRPC 1.15(a) and (d): Safekeeping Property

       The hearing judge explained that “the essence of the claim . . . is not imputed

liability for Leonard’s misappropriation of funds from the account, but Samuel’s own


                                             23
failure to safeguard the funds in the attorney trust account.” Samuel should have known

that someone else was writing checks, and a cursory review of the Firm’s bank statements

would have confirmed any suspicions. Samuel took no action until June 2014 to prevent

Leonard’s activities, he did not supervise Leonard’s access, or perform monthly

reconciliations.   Samuel deposited client funds into the trust account and made

disbursements, and he was the only licensed attorney in the office with signatory authority,

consequently, he had “the duty and the right to safeguard the funds in the attorney trust

account.” Therefore, Samuel violated 1.15 “by his lack of oversight of the attorney trust

account.”

             MLRPC 5.3: Responsibilities Regarding Nonlawyer Assistants

       With regard to Samuel’s responsibility for Leonard, the hearing judge concluded

that Samuel did not violate 5.3 as it applied to Leonard. Samuel did not have managerial

authority in the Firm and did not order or ratify Leonard’s conduct. He did not employ

Leonard—he was Leonard’s employee.

       Turning to Samuel’s responsibility for Jonathan, the hearing judge found that 5.3(b),

(c), and (d) were relevant because Samuel was the only lawyer supervising Jonathan after

Leonard’s suspension and Samuel signed the 5.3 Agreement. Because Bar Counsel failed

to prove that Jonathan had engaged in any law-related activities, except for the Hill e-mail,

which Samuel knew nothing about, there was “not proof that Samuel failed to take

reasonable steps to supervise Jonathan.” The hearing judge found that Samuel and

Jonathan violated 5.3(d)(3) because they did not draft and file the 5.3 Agreement within

the mandated deadline.


                                             24
       The hearing judge reasoned that Samuel failed to “make reasonable efforts to ensure

that Jonathan did not continue to write checks on the attorney trust account after his

suspension.” Therefore, “Samuel violated 5.3(b) as to his supervision of Jonathan.”

Because there was no evidence that the checks Jonathan wrote were related to Leonard’s

misappropriation, Bar Counsel did not prove that Samuel could have avoided the

consequences of Leonard’s misappropriation when he learned that Jonathan was writing

checks on the account. For that reason, Samuel did not violate 5.3(c).

            MLRPC 5.4(a) and (d): Professional Independence of a Lawyer

       Samuel did not violate 5.4(a) because there was no evidence that he shared legal

fees with, or paid legal fees to Leonard after Leonard’s 2013 suspension. Samuel did

violate 5.4(d)(1) because “he continued to practice in a professional corporation owned by

Leonard after Leonard’s suspension.”

  MLRPC 5.5(a): Unauthorized Practice of Law; Multijurisdictional Practice of Law

       Bar Counsel failed to prove that Samuel violated 5.5(a) as to Jonathan because there

is no “clear and convincing evidence that Jonathan engaged in the practice of law after his

suspension or that Samuel assisted him in doing so.” Samuel did not violate this Rule as

to Leonard because “Samuel did not supervise Leonard or control the [F]irm and there is

no evidence that Samuel ‘permitted’” or assisted Leonard’s unauthorized practice of law.

                 MLRPC 8.1: Bar Admission and Disciplinary Matters

       Samuel did not violate 8.1(a) because he did not make any knowingly false

statements in his May 2014 letter, or in his March 2015 statement under oath. Regarding

8.1(b), Bar Counsel did not “prove[] by clear and convincing evidence that Samuel


                                            25
‘knowingly failed to respond’ to Bar Counsel’s questions . . . .” The hearing judge also

found that Samuel did not refuse to provide information “associated with the creation date

of the 5.3 Agreement.”

                              MLRPC 8.4(a)–(d): Misconduct

       Samuel violated 8.4(a) because he violated MLRPC 1.15, 5.3(b) and (d)(3), and

5.4(d)(1). Samuel, however, did not assist Leonard in theft and embezzlement, or commit

perjury in his May 2014 affidavit, or his March 2015 statement under oath. Samuel did

not make misrepresentations in his letter to SDAT. Bar Counsel did not prove that

“information about the employment contract was fabricated, deleted, or withheld from Bar

Counsel.” The hearing judge found that Samuel did not violate 8.4(b)–(d).

                              Conclusions of Law: Jonathan

                     MLRPC 1.1, 1.2(a), 1.3, 1.4, 1.5(a)–(b), 1.16(d)

       Bar Counsel failed to prove by clear and convincing evidence that Jonathan violated

1.1, 1.2(a), 1.3, 1.4, 1.5(a)–(b), or 1.16(d) because the evidence available to Jonathan

suggested that Jeter’s termination from the nursing program was justified, and “it was a

reasonable conclusion by Jonathan that there was no good faith basis to file the lawsuit.”

Jonathan had two meetings with Jeter, listened to her, discussed her claims, reviewed

documents, and contacted individuals at the College. Bar Counsel did not prove that

Jonathan failed to speak to college officials, or that Jonathan neglected to call Jeter once

he concluded that she had no case. The judge considered that the facts demonstrated that

Jonathan could reasonably have found that Jeter’s termination was valid. Bar Counsel

failed to prove that Jonathan did not tell Jeter that he had not filed suit, or that he did not


                                              26
think she had a basis to bring the suit. Regarding fees, the hearing judge found that

Jonathan performed legal services for Jeter, and “[m]erely because Jonathan concluded that

Ms. Jeter did not have a meritorious claim does not mean there was no value for Jonathan’s

investigation.”

                      MLRPC 8.1: Bar Admission and Discipline

       Jonathan violated 8.1(a) “by his statement in his Rule 16-781 affidavit that he had

complied with Rule 16-760[]” because Jonathan knew that he had violated Rule 16-

760(c)(11) by not filing the 5.3 Agreement within 30 days of beginning his employment as

a paralegal with the Firm, and by writing checks on the attorney trust account in violation

of Rule 16-760(d)(3) before he signed the affidavit. Jonathan’s statement that he wrote

checks “‘on several occasions’ [was] a misrepresentation” in violation of 8.1(a). The

hearing judge concluded that Bar Counsel had not proved any other allegations of

misrepresentation by clear and convincing evidence.

                            MLRPC 8.4(a)–(d): Misconduct

       By violating 8.1(a) and 5.3(d)(3), Jonathan violated 8.4(a) and (c). The hearing

judge concluded, however, that because Bar Counsel “failed to prove that Jonathan had

engaged in the practice of law or attempted to engage in the unauthorized practice of law,”

Bar Counsel had not proved that Jonathan committed perjury in his Rule 16-781(g)

affidavit. Bar Counsel failed to prove that Jonathan violated 8.4(d) because she had stated

that his conduct as a whole violated the Rule, but she had not proved a number of

allegations by clear and convincing evidence.




                                            27
                          Aggravating and Mitigating Factors

       Bar Counsel alleged the existence of multiple aggravating factors for Samuel, but

the hearing judge concluded that none applied. He did find multiple aggravating factors as

to Jonathan. The hearing judge also found substantial mitigation for both brothers. We

discuss these matters in greater detail below.

                                       DISCUSSION

       “In attorney discipline proceedings, this Court has original and complete jurisdiction

and conducts an independent review of the record.” Attorney Grievance Comm’n v.

McClain, 406 Md. 1, 17 (2008). We accept the hearing judge’s findings of fact unless they

are clearly erroneous, and we defer to the hearing judge’s assessment of the witnesses’

credibility. Attorney Grievance Comm’n v. Ugwuonye, 405 Md. 351, 368 (2008). We

review the hearing judge’s legal conclusions without deference. Attorney Grievance

Comm’n v. Hamilton, 444 Md. 163, 178 (2015).

       Both parties may file “exceptions to the findings and conclusions of the hearing

judge” and recommendations for the appropriate sanction. Md. Rule 19-728(b). If a party

excepts, we determine whether the findings of fact were proven by the relevant standard in

Md. Rule 19-727(c). Md. Rule 19-741(b)(2)(B). We may limit our review to the findings

of fact challenged by the exceptions. Id. If no exceptions are filed, we may treat the

findings of fact as established. Id. (b)(2)(A).

                                           Samuel

       Bar Counsel excepts to the hearing judge’s factual finding that Samuel lacked

managerial authority in the Firm, and consequently to the hearing judge’s conclusion that


                                             28
Samuel did not violate 5.3(a)–(d), 5.4(a), and 5.5(a), as applied to Leonard. Bar Counsel

also contends that the hearing judge erred in finding that Samuel did not violate 8.1(a) and

8.4(b)–(d). Samuel excepts to the finding that he violated 1.15, asserting that the hearing

judge erred in concluding that Samuel had an affirmative duty to protect client funds.

Samuel reasons that because he was an employee and lacked managerial authority, he had

no duty to take over the account when Leonard was suspended, absent actual knowledge

of Leonard’s misconduct. We first consider Samuel’s authority in the Firm because that

analysis determines whether we sustain or overrule numerous legal exceptions.

       Bar Counsel offers certain facts from the record to support the argument that Samuel

had managerial authority, or at least direct supervisory authority, over Leonard’s use of the

trust account, and that Samuel employed Leonard after his suspension. These facts include

that Samuel was named as one of the two directors of the Firm in the 2004 Articles of

Incorporation, and no document has demonstrated that Samuel was removed. Samuel also

served as the Firm’s resident agent. Bar Counsel asserts that Samuel established the Firm’s

trust account. Samuel received both a W-2 and a Schedule C. Samuel supervised Jonathan

after his suspension.

       Bar Counsel places great weight on two particular facts relating to the aftermath of

Leonard’s suspension: (1) Samuel was the only licensed attorney with signatory authority

on the trust account; and (2) Samuel was the only Sperling licensed to practice law

associated with the Firm. Bar Counsel also asserts that Samuel had authority to sign

contracts on behalf of the Firm.      Following Leonard’s suspension, Samuel took on

additional responsibilities and instructed Leonard to consult with, and follow, his attorney’s


                                             29
advice. In June 2014, Samuel “affirmatively took control of the [F]irm,” instructed

Leonard not to write checks from the trust account and took over responsibility for “all

settlements of client matters.”

       Judge Stringer’s assessment that Samuel lacked managerial authority was based on

five days of testimony and volumes of evidence. We defer to his assessment of witness

credibility because he was in the best position to draw those conclusions. Attorney

Grievance Comm’n v. Sheridan, 357 Md. 1, 17 (1999).

       The Firm established the trust account in 2004. The account application identifies

the signatories, but Leonard, not Samuel signed the application for tax reporting purposes.

The Firm’s tax documents identified Leonard as the sole shareholder and officer of the

Firm. Samuel testified that he did not remain a director after Leonard’s 2004 reinstatement,

and the hearing judge found this testimony credible. Samuel remained the Firm’s resident

agent, but all Maryland corporations are required to designate at least one resident agent.

See Md. Code (1975, 2014 Repl. Vol.), § 2-108(a)(2) of the Corporations & Associations

Article. Bar Counsel has not supplied any authority supporting the proposition that resident

agent status is accompanied by managerial control over a corporation. Although the Firm

was called “The Sperling Law Office, P.C.,” we do not conclude that sharing a surname

with the owner of a professional corporation automatically endows managerial authority.

       Samuel testified that he received a Schedule C for a portion of new business fees he

generated. Babest, although not offering specifics regarding tax documentation, testified

that the Firm’s general policy was to give attorneys who generated new cases for the Firm

a share of attorneys’ fees. Leonard, however, was the only individual at the Firm who


                                            30
received a K-1. Bar Counsel has not offered any relevant evidence regarding the import of

the Schedule C.

       Samuel never stated that he had broad authority to sign contracts on behalf of the

Firm. During his March 2015 statement, Samuel testified that he signed the 5.3 Agreement

for Jonathan “as an agent” of the Firm because Leonard had given him the authority to do

so. Likewise, Samuel was Jonathan’s supervisor because Leonard asked him to take on

that responsibility.   Samuel was not asked and did not agree to become Leonard’s

supervisor.

       Following Leonard’s suspension, the Firm carried on through a “collaborative

effort,” and the associated attorneys were not sure who managed the Firm. Loewenthal

testified that Samuel “took a more active role,” but that others in the Firm also did more.

Babest and Loewenthal did not consider Samuel to be their supervisor. Samuel advised

his father to consult with Hesselbacher and to follow his advice. Samuel’s choice of the

word “instructed” is not, by itself, sufficient to indicate that he assumed managerial

authority.

       Our review of the record shows that Leonard, apparently indifferent to his

suspension, continued running the Firm. Samuel confronted his father in June 2014 and

told him he had to stop signing checks. He did not take sole responsibility for handling

settlements—he told Leonard that settlements had to be handled by an attorney. Samuel

formed the LLC and began transitioning out of the Firm.




                                            31
       Leonard’s suspension did not convert Samuel into his employer in a corporation

Leonard owned.14     Bar Counsel has not offered any facts showing this change in

relationship, or any authority that could persuade us to conclude otherwise. Thus, we

overrule Bar Counsel’s factual exception.

                                        Jonathan

       Bar Counsel excepts to the hearing judge’s findings and conclusions regarding

Jonathan’s communications and submissions to Bar Counsel. Specifically, Bar Counsel

asserts that the hearing judge should have found that Jonathan made three additional

misrepresentations: (1) Jonathan misrepresented in his Rule 16-781(g) affidavit that he had

not engaged in the practice of law because he knew he gave legal advice in the Hill e-mail;

(2) Jonathan misrepresented the tasks he performed for the Firm in a March 2014 e-mail

drafted and submitted by his attorney; and (3) Jonathan made additional misrepresentations

in a December 2014 letter to Bar Counsel.

       Bar Counsel also asserts that the hearing judge should have found additional

violations of 8.4(c), presumably related to the alleged misrepresentations discussed above.

She also urges this Court to find that Jonathan violated 8.4(b) because he committed perjury

when making misrepresentations in his Rule 16-781(g) affidavit. Finally, Bar Counsel

excepts to the hearing judge’s conclusion that Jonathan did not violate 8.4(d) arguing that

Jonathan’s conduct, “taken as a whole, . . . brings the legal profession into disrepute in

violation of Rule 8.4(d).”


       14
         Leonard employed Samuel. After Leonard’s suspension, Samuel continued
working for him. As we explain, infra, this conduct violated MLRPC 5.4(d).

                                            32
       Jonathan asserts that the hearing judge erred by finding that he failed to

acknowledge any wrongdoing and that he acted with a selfish or dishonest motive.

Jonathan also excepts to the hearing judge’s conclusion that he violated 8.1(a), insisting

that his use of “imprecise language,” specifically the phrases “on several occasions” and

“several similar deposits” used to describe the checks Jonathan handled at the Firm, does

not rise to an 8.1(a) violation. Jonathan challenges the hearing judge’s conclusion that he

misrepresented, in a statement made under oath, that he provided his computer login

credentials to other employees at the Firm. Jonathan contends the hearing judge should

not have found a violation of 8.4(c) because his misconduct was negligent, rather than

intentional. Finally, Jonathan argues that the hearing judge should have found that he had

an enforceable settlement agreement with Bar Counsel.

                                  Conclusions of Law

                                            Samuel

                                      MLRPC 1.15

       MLRPC 1.15(a) creates an affirmative obligation for a lawyer to hold the property

of clients or third persons in a lawyer’s possession separately from the lawyer’s own

property, maintain records, and safeguard client funds. See, e.g., Attorney Grievance

Comm’n v. Glenn, 341 Md. 448, 472 (1996). Samuel received client funds and deposited

them in the Firm’s trust account from July 2013 until the TRO was entered in 2014. He

had signatory authority over the account.

       When an attorney is the only party responsible for managing a trust account, the

attorney must ensure that the management of the accounts complies with the Maryland


                                              33
Rules. Attorney Grievance Comm’n v. Shephard, 444 Md. 299, 330 (2015). Attorneys,

however, retain their 1.15(a) responsibilities regardless of whether other attorneys have

authority to manage funds. This is illustrated in In re Woiccak’s Case, 561 A.2d 1049

(N.H. 1989). Woiccak established a firm with two other attorneys who were not admitted

in New Hampshire. Id. at 1049–50. Woiccak was not the managing partner. The firm’s

account was badly out of trust, and records were improperly kept. Id. at 1051. Woiccak

contended that he had no actual knowledge of the use of the client funds, and that he was

not responsible for managing the accounts. The Supreme Court of New Hampshire

rejected these arguments because evidence showed that Woiccak was aware of problems

with the accounts. Further, Woiccak “had the responsibility as a fiduciary, and particularly

as the only partner licensed to practice law in this State, to ensure that the integrity of client

trust accounts was being maintained.” Id. at 1052.

       Samuel was not a managing partner or sole signatory. But like Woiccak, he was the

only signatory licensed to practice in Maryland. Because he used the trust account to hold

funds he received from and on behalf of clients, he had an affirmative obligation under

1.15(a) to safeguard those funds.15 The hearing judge correctly found that Samuel had “the

duty and the right to safeguard the funds in the attorney trust account.”




       15
         We do not suggest that every attorney associated with a law firm is required to
continually monitor the firm’s accounts. This would be impracticable, particularly in large
law firms. An attorney may certainly satisfy his or her affirmative 1.15(a) obligation by
understanding the firm’s policies regarding handling client funds, and complying with
those policies, provided such policies are consistent with the ethical and legal duties
imposed by the Maryland Attorneys’ Rules of Professional Conduct.

                                               34
       Samuel recorded his deposits and disbursements in the Firm’s ledgers but did not

review bank records or perform monthly reconciliations. There is no evidence whether

anyone performed reconciliations. But a review of the Firm’s ledgers and bank statements

would have immediately demonstrated that someone other than Samuel was writing

checks—as Judge Stringer observed “either he would have seen ledger entries and check

stubs filled out by someone else, or he would have seen that checks were missing that he

did not write.” Leonard had also written checks to Samuel after his suspension, which

Samuel endorsed.

       In April 2014, Samuel received a communication from Bar Counsel that the account

had been overdrawn. A balance in the trust account below the required amount of funds to

be held is prima facie evidence of a 1.15(a) violation. See Attorney Grievance Comm’n v.

Mungin, 439 Md. 296, 290 n.2 (2014); Attorney Grievance Comm’n v. Zuckerman, 386

Md. 341, 355 (2005); Glenn, 341 Md. at 472. Bar Counsel’s notice was certainly sufficient

to advise Samuel that there were problems with the trust account. Yet Samuel continued

depositing client funds into the account and apparently did not review the account’s

records.

       Relying on Attorney Grievance Comm’n v. Pennington, 387 Md. 565 (2005),

Samuel asserts that his actions were reasonable because he directed Leonard and Jonathan

to speak with Hesselbacher about their permissible post-suspension activities.                 In

Pennington, an attorney sought legal advice from counsel not admitted in Maryland

regarding her obligations after a filing error at the clerk’s office resulted in her clients’ case

being dismissed with prejudice. Id. at 572–73. She claimed that the consultation rendered


                                               35
her subsequent action reasonable because she relied in good faith on her lawyer’s advice.

We rejected this argument. Id. at 589–90. Maryland attorneys are bound to comply with

the MLRPC and may not delegate that responsibility by relying on advice of counsel. Id.

       Leonard and Jonathan certainly should have consulted with their attorney regarding

permissible post-suspension conduct. That Samuel directed them to do so does not excuse

his inattention to the trust account or render his neglect reasonable. Samuel could have—

and should have—done more. Had he exercised any oversight of the trust account, he

would have discovered that Leonard and Jonathan were writing checks. See Attorney

Grievance Comm’n v. Smith, 443 Md. 351, 382 (2015).

       Samuel did not misappropriate funds and he was unaware of his father’s

misappropriation. We agree with the hearing judge that Samuel’s liability is not based on

Leonard’s conduct—rather it stems from Samuel’s failure to act. But an unintentional

violation of 1.15(a) is still a violation. Glenn, 341 Md. at 472. We overrule this exception

and conclude that Samuel violated 1.15(a).

       Bar Counsel also charged Samuel with a violation of 1.15(d). This rule requires an

attorney, upon receiving funds or property in which a client or third person has an interest,

to promptly notify the interested parties and deliver the funds or other property they are

entitled to receive, as well as render a full accounting upon request. See Mungin, 439 Md.

308–09; Smith, 443 Md. 373–74. The hearing judge concluded that Samuel violated 1.15,

without specifying the conduct violated that 1.15(d). He found that Samuel represented

“at least three clients whose cases he settled and deposited their money in the trust account,

but the money was not disbursed to the client[s].”


                                             36
                              The White and Rodriguez Funds

       Samuel testified that he had represented Karen and Amani White and that he had

probably settled their claims and would have deposited their settlements—$5,000 and

$2,000 respectively, into the trust account.        Samuel did not recall making any

disbursements. The record shows that the settlement checks were issued on July 23, 2014,

endorsed by the clients, and deposited in the trust account on July 25, 2014. The Whites

and their medical lien holders did not receive any disbursements. They were referred to

the Client Protection Fund.

       Samuel also represented Orlando Rodriguez and settled a claim on his behalf for

$7,000. He received two checks for $3,500, one before the TRO went into effect, and one

after. The first check was issued on July 24, 2014. Rodriguez endorsed the check and it

was deposited into the trust account on July 31, 2014, the day before the TRO went into

effect. Samuel did not make any disbursements from the first check. He disbursed the

second check after discussions with Gilliss.       Rodriguez was referred to the Client

Protection Fund for the first check.

       The Whites and Rodriguez endorsed the checks, which indicates that they were

promptly notified of the receipt of funds. There is no evidence about whether lien holders

were notified. Our cases finding a 1.15(d) violation show a prolonged gap between receipt

of funds and disbursal as well as a complete failure to notify anyone. See Mungin, 439

Md. at 308–09 (violation found after months and years of delays in distributing funds

without a valid reason); Smith, 443 Md. at 374 (violation found for failing to notify clients

and third-party providers on receipt of funds and delays in disbursements for over a year);


                                             37
see also Attorney Grievance Comm’n v. Goodman, 426 Md. 115, 126 (2012); Attorney

Grievance Comm’n v. Roberts, 394 Md. 137, 154–55 (2006); Attorney Grievance Comm’n

v. Cherry-Mahoi, 388 Md. 124, 146–47 (2005).

       Samuel failed to safeguard his clients’ funds. But he only had the funds for the

Whites and Rodriguez for a brief period of time before the TRO took effect. Even if the

funds had remained in the account, he would have been prohibited from disbursing them.

We conclude that this evidence is not sufficient to conclude that he violated 1.15(d).

                  MLRPC 5.3: Samuel’s Responsibility for Leonard

       5.3(a) imposes responsibility on “a partner, and a lawyer who individually or

together with other lawyers possesses comparable managerial authority in a law firm” to

make reasonable efforts to ensure the firm has measures in place to ensure that nonlawyers

employed, retained by, or associated with a lawyer conduct themselves in a manner

“compatible with the professional obligations of the lawyer.” 5.3(b) requires that a lawyer

who has “direct supervisory authority over the nonlawyer” must make “reasonable efforts”

to ensure that the nonlawyer’s conduct is compatible with a lawyer’s professional

obligations.

       Samuel certainly should not have continued working in a law firm owned by a

suspended attorney. But the facts do not demonstrate that Samuel was a partner, that he

had managerial authority, or that he directly supervised Leonard. We have overruled Bar

Counsel’s factual exceptions to Samuel’s status in the Firm. Accordingly, we overrule Bar

Counsel’s exceptions to 5.3(a) and (b). We also overrule Bar Counsel’s exception to

5.3(c)(2) for the same reasons. See Attorney Grievance Comm’n v. Landeo, 446 Md. 294,


                                            38
338 (2016) (no liability under 5.3(c)(2) when attorney did not directly supervise staff).

Samuel did not violate these Rules as applied to Leonard.

       5.3(c)(1) imposes vicarious liability for the conduct of nonlawyers employed by,

retained by, or associated with a lawyer that would violate the MLRPC. The lawyer may

be held responsible if the “lawyer orders, or with the knowledge of the specific conduct,

ratifies the conduct involved[.]” Id. Bar Counsel claims that Samuel’s “inaction following

his actual knowledge of Leonard’s misconduct amounted to ratifying the conduct.”

       To ratify a nonlawyer’s conduct, the lawyer must have knowledge of the specific

conduct involved. MLRPC 5.3(c)(1). In Attorney Grievance Comm’n v. Phillips, 451

Md. 653, 660–61 (2017), Phillips’s son, a nonlawyer, established a law firm including

himself and his father, and Phillips consented to be a member of the firm. His son sent a

cease and desist letter on behalf of an acquaintance on the firm’s letterhead and signed

Phillips’s name. Id. at 661. Phillips initially disavowed knowledge, but later sent an e-

mail to the recipient of the letter stating that the firm represented the acquaintance and that

a junior attorney had sent the letter. We concluded that this e-mail ratified the unauthorized

practice of law. Id. at 673. Similarly, in Attorney Grievance Comm’n v. Barton, 442 Md.

91, 137–38 (2015), an attorney ratified her employee’s theft of client funds by providing

blank checks and not reviewing bank statements even after she caught him stealing.

       Samuel certainly should have known that his father was writing checks. But unlike

the attorney in Barton, Samuel did not know that his father was misappropriating funds.

Leonard had written some checks to Samuel after the suspension, but there is no evidence

that they related to Leonard’s misappropriation. The hearing judge concluded that Samuel


                                              39
did not order or ratify his father’s conduct. We agree that this is not clear and convincing

evidence that Samuel is liable for Leonard’s misappropriation under 5.3(c)(1) and overrule

Bar Counsel’s exception.

       5.3(d) imposes responsibilities on a lawyer who “employs or retains” the services

of a formerly admitted attorney. As we concluded above, Samuel did not have managerial

or supervisory authority in the Firm. Before Leonard’s suspension, Samuel was Leonard’s

employee.    There is no evidence demonstrating a change in corporate structure or

ownership. We agree with the hearing judge that because Samuel did not employ16 or

supervise Leonard, he did not violate 5.3(d), and overrule Bar Counsel’s exception.

                  MLRPC 5.3: Samuel’s Responsibility for Jonathan

       Neither party has excepted to the hearing judge’s conclusions of law regarding 5.3

as applied to Jonathan. Because Samuel did not have managerial authority in the Firm, and

was not a partner, we find that he did not violate 5.3(a) as applied to Jonathan.

       Turning to 5.3(b), we have found violations of this Rule when a lawyer who has

direct supervisory authority over a nonlawyer employee fails to make reasonable efforts to

ensure the nonlawyer’s conduct conforms to an attorney’s professional obligations. See


       16
          Bar Counsel asserts that the hearing judge “apparently reasoned that Samuel’s
violation of Rule 5.4 provides him with a defense to a violation of Rule 5.3(d)[,]” and
argues that this conclusion is against the public policy behind 5.3(d). But 5.3(d) delineates
responsibilities for attorneys who employ formerly admitted lawyers—not vice versa. See
Rules Order, 33 Md. Reg. 593 (Mar. 31, 2006).
       Leonard employed Samuel. Without facts showing a change in the relationship, we
do not find that Samuel violated Rule 5.3(d). Although Samuel undoubtedly should have
taken a different course of action after his father’s suspension, we do not conclude that
when a lawyer who owns a professional corporation or other entity is suspended, his
employees become his employer only by virtue of that lawyer’s suspension.

                                             40
Zuckerman, 386 Md. at 374 (attorney violated 5.3(b) by failing to verify employees’

handling and reconciliation of the trust account). Samuel agreed to supervise Jonathan

after his suspension.

       Jonathan wrote 86 checks on the trust account after his suspension. A review of the

Firm’s ledgers and bank records would have revealed this activity. Samuel should have

discovered Jonathan’s misconduct far sooner than he did. Samuel directed Jonathan to

consult with Hesselbacher and follow his advice. Samuel testified that he reviewed Rule

5.3 to understand a supervisor’s obligations. These are appropriate first steps for a

supervisory attorney, but the circumstances demonstrate their insufficiency. A lawyer may

violate 5.3(b) even if he or she puts policies in place for nonlawyer employees but does not

follow through on ensuring compliance. See Glenn, 341 Md. at 481 (attorney violated

5.3(b) because although he had a manual describing how to handle the trust account, he did

not ensure employees understood or complied). Samuel failed to make reasonable efforts

to supervise Jonathan’s activity, thereby violating 5.3(b).

       Samuel did not order or ratify Jonathan’s activities with the trust account—he did

not know what Jonathan was doing. This illustrates his failure to supervise but is

insufficient to find a violation of 5.3(c)(1).

       To impute an employee’s misconduct to an attorney under 5.3(c)(2), four elements

must be present: (1) the employee’s misconduct would violate the MLRPC if the attorney

did it; (2) partnership status or a direct supervisory relationship; (3) the attorney’s

knowledge of the misconduct at a time when the consequences could be mitigated; and (4)

the attorney failed to take reasonable remedial action. Smith, 443 Md. at 380.


                                                 41
       Applying this analysis to Jonathan, the first two elements are met. Jonathan wrote

checks to cash from the trust account in violation of 1.15(a) and Md. Rule 16-609.17

Samuel was his direct supervisor. Samuel first had actual knowledge that Jonathan was

writing checks in June 2014 and directed him to stop. Bar Counsel has never shown that

Jonathan’s activities contributed to Leonard’s misappropriations, or that Jonathan’s

activities harmed anyone. Therefore, it is not clear that Samuel learned of the wrongdoing

at a time when the consequences could be mitigated. Jonathan wrote at least six more

checks after Samuel told him to stop doing so, but there is no evidence that Samuel knew

Jonathan ignored his directive. None of the checks were written to cash in violation of Md.

Rule 16-609.18 This certainly demonstrates Samuel’s indifference to his supervisory

obligation, but it is not sufficient to find a violation of 5.3(c)(2).

       5.3(d)(2)(G) requires an attorney who supervises a formerly admitted lawyer to take

reasonable steps to ensure that the formerly admitted lawyer does not “perform any law-

related activity” for a law firm or lawyer “with whom the formerly admitted lawyer was

associated when the act that resulted in the disbarment or suspension occurred . . . .” Bar

Counsel charged that Samuel knew that Jonathan engaged in law-related activities for the



       17
           MLRPC 1.15(a) requires attorneys to comply with Title 16, Chapter 600 of the
Maryland Rules, including then-Rule 16-609, which prohibits writing checks to cash from
a trust account. If Samuel had done this, he would have violated Md. Rule 16-609, and
correspondingly 1.15(a).
        18
           Maryland Rule 16-760(d)(3) prohibited Jonathan, as a suspended attorney, from
writing checks on the trust account. Because this Rule is not in the MLRPC it is not
relevant to Samuel’s liability for Jonathan’s conduct under 5.3(c)(2).




                                               42
Firm in violation of this proscription. 5.3(d) does not define “law-related activity,” and the

hearing judge observed that this Court has never addressed the term.

       5.3(d) was added in 2006 in connection with amendments to then-Rule 16-760.19

At that time, Md. Rule 16-760(d)(2), although not in effect, prohibited suspended or

disbarred attorneys from working as paralegals.           We asked the Rules Committee

(“Committee”) to draft a Maryland Rule permitting formerly admitted lawyers to work as

paralegals subject to a reporting requirement and supervision by a lawyer. See Minutes,

Standing Comm. on Rules of Practice & Procedure 2 (Oct. 14, 2005).

       The Committee eliminated Md. Rule 16-760(d)(2) and sent the Court a draft of

5.3(d). This draft was substantially similar to Rule 217(j) of the Pennsylvania Rules of

Disciplinary Enforcement. Unlike Rule 217(j), the Committee did not include a list of

permissible activities. Rather, they considered that a formerly admitted lawyer should be

allowed to “engage in the same law-related activities as any other nonlawyer, subject to the

conditions and restrictions set forth in the Rule[.]” Letter from Chairperson Joseph F.

Murphy, Jr. to the Court of Appeals 7–8 (Dec. 16, 2005).

       5.3(d)(3) is not intended to prohibit formerly admitted lawyers from engaging in

law-related activities. See MLRPC 5.3(d)(1)(A). But 5.3(d)(2)(G) specifically prohibits

any law-related activities by formerly admitted lawyers in a law firm or for a lawyer with

whom they were associated at the time of disbarment or suspension. The Pennsylvania

Rule shares this limitation, see Pa. R. D. E. 217(j)(4)(i), although the Note clarifies that it



       19
            This Rule has since been renumbered and amended as Md. Rule 19-742.

                                              43
is not intended “to prohibit a formerly admitted attorney from performing services that are

not unique to law offices such as . . . equipment maintenance, courier or delivery services,

catering, typing or transcription or other similar general office support activities.” Id.

Under 5.3(d), the Firm could employ Jonathan—provided he did not engage in law-related

activities.

       The hearing judge found that accessing Google Earth internet files was not a law-

related activity because it is not legal research, requires no legal knowledge, or specialized

skill. He considered it to be “basic litigation support” unrelated to legal research. We

agree—finding Google Earth images is closer to a general office support activity.

       Catzen testified that Jonathan used his computer after his suspension “in the normal

course of business.” Catzen identified files that had been created, modified, or accessed

from Jonathan’s computer during the relevant time frame, but not all of them related to

legal activities. The hearing judge considered that this was not clear and convincing

evidence that Jonathan’s computer was used in law-related activities because Catzen never

demonstrated what, if anything, Jonathan did to those files. We agree.

       Other documents on Jonathan’s computer, including interrogatories and letters to

the clerk, were only scanned and then converted to word processing documents. Jonathan

then provided the files to attorneys to draft responses. We consider that this activity is

consistent with permissible general office support.

       The more complicated questions arise from two other activities—whether sending

the Hill e-mail and making deposits to or disbursements from the trust account are law-

related activities within the meaning of 5.3(d)(3).


                                             44
       Because Pa. R. D. E. 217(j) served as a model for 5.3(d)(3), we consider it useful in

answering these questions. Pa. R. D. E. 217(j) identifies permissible law-related activities

by a formerly admitted attorney. Subsection (3) permits a formerly admitted attorney to

directly communicate with a client or third party:

              regarding a matter being handled by the attorney, organization
              or firm for which the formerly admitted attorney works only if
              the communication is limited to ministerial matters such as
              scheduling, billing, updates, confirmation of receipt or
              sending of correspondence and messages. The formerly
              admitted attorney shall clearly indicate in any such
              communication that he or she is a legal assistant and identify
              the supervising attorney.

Id. (emphasis added). The hearing judge determined that corresponding with clients is a

necessary step to gather the information to answer interrogatories and such correspondence

is a legal activity. The Hill e-mail was a direct communication with a client regarding a

matter that the Firm was handling. The e-mail updated Hill that the Firm had received

interrogatories and requested her to contact the Firm. We consider that this e-mail is

ministerial in nature. Jonathan did not discuss Hill’s matter and he testified that he sent

the e-mail at the direction of an attorney. The Hill e-mail is clerical work common to

administrative assistants—regardless of whether or not they work in a law firm. As such,

we do not conclude that this is a law-related activity under 5.3(d)(2)(G).

       Non-lawyers are permitted to handle financial matters for a law firm if an attorney

provides reasonable supervision and ensures that their conduct complies with the attorney’s

professional obligations. Cf. Glenn, 341 Md. at 478 (attorney could delegate bookkeeping

responsibilities to nonlawyer assistants with adequate supervision). Still, a supervisory



                                            45
attorney must take “reasonable steps” to prevent a formerly admitted lawyer from

“receiv[ing] funds from or on behalf of a client or disburs[ing] funds to or on behalf of a

client[.]” MLRPC 5.3(d)(2)(F).

       Jonathan, as a suspended attorney, was prohibited from receiving or disbursing

client funds. Jonathan wrote the checks to transfer “fees that had been received by the

[F]irm” to the operating account from the trust account. This counts as disbursing client

funds, and Jonathan’s actions therefore are inconsistent with 5.3(d)(2)(F). We do not

analyze, as the hearing judge did, whether it was a “law-related activity” under Rule

5.3(d)(2)(G).

       That Jonathan wrote checks is not sufficient to find that Samuel violated

5.3(d)(2)(F). The question is whether Samuel failed to take reasonable steps to prevent

Jonathan’s activities. We determine that Samuel violated 5.3(d)(2)(F) for the same reasons

he violated 5.3(b)—he did not adequately supervise Jonathan or make reasonable efforts

to prevent him from writing checks.20 See supra.

       Finally, Rule 5.3(d)(3) requires a supervising lawyer and a formerly admitted

attorney to file a notice of employment and written employment agreement with Bar

Counsel within 30 days after the employment has commenced. Samuel and Jonathan did

not comply with this requirement. See infra. Therefore, Samuel and Jonathan violated

5.3(d)(3).



       20
           The hearing judge also concluded that Jonathan violated 5.3(d)(2)(G). But
5.3(d)(2) sets out several obligations for a supervising lawyer, not the suspended lawyer.
For this reason, Jonathan could not have violated 5.3 (d)(2)(G).

                                            46
                                MLRPC 5.4(a) and (d)(1)

       5.4(a) prohibits a lawyer or a law firm from sharing legal fees with nonlawyers,

except in limited circumstances. Bar Counsel excepts to the hearing judge’s conclusion

that Samuel did not violate 5.4(a), claiming that Samuel “permitted Leonard to pay himself

from the trust account, including funds for legal services Leonard performed following his

suspension.”

       To find a violation of this rule, we require evidence showing that the attorney shared

fees with a nonlawyer in an impermissible arrangement. See Attorney Grievance Comm’n

v. Chapman, 430 Md. 238, 269 (2013) (lawyer violated 5.4(a) by forming consulting

arrangement with capital firm wherein clients would sign law firm retainer, capital firm

would handle the loan modification and the firms would split the fees); Attorney Grievance

Comm’n v. Brennan, 350 Md. 489, 493–94, 501 (1998) (lawyer violated 5.4(a) when he

split a $1,500 fee for legal services with a suspended lawyer he ostensibly employed as a

paralegal).

       Evidence generally relating to compensation from a firm is usually insufficient to

find a 5.4(a) violation without information proving that the compensation related to a fee-

sharing arrangement. See Barton, 442 Md. at 138 (no 5.4(a) violation when employee’s

tax forms showed a higher salary from the law firm than the lawyer testified employee

received, but there was no evidence attributing the salary to fee sharing). Our review of

the record reveals limited information about the Firm’s compensation structure. Samuel

described some of the checks Leonard wrote to him after his suspension as “disbursements




                                             47
of fees.” He said the clients were “firm clients,” and they could have been represented by

himself, Babest, or Loewenthal. There is no evidence that Leonard shared those fees.

       Bar Counsel’s primary support for the claim that Samuel impermissibly shared fees

with Leonard is a spreadsheet summary of information Leonard provided to Gilliss about

the status of client matters at the time the TRO went into effect, and the assertion that

Leonard took attorneys’ fees in eight of the matters on the spreadsheet. The spreadsheet

lists clients, identifies the date of the client’s accident, settlement amounts, liens, and

whether attorneys’ fees were taken. It does not identify when settlements took place, which

attorney represented the client, or who received fees.21 We agree with the hearing judge

that this is not clear and convincing evidence that Samuel violated 5.4(a) and overrule Bar

Counsel’s exception.

       5.4(d)(1) prohibits attorneys from “practic[ing] with or in the form of a professional

corporation or association authorized to practice law for a profit, if . . . a nonlawyer owns

any interest therein.” Leonard was the sole shareholder of the Firm. Samuel was employed

at the Firm. He continued practicing there after Leonard’s suspension. He did not form

the LLC until over seven months after Leonard’s suspension. Thus, Samuel violated




       21
         Bar Counsel relies on In re Tanella, 104 A.D.3d 94, 96–97 (N.Y. App. Div. 2013).
There, Tanella entered into an agreement with Professional Billing Services, a business
owned by two nonlawyers. They assumed control over the operations of Tanella’s law
practice and shared his attorney’s fees. Tanella is doubtful precedent to support Bar
Counsel’s claims because there is no evidence that Samuel and Leonard had such an
arrangement. Leonard carried on the Firm the same way he had before his suspension,
which included managing the Firm’s finances.

                                             48
5.4(d)(1) by continuing to practice in a professional corporation owned by a suspended

attorney.

                                       MLRPC 5.5(a)

       5.5(a) prohibits an attorney from practicing law in a jurisdiction “in violation of the

regulation of the legal profession in that jurisdiction or assist[ing] another in doing so.”

Bar Counsel excepts to the hearing judge’s conclusion that Samuel did not violate 5.5(a)

because Leonard was engaged in the unauthorized practice of law, and Samuel assisted

him “by giving him unfettered access to his attorney trust account, the office and the client

files as well as allowing Leonard to use his name to advance the perception that [the Firm]

was a legally permissible law firm.”

       Leonard ran the Firm after his suspension and settled cases. Settling cases is the

practice of law. See Attorney Grievance Comm’n v. Ambe, 425 Md. 98, 129 (2012).

Engaging in the practice of law during a suspension violates 5.5(a).            See Attorney

Grievance Comm’n v. Maignan, 423 Md. 191, 203 (2011). Our analysis however, turns

on whether Samuel assisted Leonard in this conduct.

       Attorneys violate this rule when they knowingly collaborate with suspended or

disbarred attorneys and permit or assist their continued practice. See Attorney Grievance

Comm’n v. Bocchino, 435 Md. 505, 535 (2013) (attorney violated 5.5(a) by permitting a

disbarred attorney to draft and file documents under his name without reviewing

documents, and did not enter into separate retainer agreement with disbarred attorney’s

clients); Brennan, 350 Md. at 500–01 (attorney violated 5.5(a) when he knew clients would




                                             49
perceive suspended attorney as an actual attorney, never signed a separate retainer

agreement, or corrected clients’ perception).

       Bar Counsel relies on Smith, 443 Md. at 368–69, in which we concluded an attorney

had violated 5.5(a) by regularly delegating authority to his nonlawyer assistant to “send

demand letters to insurance companies, settle claims, and provide legal advice to clients

without supervision . . . .” Samuel did not employ Leonard or agree to supervise him after

his suspension. Samuel testified that he had only observed Leonard engaging in clerical or

administrative activities after his suspension and had not observed him negotiating

settlements. He also testified that he had not asked or authorized Leonard to settle any

cases that he worked on or disburse funds. Bar Counsel has not offered any evidence

demonstrating that Samuel delegated tasks to Leonard. Samuel’s status as Leonard’s

employee, without more, is not sufficient for a violation of this Rule. There was no clear

and convincing evidence that Samuel violated 5.5(a).        We overrule Bar Counsel’s

exception.

       The hearing judge determined that Bar Counsel did not offer clear and convincing

evidence that Jonathan engaged in the practice of law after his suspension, or that Samuel

assisted him in such activities. Bar Counsel has not excepted to this conclusion. For

reasons discussed infra, we agree with the hearing judge that Jonathan did not engage in

the unauthorized practice of law. Therefore, Samuel did not violate 5.5(a) as applied to

Jonathan.




                                            50
                                     MLRPC 8.1(a)

       8.1(a) prohibits an attorney “in connection with a disciplinary matter” from

“knowingly making a false statement of material fact.” Bar Counsel charged Samuel with

multiple violations of this Rule relating to his May 2014 affidavit and his March 2015

statement under oath.     The hearing judge found that Samuel had not made any

misrepresentations. Bar Counsel excepts to five instances.22 To find a violation of 8.1(a),

“Bar Counsel is required to prove with clear and convincing evidence that [a] respondent’s

supposed false statements were made with the knowledge that such statements were false

when he made them.” Attorney Grievance Comm’n v. Mooney, 359 Md. 56, 78 (2000).

                                 The May 2014 Affidavit

   1. Samuel stated that he was unaware of Jonathan receiving client funds or making
      disbursements of client funds.

       Bar Counsel argues that we should infer Samuel’s knowledge of Jonathan’s check-

writing activities because Samuel was the only licensed attorney signatory, and had he

reviewed the Firm’s financial records, he would have discovered that Jonathan was writing

checks. Alternatively, Bar Counsel suggests that Samuel’s failure to do due diligence

before making his affidavit is “so reckless that it supports a reasonable inference that

Samuel knew his statement was false.”

       Samuel learned in June 2014 that Jonathan was writing checks. Bar Counsel failed

to prove by clear and convincing evidence that Samuel knew this statement was false when


        Bar Counsel’s Exceptions refer to six instances, but only identify five statements.
       22

Presumably the sixth is Samuel’s statement that he did not have managerial authority,
which we determined, supra, was an accurate assessment of matters at the Firm.

                                            51
he signed the affidavit. That Samuel should have known Jonathan was writing checks does

not transform a negligent statement into an intentional misrepresentation. See Mooney,

359 Md. at 78 (“[D]eceit and misrepresentation in a disciplinary action must be found to

be intentional.”). Statements made without specific knowledge, although careless and ill-

advised, do not satisfy this criterion. We overrule Bar Counsel’s exception.

   2. Samuel stated that Jonathan signed the 5.3 Agreement on July 10, 2013.

       Samuel’s statement was obviously incorrect. The 5.3 Agreement was submitted to

Bar Counsel in January 2014. Samuel admitted in his April 2017 deposition that he had

incorrectly identified the date and acknowledged his error again at trial. Judge Stringer

was in the best position to assess Samuel’s credibility and weigh the evidence. See Attorney

Grievance Comm’n v. Ward, 394 Md. 1, 27 (2006). He found that this erroneous statement

was not an intentional misrepresentation. Bar Counsel had always known that Jonathan

had not submitted his 5.3 Agreement within 30 days, and Jonathan’s 16-781(d) statement

explained that the Agreement was effective July 10, 2013. Bar Counsel’s exception is

overruled.

   3. Samuel stated that he had not delegated any legal tasks or law-related activity to
      Leonard.

       Bar Counsel asserts that Samuel “delegated his obligations to safekeep client and

third party funds and to create and maintain records associated with his attorney trust

account to Leonard.” But the record shows that Leonard always managed the Firm’s

finances. Samuel abdicated his affirmative duty to safeguard his client funds. But that

does not prove that he delegated any responsibilities to Leonard. Bar Counsel has not



                                            52
identified any evidence supporting this allegation and failed to prove it by clear and

convincing evidence. We overrule this exception.

   4. Samuel did not have managerial authority.

       Bar Counsel excepted to the hearing judge’s factual finding on this assertion. For

the reasons discussed, supra, we conclude that this statement was not a misrepresentation

and overrule any exception.

   5. Jonathan did not draft legal documents.

       Bar Counsel has not excepted to the hearing judge’s conclusion that this was not a

misrepresentation.   Babest and Loewenthal, two witnesses the hearing judge found

extremely credible, described Jonathan’s post-suspension conduct. None of the attorneys

in the Firm asked Jonathan to draft pleadings, discovery, or conduct legal research.

Catzen’s analysis did not demonstrate what Jonathan did to any of the files on the Firm’s

server. We agree that this is not clear and convincing evidence proving that Jonathan

drafted legal documents.

   6. The term “paralegal” in the 5.3 Agreement did not include drafting pleadings,
      discovery, doing legal research, or communicating with clients.

       Bar Counsel did not except to this conclusion. There is no evidence in the record

showing that Samuel and Jonathan had a different intention in using the word. We agree

there is insufficient evidence to find that this was an intentional misrepresentation.

   7. Samuel was not responsible for supervising Leonard.

       For the reasons set forth in our discussion of Samuel’s authority in the Firm, supra,

we conclude that this statement was not a misrepresentation.



                                             53
                               The March 2015 Statement

   1. “Samuel knowingly and intentionally testified falsely that Leonard was only
      involved in clerical and/or administrative matters following his suspension.”

      Bar Counsel excepts, asserting that at the time Samuel made his statement under

oath, he knew that Leonard had settled cases and made disbursements after his suspension.

The hearing judge found that this allegation “does not accurately state Samuel’s

testimony.” A review of the transcript confirms Judge Stringer’s assessment.

             [Bar Counsel]: What did you observe Leonard doing when he
             was in the office following his suspension in September of
             2013?

             [Samuel]: Clerical matters, administrative.

             [Bar Counsel]: Like what?

             [Samuel]: Checking mail, files, putting things into files that
             needed to be in files. That’s what I observed.

             [Bar Counsel]: Nothing else?

             [Samuel]: That’s what I observed. I didn’t observe more.
             That’s correct.

(Emphasis added). Bar Counsel is correct that Samuel knew the scope of Leonard’s post-

suspension activities in March 2015. But Bar Counsel did not ask what Samuel knew at

the time, only what he observed Leonard doing. She has not offered any evidence that

proves Samuel made a knowing and intentional misrepresentation in describing his

observations. We overrule this exception.

   2. “Samuel . . . testified falsely during his statement under oath on March 30, 2015 that
      he learned, for the first time, in August 2014, that Leonard had settled cases while
      suspended.”




                                            54
       Bar Counsel excepts, contending that based on the circumstances, Samuel

“necessarily knew” that Leonard was settling client matters, because he should have known

someone else was writing checks. In June 2014, Samuel e-mailed McCabe about a

conversation with Leonard during which he had told Leonard that an attorney needed to

handle settlements. Thus, she reasons, Samuel’s statement was a knowing and intentional

misrepresentation.

       During the March 2015 statement, Bar Counsel asked whether Samuel had learned

that Leonard was negotiating settlements after his suspension. Samuel testified that “[a]fter

everything turned over in August there were apparently cases that had been settled that

he—he settled them.” Bar Counsel asked if Samuel had learned this for the first time in

August, and Samuel agreed.

       The June 2014 e-mail to McCabe states:

              I explained that all settlements needed to be handled by myself
              or an attorney (or in theory a paralegal working under
              supervision of an attorney as is done at many firms) and he
              agreed. We worked out parameters for how to do that
              essentially making sure that I am available to make the calls
              and to take the calls. I am currently working through a box of
              files.

Samuel explained to McCabe that he initiated the conversation after realizing that there

were serious managerial and operational issues after a discussion with McCabe. The

hearing judge concluded that the e-mail was not an intentional misrepresentation, but a “2

month discrepancy[.]” We defer to his assessment of witness credibility, particularly

because he saw Samuel testify for nearly a day and a half. Ward, 394 Md. at 27. The e-

mail may “suggest” that Samuel knew, however, suggestion is not sufficient for the actual


                                             55
knowledge required for a misrepresentation. See Mooney, 359 Md. at 78. Although this is

a closer call, we conclude that the hearing judge did not err, and overrule Bar Counsel’s

exception.

       The hearing judge found that Samuel did not make misrepresentations when he

stated that Jonathan did not draft interrogatories or pleadings after his suspension and that

he could not recognize Leonard’s or Jonathan’s handwriting. Bar Counsel has not excepted

to these findings. We have already concluded that Jonathan did not draft legal documents.

We agree with the hearing judge that there is no evidence proving that Samuel feigned an

inability to recognize the handwriting.

       We overrule all of Bar Counsel’s exceptions regarding 8.1(a). There is not clear

and convincing evidence that Samuel made knowing and intentional misrepresentations

during the disciplinary investigation and proceedings. Therefore, he did not violate 8.1(a).

                                      MLRPC 8.1(b)

       8.1(b) provides that an attorney in connection with a disciplinary matter shall not

“fail to disclose a fact necessary to correct a misapprehension known by the person to have

arisen in the matter, or knowingly fail to respond to a lawful demand for information from

an admissions or disciplinary authority . . . .” Bar Counsel asserted that Samuel violated

this Rule in two ways. First, he “intentionally obstructed” the investigation during his




                                             56
March 2015 statement when he testified that he did not know, or could not recall, certain

material facts.

       Attorneys violate 8.1(b) by knowingly failing to respond to Bar Counsel’s requests

for information, such as letters, calls, or requests for documents.23 A review of the record

shows that Samuel answered Bar Counsel’s questions. His answers may not have been

satisfactory to Bar Counsel, but that is not sufficient to find a knowing failure to respond.

The hearing judge found that this was a “chaotic” time and observed that several witnesses

at trial had trouble recalling details. We agree that without evidence showing that Samuel

did recall, or entirely refused to answer, his statements that he could not recall specific

details are not sufficient to find a knowing failure to respond in violation of 8.1(b). Cf.

Attorney Grievance Comm’n v. Bellamy, 453 Md. 377, 403 (2017) (attorney violated 8.1(b)

by refusing to respond to Bar Counsel’s inquiries, and when asked to disclose her banking

institution, told Bar Counsel’s investigator to figure it out).

       Second, Bar Counsel alleged that Samuel and Jonathan violated 8.1(b) by failing

and refusing to provide evidence about the date the 5.3 Agreement was created. This is

based on three contentions: (1) after the June 2015 ransomware attack, Samuel

intentionally failed to ensure that metadata was preserved; (2) Respondents intentionally

concealed the date the 5.3 Agreement was created by back-dating the agreement; and (3)




       23
         See, e.g., Attorney Grievance Comm’n v. McLaughlin, 456 Md. 172, 199–200
(2017); Attorney Grievance Comm’n v. Johnson, 450 Md. 621, 646 (2016); Attorney
Grievance Comm’n v. Steinberg, 395 Md. 337, 354–55 (2006).


                                              57
Respondents fabricated claims of attorney-client privilege to conceal the date the

agreement was created.24

       The hearing judge found that Samuel did not ask Spiegelman to limit, delete, or omit

information, only to restore his files as soon as possible. Catzen had testified that the

metadata was not restored because the technician chose not to but admitted that he did not

know if metadata was enabled in the Firm’s word processing program, and that it is not

unusual to see legal documents without metadata.

       The 5.3 Agreement itself, although backdated, was not an attempt to conceal

information. Bar Counsel was aware when Hesselbacher submitted the document that it

was tardy—indeed, the record shows that a paralegal at the AGC alerted Hesselbacher to

the lapse. Respondents admitted at trial that the Agreement was drafted in November or

December 2013 because they, like Hesselbacher, had overlooked the requirement. The 5.3

Agreement was described as having an “effective” date of July 10, 2013, and Leonard’s

name is not on the letterhead, although he was still active as of that date.

       Respondents’ counsel asserted privilege over metadata in the copy of the 5.3

Agreement they had because it was the one Jonathan had used to communicate with

Hesselbacher. Hesselbacher did not draft the agreement, but it was not unreasonable for

Respondents’ counsel to proceed with caution when dealing with potentially privileged



       24
         This allegation was not charged in the Petition, although the hearing judge made
findings of fact and conclusions of law regarding the issue as it related to Bar Counsel’s
claims that the Respondents were attempting to conceal the date that the 5.3 Agreement
was created.


                                             58
materials. Ultimately, Respondents’ counsel provided the last modified date to Bar

Counsel and agreed to let Catzen look at the file. They also provided access to the Firm’s

server and Jonathan’s computer.25

       The hearing judge found that these incidents did not supply sufficient evidence to

prove that Respondents fabricated evidence to obstruct Bar Counsel’s investigation. Bar

Counsel has not excepted. We defer to the hearing judge’s findings of fact on this question,

and agree, for the same reasons, that Bar Counsel has not shown by clear and convincing

evidence that Respondents’ conduct violated 8.1(b).

                                       MLRPC 8.4

       Bar Counsel asserts that should we sustain her exceptions to the hearing judge’s

findings regarding 5.3 and 8.1(a), then we should find that Samuel violated 8.4(b) and (c)

by assisting Leonard’s criminal conduct,26 and by committing perjury in violation of

Maryland Code (2002, 2012 Repl. Vol.), § 9-101 of the Criminal Law (“CR”) Article in

both his May 2014 affidavit and March 2015 statement.


       25
          Samuel complied with the subpoena Bar Counsel sent asking for access to the
Firm’s file server. Samuel explained that it had “copious amounts of personal health
information of clients, of other information that was relevant to him, could have criminal
record information of somebody charged with a crime, all kinds of information that we felt
duty bound to protect.” The server also had a directory that Jonathan used to communicate
with counsel, which might contain privileged information. We observe that 8.1(b) permits
an attorney not to disclose “information otherwise protected by 1.6,” which addresses
confidentiality of information. We do not consider that Respondents erred by ensuring that
any agreement with Bar Counsel and its investigators would appropriately protect client
information or preserve attorney-client privilege.
       26
         Specifically, Maryland Code (2002, 2012 Repl. Vol.), §§ 7-104 (General Theft
Provisions) and 7-113 (Embezzlement—Fraudulent Misrepresentation by Fiduciaries) of
the Criminal Law (“CR”) Article.

                                            59
       8.4(b) provides that “it is professional misconduct for a lawyer to . . . commit a

criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a

lawyer in other respects.” To find a violation of 8.4(b), we must find “clear and convincing

evidence of conduct that would violate a criminal statute.” Attorney Grievance Comm’n

v. Agbaje, 438 Md. 695, 729 (2014). We then consider whether that conduct reflects

negatively on the attorney’s “honesty, trustworthiness, or fitness as a lawyer in other

respects.” Id. at 729–30. 8.4(c) states that an attorney commits professional misconduct

by engaging in “conduct involving dishonesty, fraud, deceit or misrepresentation.”

       Bar Counsel also asserted that Samuel made knowing and intentional

misrepresentations to SDAT by stating that he had not controlled the Firm’s finances. A

review of the record, however, demonstrates that Leonard managed the Firm’s finances

after his suspension. See supra. This, as Judge Stringer observed, “was the crux of the

problem with the trust account[.]” We agree. Samuel did not control the Firm’s financial

decisions—indeed, he shirked his 1.15(a) responsibility to safeguard client funds. We have

overruled Bar Counsel’s exceptions to 8.1(a) and 5.3.         Therefore, we overrule this

exception and find that Samuel did not violate 8.4(b) and (c).

       8.4(d) prohibits an attorney from engaging in “conduct that is prejudicial to the

administration of justice.” An attorney violates this rule when his or her conduct negatively

impacts “the public’s perception or efficacy of the courts or legal profession.” Attorney

Grievance Comm’n v. Rand, 411 Md. 83, 96 (2009). Relying on Smith and Zuckerman,




                                             60
and cases from other jurisdictions,27 Bar Counsel contends that regardless of our conclusion

on her other exceptions, Samuel violated this Rule by failing to properly manage the trust

account.

       In Smith, 443 Md. at 377, Smith comingled client and personal funds, permitted an

overdraft, failed to keep adequate records of disbursement, and violated 1.15(d). He also

abandoned his practice to a nonlawyer assistant who misappropriated substantial amounts

of money and engaged in the unauthorized practice of law. Smith failed to communicate

with clients, appear on their behalf, and respond to litigation documents. Id. at 377–78. In

Zuckerman, 386 Md. at 374, Zuckerman neglected his trust account, commingled client

funds, and failed to pay clients and medical providers for an extended period of time.

       Other cases finding 8.4(d) violations for mishandling trust accounts in violation of

1.15(a) similarly involve more severe Rule violations. See, e.g., Attorney Grievance

Comm’n v. Mahone, 451 Md. 25, 43 (2016) (attorney overdrew trust account, used funds

for unauthorized purposes, failed to create and maintain records, and comingled funds);

Mungin, 439 Md. at 315 (attorney was out of trust for nine client matters, failed to account

and disburse funds, invaded other clients’ trust monies, and did not promptly pay

providers); Attorney Grievance Comm’n v. Carithers, 421 Md. 28, 56 (2011) (attorney did



       27
           The other cases Bar Counsel relies on to support the exception that Samuel
violated this Rule are unpersuasive because the attorneys in those cases were not charged
with, or found to have committed, violations of the other jurisdiction’s equivalent of 8.4(d).
See Matter of Kwiatkowski, 275 A.D.2d 141, 143–44 (N.Y. App. Div. 2000) (attorney
violated New York rule prohibiting conduct “adversely reflecting on . . . fitness to practice
law”); Cleveland Metro. Bar Ass’n v. Zoller & Mamone, 41 N.E.3d 407, 411 (Ohio 2015)
(violations of 1.15 equivalent).

                                             61
not maintain a trust account, comingled and misappropriated funds); Attorney Grievance

Comm’n v. Maignan, 390 Md. 287, 296–97 (2005) (attorney did not maintain a trust

account and comingled funds).

       Although Samuel neglected his 1.15(a) obligations, which in turn, led to his failure

to supervise Jonathan, we think his violation was less severe than Smith or Zuckerman. He

did not have exclusive control over the account, and Bar Counsel has not shown that

Samuel was responsible for the overdrafts. We overrule Bar Counsel’s exception.

       An attorney violates 8.4(a) by breaching other Rules of Professional Conduct.

Attorney Grievance Comm’n v. McLaughlin, 456 Md. 172, 200 (2017). Because Samuel

violated MLRPC 1.15(a), 5.3(b), (d)(2)(F), and (d)(3), and 5.4(d)(1), we conclude that he

has violated 8.4(a).

                                         Jonathan

                         MLRPC 1.1, 1.2, 1.3, 1.4, 1.5, and 1.16

       We agree with the hearing judge’s conclusion that Jonathan did not violate MLRPC

1.1, 1.2, 1.3, 1.4, 1.5, and 1.16 in his representation of Jeter. Jonathan had two lengthy in-

person meetings with Jeter to discuss her case. He also maintained telephone contact with

her throughout the matter. He contacted the nursing program staff to investigate her claims.

See, e.g., Attorney Grievance Comm’n v. Dyer, 453 Md. 585, 662 (2017) (attorneys did not

violate rule of professional conduct regarding diligence when they sought to expeditiously

move the underlying litigation forward). After investigating, he concluded that Jeter had

no reasonable basis to contest her expulsion from the nursing program. Although Jeter

complained that Jonathan abandoned her case, she lacked a viable case. C.f., Attorney


                                             62
Grievance Comm’n v. Smith, 457 Md. 159, 216 (2018) (“When an attorney does nothing

whatsoever to advance the client’s cause or endeavor, . . . the attorney violates MLRPC

1.3.”) (cleaned up). The hearing judge determined that Jonathan called Jeter to inform her

of the disposition of her case, and we defer to his resolution of that factual question. See

Md. Rule 19-741(b)(2)(A).

                                    MLRPC 5.3(d)(3)

       The hearing judge determined that Jonathan violated 5.3(d)(3) through his failure to

timely submit his 5.3 Agreement to Bar Counsel. Jonathan resumed employment at the

Firm on July 10, 2013. According to 5.3(d)(3), Jonathan and Samuel were required to

submit notice of his employment at the Firm within 30 days after commencement of the

employment. Hesselbacher did not send the employment contract to Bar Counsel until

January 2014, after learning from a paralegal with Bar Counsel’s office that they had

overlooked the requirement. This violated 5.3(d)(3), as the hearing judge rightfully

found.28 See In re Perrone, 899 A.2d 1108, 1116 & n.10 (Pa. 2006) (formerly admitted

attorney violated Pa. R. D. E. 217(j) by failing to notify the Pennsylvania disciplinary

authority of his work as an independent contractor for a law office after suspension); see

also Letter from Chairperson Joseph F. Murphy, supra, at 1 (Pa. R. D. E. 217(j) is source

rule for MLRPC 5.3(d)(3)).




       28
             Jonathan did not except to the hearing judge’s conclusion that he violated
5.3(d)(3).

                                            63
                                    Md. Rule 19-609(b)

       Md. Rule 16-609(b) states that “[a]n instrument drawn on an attorney trust account

may not be drawn payable to cash or to bearer . . . .” The Rule further provides that “[a]ll

disbursements from an attorney trust account shall be made by check or electronic

transfer.” Id. Jonathan admits that he wrote checks from the Firm’s trust account to “cash”

in violation of this Rule. Accordingly, Jonathan violated Md. Rule 16-609(b).

                                       MLRPC 8.1(a)

       The hearing judge concluded that Jonathan violated 8.1(a) when, despite Jonathan’s

averments to the contrary in his Rule 16-781(g) affidavit, he failed to comply with Rule

16-760(c)(11) and (d)(3) by delaying notice of his employment and writing checks on the

attorney trust account. The hearing judge also found that Jonathan’s affidavit to Bar

Counsel misrepresented the frequency with which Jonathan wrote checks from the Firm’s

trust account following his suspension. Bar Counsel alleges that Jonathan made further

misrepresentations in his reinstatement efforts, specifically, in his assertion that he did not

give legal advice to clients and that he did not perform legal services for the Firm.

       8.1(a) provides that an applicant for reinstatement to the Bar shall not “knowingly

make a false statement of material fact . . . .” 8.1(b) states that an applicant shall not “fail

to disclose a fact necessary to correct a misapprehension known by the [applicant] to have

arisen in the matter, or knowingly fail to respond to a lawful demand for information from

an admissions or disciplinary authority . . . .”

       In his Rule 16-781(g) affidavit, submitted with his tardy 5.3 Agreement, Jonathan

stated: “I certify that I have complied with the requirements of Rule 16-760, including


                                              64
notifying clients, withdrawing from client matters, providing the required information and

documentation to Bar Counsel and the Attorney Grievance Commission, and notifying

directories.” (Emphasis added). Rule 16-760(c) lists specific obligations for suspended

attorneys. Subsection (11) required Jonathan to comply with 5.3. We determined, supra,

that Jonathan violated this Rule because he submitted his 5.3 Agreement after the 30-day

deadline. The question we now face is whether Jonathan’s statement in his Rule 16-781(g)

affidavit—that he had complied with Md. Rule 16-760—was a material misrepresentation

in violation of 8.1.

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

misrepresentations to Bar Counsel.” Attorney Grievance Comm’n v. Mitchell, 445 Md.

241, 259 (2015). In Attorney Grievance Comm’n v. Nussbaum, 401 Md. 612, 641 (2007),

we concluded that an attorney violated 8.1(a) after he submitted ledgers purporting to be

contemporaneously maintained with his escrow account transactions to Bar Counsel. The

ledgers were actually made after the fact. Id.; see also Attorney Grievance Comm’n v. Lee,

393 Md. 385, 411–13 (2006) (attorney violated 8.1(a) after attributing a delay in a client’s

case to the unavailability of transcripts when the attorney’s failure to timely review the

case materials caused the delay).

       Jonathan knew that he failed to submit his 5.3 Agreement to Bar Counsel in a timely

manner. Yet Jonathan still asserted his compliance with the Rules. Although Jonathan

submitted documentation regarding his late 5.3 Agreement, he still technically made a

misrepresentation because he had violated Md. Rule 16-760(c)(11) and then asserted

compliance with the same.


                                            65
       The hearing judge also concluded that Jonathan made a misrepresentation in his

affidavit because he had violated Md. Rule 16-760(d)(3) by writing checks against the

Firm’s trust account after his suspension. Maryland Rule 16-760(d)(3) prohibits a formerly

admitted attorney from using “any stationery, bank account, checks, or labels on which the

respondent’s name appears as an attorney or in connection with any office for the practice

of law . . . .” Hesselbacher provided Jonathan with a copy of Md. Rule 16-760 within days

of his suspension. Yet, in October, November, and December of 2013, Jonathan wrote

approximately 25 checks on the Firm’s attorney trust account. Even though he received a

copy of Md. Rule 16-760, and knew it prohibited writing checks in connection with the

Firm, Jonathan still represented to Bar Counsel that he had complied with Md. Rule 16-

760.   This rendered his affidavit asserting compliance with Md. Rule 16-760 a

misrepresentation in violation of 8.1(a).

       Bar Counsel argues that Jonathan made further misrepresentations in his Rule 16-

781(g) affidavit because he “engaged in the practice of law” or “attempted to engage in the

unauthorized practice of law” during his suspension. Bar Counsel would have us conclude

that Jonathan was practicing law when he sent the Hill e-mail. The e-mail stated:

              This is Jonathan Sperling from Leonard J. Sperling’s office.
              As part of the lawsuit the office filed on your behalf, we must
              answer interrogatories. The interrogatories are a series of
              written questions that are filed by each party as an information
              gathering tool. Please call the office . . . so that we can answer
              the questions together.

       Bar Counsel cites only Barton, 442 Md. at 140, for the proposition that Jonathan’s

e-mail constitutes legal advice and is therefore the unauthorized practice of law. In that



                                             66
case, we concluded that a lawyer violated the MLRPC after a nonlawyer assistant led

several clients to believe he was a lawyer and gave legal advice to several clients. Id. at

140.   The nonlawyer assistant’s actions amounted to the practice of law, and his

“supervising” attorney was sanctioned accordingly. Id. at 149. We must determine

whether sending the Hill e-mail constituted the practice of law. If it did, Jonathan

committed another violation of 8.1(a).

       “What constitutes the practice of law is a determination that, ultimately, this Court

makes . . . .” Attorney Grievance Comm’n v. Shaw, 354 Md. 636, 648 (1999). The General

Assembly has provided guidance regarding what constitutes the practice of law in

Maryland Code (1989, 2010 Repl. Vol.), § 10-101(h) of the Business Occupations &

Professions Article:

              (h)(1) Practice law — “Practice law” means to engage in any
              of the following activities:
                      (i) giving legal advice;
                      (ii) representing another person before a unit of the State
                      government or of a political subdivision; or
                      (iii) performing any other service that the Court of
                      Appeals defines as practicing law.
              (2) “Practice law” includes:
                      (i) advising in the administration of probate of estates of
                      decedents in an orphans’ court of the State;
                      (ii) preparing an instrument that affects title to real
                      estate;
                      (iii) preparing or helping in the preparation of any form
                      or document that is filed in a court or affects a case that
                      is or may be filed in a court; or
                      (iv) giving advice about a case that is or may be filed in
                      a court.

       The practice of law includes “[u]tilizing legal education, training, and

experience . . . [to apply] the special analysis of the profession to a client’s problem.”


                                              67
Kennedy v. Bar Ass’n of Montgomery Cty., Inc., 316 Md. 646, 662 (1989). “Where trial

work is not involved but the preparation of legal documents, their interpretation, the giving

of legal advice, or the application of legal principles to problems of any complexity, is

involved, these activities are still the practice of law.” Lukas v. Bar Ass’n of Montgomery

Cty., Inc., 35 Md. App. 442, 448, cert. denied, 280 Md. 733 (1977). Importantly though,

“practice of law [is] a term of art connoting much more than merely working with legally-

related matters.” In re Application of Mark W., 303 Md. 1, 19 (1985). The focus of our

inquiry is, “whether the activity in question required legal knowledge and skill in order to

apply legal principles and precedent.” In re Discipio, 645 N.E.2d 906, 910 (Ill. 1994).

       In Kennedy, we concluded that an attorney licensed in another state, but unlicensed

in Maryland, engaged in the unauthorized practice of law when he “set up his principal

office for the practice of law in Maryland and began advising clients and preparing legal

documents for them from that office . . . .” 316 Md. at 663. Reaching a different result, in

Mark W., 303 Md. at 19, we determined that an out-of-state attorney who worked as a

hearing examiner in Maryland for a state agency, did not practice law. The Court explained

that these activities were in a “very narrow, specialized field,” and that the work “involved

no clients, public or private.” Id.

       As to Jonathan, we think it unfair to say that merely sending the Hill e-mail

constitutes the practice of law. If we were to hold so, almost any paralegal, law clerk, or

administrative staffer would undoubtedly have engaged in the practice of law at some

point. Bar Counsel has not proven, by clear and convincing evidence, that Jonathan, during

his suspension, filed any papers in court or advised clients regarding legal issues in their


                                             68
cases. A singular e-mail to a client that defines the term interrogatories and directs her to

call the office’s main phone number does not constitute the practice of law. Accordingly,

Jonathan’s statement that he had not engaged in the practice of law was truthful and not a

misrepresentation.

       Jonathan also signed another affidavit in connection with his petition for

readmission to the Bar. In that affidavit, he said:

              1. I am one of several individuals with signature authority on
              the escrow account of The Sperling Law Office, P.C. I have
              signed checks drawn on that account on a limited number of
              occasions. I have never had any significant responsibility with
              respect to managing that account.

              2. On several occasions, when one of the other signatories on
              the account was not available, I was asked to write checks from
              the escrow account for payment of fees the law firm had
              earned. . . .

       Jonathan used the word “several” with reference to the fact that there were three

signatories on the account—and that he had written over 80 checks on the Firm’s escrow

account. His statement that he wrote checks “on several occasions” misrepresented the

number of times he had written checks on the escrow account. Surely, his use of the word

“several” was intended to obfuscate the true number of checks he wrote from the account.

We conclude that this statement was also a misrepresentation and a violation of 8.1(a).

       On March 11, 2014, Hesselbacher sent an e-mail to Bar Counsel, with Jonathan’s

express authorization, listing the tasks Jonathan performed at the Firm after his suspension

in his capacity as a paralegal. With Jonathan’s approval, Hesselbacher represented to Bar

Counsel that Jonathan performed the following tasks at the law office:



                                             69
                 • Managing supplies and equipment including the BGE
                   accounts[;]
                 • Office supplies – purchasing, servicing and ordering[;]
                 • Computer maintenance – servicing all the computers[;]
                 • Copier maintenance – repairing and maintaining all the
                   office copiers[;]
                 • Periodically answering the phones[;]
                 • Arranging for closed files to be picked up[;]
                 • Installing computer systems and programs on the
                   computer when needed[;]
                 • Repairing the phone systems when there is an issue[;]
                 • Photocopying when needed[;]
                 • Plumbing repairs on occasion[.]

       Jonathan did not mention that he made numerous deposits into and disbursements

from the Firm’s trust account. By failing to disclose these additional activities to Bar

Counsel, Jonathan made yet another misrepresentation and violated 8.1(a).

       Bar Counsel contends that the hearing judge erred by failing to find that Jonathan

made further misrepresentations in a letter submitted to Bar Counsel on December 5, 2014.

At the outset, we emphasize that this letter was signed by Jonathan’s attorneys, not

Jonathan himself. Unlike other documents, Bar Counsel did not establish a foundation

regarding Jonathan’s approval of the letter, or any representation he made to his attorneys.

Bar Counsel takes issue with only one sentence in the seven-page letter: “Further, since his

suspension, Jonathan has not engaged in the practice of law, attempted to engage in the

unauthorized practice of law, and has not engaged in any other sort of professional

misconduct.”

       Bar Counsel contends that Jonathan engaged in the unauthorized practice of law yet

represented otherwise in the letter. For the same reasons discussed, supra we conclude that



                                            70
Jonathan did not engage in the unauthorized practice of law. Bar Counsel further argues

that the statement in the letter was a misrepresentation because Jonathan had committed

misconduct, namely, making misrepresentations to Bar Counsel, failing to file a timely

notice of employment according to 5.3(d)(3), and using a bank account and checks for the

practice of law in violation of Md. Rule 16-760(d)(3).

       The letter, however, was not a sworn statement from Jonathan. Jonathan’s attorneys

advocated on their client’s behalf. They made numerous arguments as to why Jonathan

had not committed misconduct. The letter closes with the sentence Bar Counsel objects to,

by concluding—rightly—that Jonathan did not engage in the practice of law. They further

argued—less rightly—that Jonathan had not committed misconduct. While Jonathan’s

attorneys were ultimately wrong in their assertion that Jonathan had not committed

misconduct, we decline to hold that an attorney’s statement, made merely in the course of

advocating on behalf of his client, caused his client to violate 8.1(a).29

                                      MLRPC 8.1(b)

       Bar Counsel alleged in the Petition that Jonathan “knowingly and intentionally

testified falsely that he was unable to recall material facts in an effort to obstruct Bar


       29
          The hearing judge concluded that Jonathan misrepresented that he provided his
login credentials for his computer to all the attorneys in the office, including Michele
Loewenthal and Andrea Babest, and they used his credentials to log on to his computer.
Bar Counsel did not charge Jonathan with an additional violation of 8.1 based on this
testimony. Accordingly, we cannot conclude that Jonathan’s statements violated the
MLRPC. See Attorney Grievance Comm’n v. Cherry-Mahoi, 388 Md. 124, 153–54 (2005)
(sustaining exception to hearing judge’s conclusion that an attorney made a
misrepresentation in an Answer to a Petition for Disciplinary or Remedial Action, because
“no allegation was made, nor could be made, in the Petition, that the [attorney’s] Answer
to that Petition was misleading.”).

                                              71
Counsel’s investigation.” The hearing judge did not conclude that Jonathan violated 8.1(b).

Bar Counsel did not except to this conclusion. Upon our independent review of the record,

we conclude that Bar Counsel has not presented clear and convincing evidence that

Jonathan obstructed the investigation by knowingly and intentionally testifying falsely or

claiming an inability to recall material facts. Bar Counsel also contended that Jonathan

violated 8.1(b) by backdating his employment agreement with Samuel. For the reasons

discussed supra, in our analysis of whether Samuel violated 8.1(b), we conclude that

Jonathan did not violate 8.1(b).

                                      MLRPC 8.4(b)

       Bar Counsel alleged that Jonathan committed perjury as defined in CR § 9-101, and

accordingly charged that Jonathan violated Rule 8.4(b).        But Bar Counsel failed to

articulate in the Amended Petition what facts supported this charge. We have previously

held that charges must be “sufficiently clear and specific so as to make the attorney aware

of what he [or she] is compelled to answer for and defend against.” Bar Ass’n of Baltimore

City v. Cockrell, 270 Md. 686, 692 (1974); see also Attorney Grievance Comm’n v. Fezell,

361 Md. 234, 247 (2000) (“To be sufficient, a petition must be intelligible and sufficiently

informative to allow an accused attorney to prepare a defense.”). After the close of the

evidentiary hearing, Bar Counsel submitted Proposed Findings of Fact and Conclusions of

Law, which stated that Jonathan committed perjury in his Rule 16-781(g) affidavit when

“he falsely stated that he had ‘not engaged in the practice of law or attempted or offered to

engage in the unauthorized practice of law[’] and that he had ‘not engaged in any other sort

of professional misconduct’ since his suspension.” The hearing judge considered and


                                             72
rejected this theory, finding that “Petitioner failed to prove that Jonathan had engaged in

the practice of law or attempted to engage in the unauthorized practice of law . . . .” In

light of Petitioner’s failure to “prove a number of its allegations,” the hearing judge also

rejected the general charge that “Respondent’s conduct, taken as a whole . . .” constitutes

a violation of Rule 8.4(d).

       Consistent with the hearing judge’s findings, we hold that under these

circumstances, Bar Counsel’s allegation in the Amended Petition, in the form of a footnote,

was not sufficiently informative to make Jonathan aware of what allegedly constituted

perjury. Accordingly, we hold that Jonathan did not violate 8.4(b).

                                      MLRPC 8.4(c)

       8.4(c) provides that it is professional misconduct for a lawyer to “engage in conduct

involving dishonesty, fraud, deceit or misrepresentation . . . .” Jonathan violated 8.1(a) by

making misrepresentations to Bar Counsel in connection with his efforts to be reinstated.

Attorneys who engage in dishonest or deceitful conduct violate 8.4(c). See e.g., Attorney

Grievance Comm’n v. Smith, 425 Md. 230, 235 (2012) (attorney violated 8.4(c) by

submitting false documents in support of an application to practice law in the District of

Columbia). We agree with the hearing judge and conclude that by making false statements

to Bar Counsel and to this Court, Jonathan violated 8.4(c).

                                      MLRPC 8.4(d)

       It is misconduct for a lawyer to “engage in conduct that is prejudicial to the

administration of justice . . . .” MLRPC 8.4(d). Bar Counsel excepts to the hearing judge’s




                                             73
finding that Jonathan did not violate 8.4(d) and argues that Jonathan’s conduct “taken as a

whole . . . certainly brings the legal profession into disrepute in violation of Rule 8.4(d).”

       Bar Counsel relies only on Attorney Grievance Comm’n v. Page, 430 Md. 602

(2013), for the proposition that knowing and intentional dishonest conduct in reinstatement

proceedings violates 8.4(d). In Page, a suspended attorney continued to practice law yet,

while seeking reinstatement, represented to Bar Counsel and this Court that he had

complied with the terms of his suspension. Id. at 633–34. We concluded that these

statements violated 8.1 but ruled that additional misrepresentations, related to a client’s tax

matter, violated 8.4(d). Id. at 631–32. Page does not mandate that misrepresentations in

reinstatement proceedings, by themselves, are conduct prejudicial to the administration of

justice.

       Although we did not go so far in Page, we have recognized that an attorney violates

8.4(d) by being dishonest with Bar Counsel in connection with a disciplinary matter. See

Attorney Grievance Comm’n v. Thomas, 445 Md. 379, 396 (2015); Attorney Grievance

Comm’n v. Brigerman, 441 Md. 23, 40–41 (2014). In Thomas, an attorney violated a

Conditional Discipline Agreement with Bar Counsel, yet maintained that he had refrained

from using drugs and alcohol. 445 Md. at 396. Thomas also failed to disclose that he had

been discharged from a substance abuse program after failing to attend required counseling

sessions. Id. We concluded that by making misrepresentations to preserve his Conditional

Discipline Agreement and thus his right to practice law, Thomas’s conduct was prejudicial

to the administration of justice because “no reasonable member of the public” would expect

an attorney to engage in such behavior. Id.


                                              74
       Although Jonathan’s misrepresentations are not quite as severe as the attorney’s in

Thomas, he still vastly understated the number of checks he handled in connection with the

Firm’s trust account. He also made the less substantial misrepresentation that he had

complied with 5.3(d)(3). A reasonable member of the public would not expect Jonathan

to make misrepresentations to Bar Counsel to be reinstated. Therefore, Jonathan’s conduct

was prejudicial to the administration of justice and violated 8.4(d).

                                      MLRPC 8.4(a)

       8.4(a) provides that it is professional misconduct for a lawyer to “violate or attempt

to violate the [MLRPC], knowingly assist or induce another to do so, or do so through the

acts of another . . . .” Jonathan violated 5.3(d)(3), 8.1(a), (c), and (d). Accordingly,

Jonathan has also violated 8.4(a). See McLaughlin, 456 Md. at 200.

                              The Settlement “Agreement”

       Jonathan argues that the hearing judge improperly concluded that no settlement

agreement existed between him and Bar Counsel. Jonathan met with his lawyer and Bar

Counsel in 2015. At this meeting, Bar Counsel and Jonathan agreed, orally, to resolve “any

and all outstanding potential disciplinary actions [against Jonathan].” This purported

agreement was never reduced to writing. Jonathan argues that Bar Counsel repeatedly

acknowledged the existence of the settlement agreement, represented that Bar Counsel

would send a draft of the agreement, but never sent the draft.

       A review of the correspondence following the 2015 meeting however, reveals that

both Bar Counsel and Jonathan’s lawyer refer to only a “proposed” or “draft” agreement

that still required Jonathan’s approval. Bar Counsel repeatedly said she would draft a Joint


                                             75
Petition for Indefinite Suspension yet failed to do so. At best, this was an oversight. At

worst, it was misleading for Bar Counsel to imply that a joint petition would be

forthcoming. This does not change that Jonathan and Bar Counsel never finalized or

submitted a joint petition or received this Court’s approval. Upon our independent review

of the record, we agree with the hearing judge that the parties had not entered into a

settlement agreement regarding disciplinary actions against Jonathan.

                        Sanctions For Violations of the MLRPC

       Upon review of the record, we hold that Samuel violated MLRPC 1.15(a), 5.3(b),

(d)(2)(F), and (d)(3), 5.4(d)(1), and 8.4(a), and that Jonathan violated MLRPC 5.3(d)(3),

8.1(a), 8.4(a), (c), and (d), and Md. Rule 16-609(b).

       We impose sanctions on attorneys not as punishment, but “to protect the public and

the public’s confidence in the legal profession . . . [and] to deter other lawyers from

violating the Rules of Professional Conduct.” Attorney Grievance Comm’n v. Taylor, 405

Md. 697, 720 (2008). Sanctions should be “commensurate with the nature of the gravity

of the misconduct and the intent with which it was committed.” Id. Thus, a sanction

“depends upon the facts and circumstances of the cases, taking account of any particular

aggravating or mitigating factors.” Id. “[T]his Court considers ‘(a) the duty violated; (b)

the lawyer’s mental state; (c) the potential or actual injury caused by the lawyer’s

misconduct; and (d) the existence of aggravating or mitigating factors.’”         Attorney

Grievance Comm’n v. McDowell, 439 Md. 26, 45 (2014) (quoting American Bar

Association, Standards for Imposing Lawyer Sanctions at III.C.3.0 (1992)).




                                            76
                                   Aggravating Factors

       We have recognized the following aggravating factors:

              (1) prior attorney discipline; (2) a dishonest or selfish motive;
              (3) a pattern of misconduct; (4) multiple violations of the
              MLRPC; (5) bad faith obstruction of the attorney discipline
              proceeding by intentionally failing to comply with the
              Maryland Rules or orders of this Court or the hearing judge;
              (6) submission of false evidence, false statements, or other
              deceptive practices during the attorney discipline proceeding;
              (7) a refusal to acknowledge the misconduct’s wrongful nature;
              (8) the victim’s vulnerability; (9) substantial experience in the
              practice of law; (10) indifference to making restitution or
              rectifying the misconduct’s consequences; (11) illegal conduct,
              including that involving the use of controlled substances; and
              (12) likelihood of repetition of the misconduct.

McLaughlin, 456 Md. at 204 (cleaned up).

                                          Samuel

       The hearing judge found that none of the aggravating factors applied to Samuel.

Bar Counsel excepts, asserting that factors 2, 3, 4, 5, 6, 7, 9, 10, and 11 apply. We have

overruled Bar Counsel’s exceptions regarding misrepresentations and dishonest conduct.

For that reason, we overrule her exceptions to factors 2, 5, 6, and 11. The hearing judge

was in the best position to assess factors 7 and 10. Although Samuel did not offer

restitution to Leonard’s victims, he assumed some Firm expenses, assisted Firm clients,

and reduced his fees on some occasions. We overrule Bar Counsel’s exceptions.

       Factor 3, a pattern of misconduct, applies when an attorney’s behavior shows a

pattern of inappropriate conduct, as evinced by multiple violations over time, or a series of

acts with one goal. See, e.g., Attorney Grievance Comm’n v. Coppola, 419 Md. 370, 406

(2011); Attorney Grievance Comm’n v. Mininsohn, 380 Md. 536, 572 (2004). Here,


                                             77
Samuel’s misconduct stems not from a pattern of acts, but inattentiveness. Factor 3 is not

present.

       We sustain two of Bar Counsel’s exceptions. Because Samuel violated 1.15(a),

5.3(b), (d)(2)(F), and (d)(3), 5.4(d)(1), and 8.4(a), factor 4 is present. Samuel was admitted

to the Maryland Bar in 1996 and had approximately 16 to 17 years’ experience in the

practice of law. Our other cases indicate that this is sufficient to find factor 9. See Coppola,

419 Md. at 406–07. This finding, however, is tempered by Samuel’s inexperience in firm

management and the difficulty he faced in enforcing his father’s separation from the law

firm Leonard built and controlled.

                                           Jonathan

       Jonathan has prior disciplinary offenses, having been indefinitely suspended on July

5, 2013. See Attorney Grievance Comm’n v. Sperling, 432 Md. 471 (2013). Therefore,

factor 1 is present. Jonathan excepts to the hearing judge’s finding of factor 2, maintaining

that he did not act with a selfish or dishonest motive. Although Jonathan may not have

acted with a “selfish” motive—indeed he did not benefit from any of his misconduct—

Jonathan made a substantial misrepresentation in failing to disclose the number of checks

he had deposited or withdrawn. Jonathan’s extensive communications with Bar Counsel

regarding his efforts to be reinstated, and misrepresentations in documents submitted to

this Court do not diminish the dishonesty attributable to the misrepresentations in those

communications. We overrule Jonathan’s exception and conclude that he acted with a

dishonest motive. Accordingly, factor 2 is present.




                                              78
       Jonathan committed multiple violations of the MLRPC. Factor 4 is therefore

present. Because Jonathan submitted false statements to Bar Counsel during his efforts to

attain reinstatement, factor 6 is present. Turning to factor 7, Jonathan excepts, asserting

that he has acknowledged the wrongfulness of his conduct because he admitted that writing

checks during his suspension was improper. But Jonathan has refused to acknowledge that

his misrepresentations to Bar Counsel in discussing his check-writing activities were

wrongful. Thus, factor 7 is present. Jonathan, having been admitted to the Bar in 1998,

has substantial experience in the practice of law. Hence, factor 9 is present.

                                     Mitigating Factors

       Mitigating factors include:

              Mitigating factors include: (1) the absence of prior attorney
              discipline; (2) the absence of a dishonest or selfish motive; (3)
              personal or emotional problems; (4) timely good faith efforts
              to make restitution or to rectify the misconduct’s
              consequences; (5) full and free disclosure to the Commission
              or a cooperative attitude toward the attorney discipline
              proceeding; (6) inexperience in the practice of law; (7)
              character or reputation; (8) a physical disability; (9) a mental
              disability or chemical dependency, including alcoholism or
              drug abuse, where: (a) there is medical evidence that the lawyer
              is affected by a chemical dependency or mental disability; (b)
              the chemical dependency or mental disability caused the
              misconduct; (c) the lawyer’s recovery from the chemical
              dependency or mental disability is demonstrated by a
              meaningful and sustained period of successful rehabilitation;
              and (d) the recovery arrested the misconduct, and the
              misconduct’s recurrence is unlikely; (10) delay in the attorney
              discipline proceeding; (11) the imposition of other penalties or
              sanctions; (12) remorse; (13) remoteness of prior violations of
              the MLRPC; and (14) unlikelihood of repetition of the
              misconduct.

Attorney Grievance Comm’n v. Shuler, 443 Md. 494, 507 (2015) (cleaned up).


                                             79
       The parties dispute whether Attorney Grievance Comm’n v. Pennington, 387 Md.

565, 590 (2005), which prohibits good faith reliance on advice of counsel as a defense to

violations of the MLRPC, permits such reliance as mitigation.           In Pennington, we

concluded that Pennington could not use her consultation with an attorney as mitigation

because the attorney was not admitted in Maryland, and because her consultation sought

ratification for unethical conduct, rather than “an objective and reliable ethics

opinion . . . .” Id. at 598. But we did not explicitly foreclose that as a mitigating factor.

See id. at 595. As such, we conclude that the hearing judge did not err in considering

Respondents’ retention of experienced ethics counsel as mitigation.

       Bar Counsel further excepts to the hearing judge’s mitigation findings for

Respondents, arguing that the facts are not mitigation that this Court has recognized. We

disagree. The facts found by the hearing judge are within the realm of permissible

mitigating factors. See Shuler, 443 Md. at 507.

                                          Samuel

       Samuel has no prior disciplinary history. He did not misappropriate funds, or

personally profit from Leonard or Jonathan’s activities and did not engage in dishonest

conduct. Upon receipt of Bar Counsel’s initial correspondence, Samuel promptly retained

McCabe, an experienced ethics attorney, to assist him in responding to Bar Counsel.

Samuel responded to Bar Counsel’s requests for information, furnished requested

documents, granted access to the Firm’s server, and participated in multiple depositions.

He spent significant time working with Gilliss to identify victims of Leonard’s misconduct,

obtain compensation for the Firm’s clients, and reduced his fees in some cases. Regarding


                                             80
the circumstances during which the misconduct took place, the hearing judge considered

that it was “chaotic,” and Samuel worked with Babest and Loewenthal to keep the Firm

going, despite Leonard’s retaining control of the Firm even after he was suspended. The

hearing judge found that Samuel was remorseful.

      Samuel has a positive reputation in his community and volunteers with various

charitable organizations. He serves on the Board of his synagogue and devotes substantial

time on Board activities. He also has performed free legal services for members of the

congregation. Samuel also attends a Baltimore congregation, to achieve the necessary

quorum to hold prayer services, and provides them with free legal services. The hearing

judge favorably considered the testimony of Rabbi David Herman, who testified that

Samuel was a “mensch,”30 who “treats people with respect and sensitivity,” and who had

always been truthful with him. Rabbi Binyamin Marwick submitted a letter attesting to

Samuel’s good character.

                                        Jonathan

      Jonathan served as the president of his synagogue for seven and a half years. He

regularly meets with the rabbi, supervises all activities, including “raising money for

charity, religious events[,] and hearing about problems from the congregants.” He spends

16 to 20 hours weekly on this work. He also volunteers with “an organization that provides

and delivers meals to the poor.” Jonathan also “visits with the sick in hospitals and




      30
         Mensch is a “Yiddish term meaning conscientious, compassionate, caring and
responsible . . . .”

                                           81
participates in the Northwest Citizen Patrol.” In addition, he volunteers at his son’s school

and raises money for the school.

       Jonathan testified that his life has been an “emotional hell” since the Firm’s

implosion and that he has received counseling with a therapist and his rabbi to “right

[himself].” Jonathan also has a positive reputation in his community. He submitted a

character letter from Loewenthal describing him as a “man of honesty and integrity” who

has performed “many hours of community service within the synagogue and in the service

of the community.” Consistent with the mitigation discussed for Samuel, supra, Jonathan’s

retention of skilled ethics counsel to assist him, not in defending against charges, but in his

compliance with the Rules, is also a mitigating factor, in the sense that it shows a

cooperative attitude toward an attorney discipline proceeding.             Jonathan did not

misappropriate funds or personally profit from his check-writing activity. The hearing

judge also found that Jonathan cooperated with Gilliss and “expressed remorse for the

[F]irm’s clients who suffered losses as a result of Leonard’s misappropriation of money.”

   Samuel: Violations of MLRPC 1.15(a), 5.3(b), (d)(2)(F), and (d)(3), 5.4(d)(1), and
                                     8.4(a)

       Bar Counsel argues that Samuel’s conduct is akin to that of the attorneys in Smith

and Gracey, and merits disbarment. We disagree. Both of those attorneys engaged in far

more severe misconduct than has been found in this case. Smith, 443 Md. at 388–89

(disbarment appropriate for “inexcusable” neglect causing substantial harm to clients and

attorney had notice of misconduct of nonlawyer assistant); Gracey, 448 Md. 1, 27 (2016)

(disbarment warranted when attorney participated in employees’ scheme to defraud bank,



                                              82
took clients’ money without authorization, provided false statements, and altered

documents to Bar Counsel).

       In other cases in which an attorney violated 1.15(a), but did not intentionally

misappropriate client funds, we have imposed a range of sanctions. See, e.g., Attorney

Grievance Comm’n v. Obi, 393 Md. 643, 658 (2006) (30-day suspension); Attorney

Grievance Comm’n v. Sperling, 380 Md. 180, 192–93 (2004) (indefinite suspension with

right to reapply after 90 days); Attorney Grievance Comm’n v. Adams, 349 Md. 86, 98–99

(1998) (30-day suspension).

       Samuel’s misconduct was not intentional; rather it was the product of inattention to

his obligations. Samuel neglected his affirmative duties to safeguard clients’ funds. His

employer, a suspended attorney, misappropriated substantial sums of money. As a result,

three of Samuel’s clients were directed to the Client Protection Fund. This inattention

directly related to his failure to supervise Jonathan’s activities in writing checks.

       In Zuckerman, 386 Md. at 379, we considered an indefinite suspension with the

right to reapply after 30 days appropriate when an attorney improperly managed his trust

account, comingled client funds, and allowed money to accumulate that should have been

paid to third parties. Zuckerman’s inattention and failure to supervise permitted an

employee to misappropriate funds. Id. Samuel’s case is closer to Zuckerman than it is to

Smith or Gracey. Although Zuckerman discovered his employee’s misappropriation more

quickly, Samuel was not directly responsible for supervising Leonard and lacked

managerial authority in the Firm. Further, there is no evidence that Samuel’s failure to

supervise Jonathan contributed to Leonard’s misappropriation. Samuel cooperated with


                                              83
Bar Counsel’s investigation, demonstrated remorse, and presented substantial mitigation.

He has no prior disciplinary history. Under these circumstances, we consider that a 90-day

suspension from the practice of law is the appropriate sanction.

Jonathan: Violations of MLRPC 5.3(d)(3), 8.1(a), 8.4(a), (c), and (d), and Md. Rule 16-
                                     609(b).

       “[W]hen an attorney’s misconduct is characterized by ‘repeated material

misrepresentations that constitute a pattern of deceitful conduct, as opposed to an isolated

instance,’ disbarment follows as a matter of course.” Attorney Grievance Comm’n v.

Framm, 449 Md. 620, 667 (2016) (quoting Attorney Grievance Comm’n v. Lane, 367 Md.

633, 647 (2002)). In Framm, the respondent attorney failed to communicate effectively

with clients, lied to a client to conceal misconduct, and lied to and deceived the court to

the detriment of a former client and for her own monetary gain. Id. at 667–68. In Attorney

Grievance Comm’n v. Lane, 367 Md. 633, 647 (2002), we ordered disbarment of another

lawyer who engaged “in a pattern of deceitful and lying conduct designed to conceal his

lack of diligence.”

       Yet in other cases involving intentional misrepresentations, we have ordered only

an indefinite suspension. In Lee, 393 Md. at 412–13, we indefinitely suspended a lawyer

who made misrepresentations to Bar Counsel regarding the lawyer’s inactivity in a client’s

matter. Lee misrepresented the cause of delay in a client’s post-conviction case when it

was attributable to Lee’s failure to personally review the file for two years. Id. at 412–13.

We ordered an indefinite suspension in similar cases involving misrepresentation to Bar

Counsel. See Attorney Grievance Comm’n v. Granger, 374 Md. 438, 461–62 (2003)



                                             84
(indefinite suspension with right to reapply no sooner than six months warranted after

attorney neglected client matters and made misrepresentations to Bar Counsel); Attorney

Grievance Comm’n v. Cohen, 361 Md. 161, 171–79 (2000) (indefinite suspension with a

right to reapply no sooner than six months warranted following attorney’s neglect of a

client’s matter and false representations to Bar Counsel regarding the refund status of

unearned fees).

      According to Bar Counsel, Jonathan’s misrepresentations are part of a pattern of

deceitful conduct akin to the lawyers in Framm and Lane. But in those cases, the attorneys

made repeated misrepresentations about a variety of matters, to both clients and Bar

Counsel.    Here, although we do not understate the significance of Jonathan’s

misrepresentations, he made a total of three false statements to Bar Counsel.          He

misrepresented his compliance with 5.3(d), misrepresented compliance with Md. Rule 16-

760, and understated the number of checks he had deposited or withdrawn from the trust

account. These misrepresentations were serious, but Jonathan’s conduct is a far cry from

Framm and Lane, and closer to Lee, Cohen, and Granger. Accordingly, we shall order his

continued indefinite suspension. This suspension, and the underlying conduct, will be

considered adversely, in addition to the previous suspension and underlying conduct, if

Jonathan seeks reinstatement.




                                           85
                                           COSTS

Md. Rule 19-70931 empowers this Court to award costs to the prevailing party in an attorney

discipline proceeding. Relatedly, Md. Rule 19-728(b)(3) permits any party to file a

statement of costs to which that party may be entitled under Md. Rule 19-709. Under Md.

Rule 19-728(c) an adverse party is permitted to file a response to a statement of costs within


       31
            Md. Rule 19-709 provides:

                (a) Generally. Except as provided in section (c) of this Rule,
                and unless the Court of Appeals orders otherwise, the
                prevailing party in proceedings under this Chapter is entitled
                to reasonable and necessary costs. By order, the Court may
                allocate costs among the parties.
                (b) Costs Defined. Costs include:
                       (1) court costs;
                       (2) reasonable and necessary fees and expenses paid to
                       an expert witness who testified in the proceeding before
                       the circuit court judge;
                       (3) reasonable and necessary travel expenses of a
                       witness who is not an expert witness;
                       (4) reasonable and necessary costs of a transcript of
                       proceedings before the circuit court judge;
                       (5) reasonable and necessary fees and expenses paid to
                       a court reporter or reporting service for attendance at a
                       deposition and for preparing a transcript, audio
                       recording, or audio-video recording of the deposition;
                       and
                       (6) other reasonable and necessary expenses, excluding
                       attorneys’ fees, incurred in investigating the claims and
                       in prosecuting or defending against the petition for
                       disciplinary or remedial action before the circuit court
                       judge and in the Court of Appeals.
                                               ***
                (d) Judgment. Costs of proceedings under this Chapter,
                including the costs of all transcripts, shall be assessed by the
                Clerk of the Court of Appeals and included in the order as a
                judgment. On motion, the Court may review the action of the
                Clerk.

                                              86
15 days. Here, Respondents and Bar Counsel each filed a timely statement of costs

pursuant to Md. Rule 19-709. The AGC submitted a statement of costs totaling $37,270.45.

Respondents’ costs total $26,568.48. Both except to each other’s costs.

       Respondents contend that Md. Rule 19-709 only entitles the “prevailing” party to

costs. Because Bar Counsel did not prove all charges brought against Jonathan and

Samuel, Respondents reason we should not assess costs attributable to the claims that Bar

Counsel did not prove against them. Also, Respondents object to Bar Counsel’s costs

relating to Gilliss because he testified as a fact witness, not as an expert.

       This Court has yet to define “prevailing party” as it is used in Md. Rule 19-709. In

Attorney Grievance Comm’n v. Dyer, 453 Md. 585, 683 n.19 (2017), we elected not to

award costs to Bar Counsel even though Bar Counsel succeeded in proving one charge of

misconduct warranting a reprimand:

              Although we reprimand Mr. Dyer, as indicated in the mandate,
              we do not assess the costs against him; rather, we assess the
              costs against the Commission. We note that Bar Counsel
              brought numerous charges against Mr. Dyer, and, upon our
              independent review, we conclude that Dyer has engaged in
              misconduct involving only one violation of the MLRPC,
              MLRPC 8.1(b), for which he is hereby reprimanded. Only a
              fraction of costs of the attorney discipline proceeding can be
              attributed to the charged violation of MLRPC 8.1(b). We
              conclude that, under these circumstances, ordering costs
              against Mr. Dyer is inequitable. Even having Mr. Dyer and
              the Commission split the costs would not be equitable given
              that a large portion of the costs are due to alleged violations of
              the MLRPC that were not sustained and that the Commission
              failed to prove are supported by clear and convincing evidence.
              And, as determined above, none of the charged violations
              against Ms. Gray were proven with clear and convincing
              evidence. Accordingly, we shall assess the costs against the
              Commission.


                                              87
Id. (emphasis added).      Dyer demonstrates that equitable considerations animate our

decision to award costs in attorney discipline matters, but it does not offer a clear analytic

path to resolving who is the prevailing party.

       Cases from this Court have addressed prevailing party status in other contexts. In

Friolo v. Frankel, 373 Md. 501, 522–25 (2003), although we did not consider whether the

plaintiff was a prevailing party, in analyzing the method of calculating attorneys’ fees

under fee-shifting statutes in the Labor and Employment Article, we imported the

prevailing party analysis in Hensley v. Eckerhart, 461 U.S. 424, 433–37 (1983). From

Hensley, we drew the principle that a party may prevail if the party succeeds on any

significant issue that achieves some of the benefit sought in bringing the action. Friolo,

373 Md. at 523 (citing Hensley, 461 U.S. at 433).

       The claimant need not win all claims to be regarded as “prevailing.” Id. Assigning

fees is a matter of judicial discretion, and involves tailoring the fee to the results obtained,

a process analogous with determining equitable remedies. See id. at 524–25. Shifting

financial responsibility to a non-prevailing party must be in accordance with the underlying

policy of the statute or rule authorizing the imposition of fees. Id. at 517–18; see also

Armstrong v. Baltimore, 409 Md. 648, 685, 692–93 (2009) (although claimants did not

receive the relief sought, they succeeded in proving a statutory violation and were entitled

to an award of costs).

       “The primary purpose of attorney discipline is the protection of the public, not the

punishment of the attorney.” Attorney Grievance Comm’n v. Whitehead, 390 Md. 663, 674



                                              88
(2006).     Maryland Rule 19-709(a) states: “[U]nless the Court of Appeals orders

otherwise, the prevailing party in proceedings under this Chapter is entitled to reasonable

and necessary costs.” (Emphasis added). Ultimately, the determination of who is a

prevailing party will depend on this Court’s “determination in terms of an assessment,” on

a case-by-case basis. Minutes, Standing Comm. on Rules of Practice & Procedure 48 (Nov.

21, 2014). Bar Counsel need not prove all, or even a majority, of the allegations levied

against an attorney to be considered a “prevailing party.” Md. Rule 19-709 provides this

Court with wide discretion when awarding costs, particularly when an award might be

inequitable. See Dyer, 453 Md. at 683 n.19.

       Bar Counsel proved several violations by Respondents, and under these

circumstances is entitled to a costs award. But we do not just rubberstamp every cost that

Bar Counsel claims. See Md. Rule 19-709(a). We decline to award the following costs to

Bar Counsel:32

            • $16,970.45 in consulting fees from Catzen to analyze the computer files from

               the Firm, and another $1,270.90 for Catzen’s video deposition and transcript.

               The monies expended on Catzen resulted in no finding of misconduct against

               either Respondent.     As such, we conclude that these costs were not

               reasonable and necessary.




       32
         Bar Counsel submitted invoices for the cost of transcribing the evidentiary hearing
before Judge Stringer, but the costs of these transcripts are not included in the total of costs
submitted to this Court. We do not assess this cost against Bar Counsel or Respondents.


                                              89
           • $4,655.00 for Gilliss’s time spent corresponding with Bar Counsel and

              testifying. Gilliss was not an expert witness. Md. Rule 19-709(b)(2) permits

              the payment of reasonable and necessary costs related to expert witnesses but

              makes no such allowance for the payment of fact witness like Gilliss.33 See

              id. (b)(3).

           • $6,940.00 for the retrieval and printing of the Firm’s bank records from

              Wells Fargo Bank. At trial, McCabe testified that Samuel had already

              provided the bank records after Bar Counsel served him with a subpoena.

              Samuel acquired these records from the bank and then forwarded them to Bar

              Counsel. Bar Counsel had no need—that they have explained—to acquire a

              second copy of these bank records at a substantial cost. We conclude that

              this cost was not “reasonable and necessary.”

                                    CONCLUSION

      We hold that Samuel violated MLRPC 1.15(a), 5.3(b), (d)(2)(F), (d)(3), 5.4(d)(1),

and 8.4(a), and suspend him from the practice of law for 90 days. We hold that Jonathan

violated MLRPC 5.3(d)(3), 8.1(a), 8.4(a), (c), and (d), and Md. Rule 16-609(b), and

continue his indefinite suspension. Consistent with our discussion above, we assess costs

against Respondents, but in the reduced amount of $7,434.10.

                                                        IT IS SO ORDERED.




      33
         Prevailing parties may recover only “reasonable and necessary travel expenses of
a witness who is not an expert witness . . . .” Md. Rule 19-709(b)(3)

                                            90
Circuit Court for Baltimore County
Case No. 03-C-16-010146
Argued: March 5, 2018
                                           IN THE COURT OF APPEALS

                                                  OF MARYLAND

                                           Misc. Docket AG Nos. 40 and 76

                                               September Term, 2016
                                     ______________________________________

                                      ATTORNEY GRIEVANCE COMMISSION
                                              OF MARYLAND

                                                          v.

                                       SAMUEL SPERLING AND JONATHAN
                                               DANIEL SPERLING
                                     ______________________________________

                                                 Barbera, C.J.
                                                 Greene
                                                 Adkins
                                                 McDonald
                                                 Watts
                                                 Hotten
                                                 Getty,

                                                     JJ.
                                     ______________________________________

                                      Concurring and Dissenting Opinion by Watts,
                                               J., which Greene, J., joins.
                                     ______________________________________

                                                 Filed: May 21, 2018
       Respectfully, I concur in part and dissent in part. I join the Majority’s conclusions

as to the Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) that Samuel

Sperling (“Samuel”), Respondent, violated. See Maj. Slip Op. at 90. I also agree with the

Majority that the appropriate sanction for Samuel’s misconduct is a ninety-day suspension

from the practice of law in Maryland. See id. I join the Majority’s conclusions as to the

MLRPC that Jonathan Sperling (“Jonathan”), Respondent, violated. See id. I disagree,

however, that the appropriate sanction for Jonathan’s misconduct is to continue his existing

indefinite suspension from the practice of law in Maryland. See id. at 85, 90. In my view,

Jonathan’s serious misconduct, the many aggravating factors, and the existence of an

indefinite suspension warrant disbarment.

       Jonathan violated MLRPC 8.1(a) (Disciplinary Matters) and 8.4(c) (Dishonesty,

Fraud, Deceit, or Misrepresentation) by falsely averring in an affidavit regarding his

actions as a suspended lawyer that he had complied with Maryland Rule 16-760, and by

misrepresenting the number of checks that he had written on the Sperling Law Office’s

attorney trust account after he was suspended. See Maj. Slip Op. at 64-66, 69, 73. Jonathan

committed this misconduct while already indefinitely suspended from the practice of law

in Maryland; he has presented no compelling extenuating circumstances, as required under

Attorney Grievance Comm’n v. Vanderlinde, 364 Md. 376, 413, 773 A.2d 463, 485 (2001);

and his misconduct is exacerbated by multiple aggravating factors.

       There is no justification for imposing a sanction of indefinite suspension when

Jonathan was already indefinitely suspended from the practice of law at the time that he

committed the dishonest conduct in this case. In imposing a second indefinite suspension,
the Majority attempts to distinguish between degrees of dishonest conduct, and concludes

that Jonathan’s dishonest conduct was not severe enough to warrant disbarment. See Maj.

Slip Op. at 85 (“According to Bar Counsel, Jonathan’s misrepresentations are part of a

pattern of deceitful conduct akin to the lawyers in [Attorney Grievance Comm’n v. Framm,

449 Md. 620, 144 A.3d 827 (2016)] and [Attorney Grievance Comm’n v. Lane, 367 Md.

633, 790 A.2d 621 (2002)].            But in those cases, the attorneys made repeated

misrepresentations about a variety of matters, to both clients and Bar Counsel.”). This

Court has stated, time and time again, that, where dishonest conduct is involved, the Court

will not engage in such an inquiry. In Vanderlinde, 364 Md. at 418, 773 A.2d at 488, we

stated:

          [W]e will not in the future attempt to distinguish between degrees of
          intentional dishonesty based upon convictions, testimonials or other factors.
          Unlike matters relating to competency, diligence and the like, intentional
          dishonest conduct is closely entwined with the most important matters of
          basic character to such a degree as to make intentional dishonest conduct by
          a lawyer almost beyond excuse. Honesty and dishonesty are, or are not,
          present in an attorney’s character.

See also Attorney Grievance Comm’n v. Smith, 457 Md. 159, 223, 177 A.3d 640, 678

(2018) (same) (quoting Vanderlinde, 364 Md. at 418, 773 A.2d at 488).

          And, the Majority compares Jonathan’s conduct to that of the respondents in

Attorney Grievance Comm’n v. Lee, 393 Md. 385, 903 A.2d 360 (2006), Attorney

Grievance Comm’n v. Cohen, 361 Md. 161, 760 A.2d 706 (2000), and Attorney Grievance

Comm’n v. Granger, 374 Md. 438, 823 A.2d 611 (2003). The Majority states: “The[]

misrepresentations were serious, but Jonathan’s conduct is a far cry from Framm and Lane,

and closer to Lee, Cohen, and Granger.” Maj. Slip Op. at 85. In Lee, Cohen and Granger,


                                              -2-
however, the respondents were not already indefinitely suspended from the practice of law

when the Court imposed the sanction of indefinite suspension.

       Here, Jonathan’s misconduct is aggravated by numerous factors. First, Jonathan has

received prior attorney discipline, in the form of an indefinite suspension. See Attorney

Grievance Comm’n v. Sperling, 432 Md. 471, 498, 69 A.3d 478, 494 (2013). Second and

third, the hearing judge found that Jonathan had a dishonest or selfish motive and engaged

in submission of false evidence, false statements, or other deceptive practices during this

attorney discipline proceeding. The hearing judge found that, by falsely averring that he

had complied with Maryland Rule 16-760; by falsely testifying that other lawyers in the

Sperling Law Office used his credentials to log onto his computer; and by misleadingly

stating that he had written checks on the Sperling Law Office’s attorney trust account “on

several occasions[,]” “Jonathan made multiple misrepresentations with a motive to hide or

understate the extent of his activities after his suspension.” Fourth, given that Jonathan

violated MLRPC 8.4(c) both here and in Sperling, id. at 494, 69 A.3d at 491, Jonathan has

engaged in a pattern of misconduct. Fifth, Jonathan committed multiple violations of the

MLRPC. Sixth, Jonathan has refused to acknowledge his misconduct’s wrongful nature;

the hearing judge found: “Jonathan admitted to the wrongful nature of writing checks to

cash on the attorney trust account and writing checks on the attorney trust account while

suspended, but he has not acknowledged his misrepresentations.” Seventh, Jonathan had

substantial experience in the practice of law.

       I would conclude that the appropriate sanction for Jonathan’s misconduct is

disbarment. Chief among other misconduct, Jonathan violated MLRPC 8.1(a) and 8.4(c)


                                            -3-
by falsely stating in an affidavit concerning his actions as a suspended lawyer that he had

complied with Maryland Rule 16-760, and by misrepresenting the number of checks that

he had written on the Sperling Law Office’s attorney trust account after he was suspended.

“[D]isbarment ordinarily should be the sanction for intentional dishonest conduct, absent

compelling extenuating circumstances[.]” Attorney Grievance Comm’n v. McLaughlin,

456 Md. 172, 206, 171 A.3d 1205, 1225 (2017) (cleaned up). Here, Jonathan does not

allege that there are any compelling extenuating circumstances, and I discern none.

       Even if there were any doubt that Jonathan’s misconduct merits disbarment, such

doubt would be eliminated by the seven aggravating factors. Chief among those are the

circumstances that, less than five years ago, this Court indefinitely suspended Jonathan

from the practice of law, see Sperling, 432 Md. at 498, 69 A.3d at 494, and this Court has

not reinstated Jonathan to the practice of law in Maryland. Significantly, in Sperling, id.

at 494, 69 A.3d at 491, this Court concluded that Jonathan violated MLRPC 8.4(c) because

he “both misrepresented facts to the court in an effort to mislead the court into granting []

motions to reopen and lied to his client regarding the status of her case.” Given that

Jonathan has continued to engage in dishonesty, disbarment is necessary to protect the

public. Just as in Attorney Grievance Comm’n v. Ross D. Hecht, No. 97, Sept. Term, 2016,

___ Md. ___, ___ A.3d ___, 2018 WL 2146569, * 13 (Md. May 10, 2018) (Watts, J.,

dissenting), by imposing a second indefinite suspension, the Majority has given Jonathan

“yet another bite at the apple with respect to harming the public and further eroding the

public’s confidence in the legal profession.”

       For the above reasons, respectfully, I concur in part and dissent in part.


                                            -4-
Judge Greene has authorized me to state that he joins in this opinion.




                                    -5-
