Attorney Grievance Commission of Maryland v. Eugene Ignatius Kane, Jr. , Miscellaneous

Docket AG No. 5 , September Term, 2018 ATT ORNEY DISCIPLINE

– SANCTIONS

– INDEFINITE SUSPENSION Respondent Eugene Ignatius Kane, Jr. , violated the Maryland Lawyers’ Rules of Professional Conduct (“M L RPC”) 1.1, 1.2, 1.3, 1.4, 1.7, 1.16, 3.1, 3.3, 3.4, 8.1, and 8.4(a) and (d). These violations arose from Respondent’s misconduct during his represen tation of clients in two separate matters, as well as in his own personal bankruptcy filings and tax return filings. Taken together, Respondent’s violations warrant the sanction of indefinite suspension.Circuit Court for Montgomery County

Case No.: 44749 0

- V Argued: June 6, 2019 IN THE COURT OF APPEALS OF MARYLAND

Misc. Docket AG No. 5 September Term, 2018

ATTORNEY GRIEVANCE COMMISSION

OF MARYLAND

v. EUGENE IGNATIUS KANE, JR.

Barbera, C.J. * Greene McDonald Watts Hotten Booth Battaglia, Lynne A. (Senior Judge, Specially Assigned), JJ.
Opinion by Booth , J.

Filed: August 2 6 , 2019 *Greene, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the MD. Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion.This attorney discip line matter against Respondent, Eugene Ignatius K ane, Jr.

(“Respondent” or “Mr. Kane”) arises out of Mr. Kane’s representation of two clients , Mrs. Lonergan and Mr. Arvin, in separate matters , as well as his personal bankruptcy filings in the United States Bankruptcy Court for the District of Maryland, h is personal tax return filings and the related investigations of the Attorney Grievance Commission (“AGC”).
On May 1, 2018 , t he AGC , through Bar Counsel, filed a Petition for Disciplinary or Remedial Action (“Pe tition”) against Mr. Kane alleging that he had violat ed several provisions of the Maryland Lawyers’ Rules of Professional Conduct (“M L RPC”)

. Specifically, Bar Counsel charged him with violating Rules 1.1 (Competence), 1.2 (Scope of Representation and Allocation of Authority Between Client and Att orney), 1.3 (Diligence), 1.4 (Communication), 1.7 (Conflict of Interest: General Rule), 1.15 (Safekeeping Property), 1.16 (Declining or Terminating Representation), 3.1 (Meritorious Claims and Contentions), 3.3 (Candor Toward the Tribunal), 3.4 (Fairness t o Opposing Party and Counsel), 8.1 (Bar Admission and Disciplinary Matters), and 8.4 (Misconduct) of the Maryland Lawyers’ Rules of Professional Conduct

. 1 Mr. Kane was also charged with violating Maryland Rule 16

- 606. 1 2

1 Effective July 1, 2016, the MLRPC were renamed the Maryland Attorneys’ Rules of Professional Conduct (“MARPC”) and recodified in Title 19 of the Maryland Rules. Mr. Kane’s misconduct occurred before and after the recodification of the rules of profession al conduct. Because Mr. Kane violated the rules under both the MLRPC and the MARPC, and there is no substantive difference in the two codifications, we shall use the shorter designations of the MLRPC throughout this opinion, e.g. , “Rule 8.4” rather than

“ Maryland Rule 19

- 308.4.”

2 Effective July 1, 2016, this rule was re

- codified as Maryland Rule 19

- 407.2

Pursuant to Maryland Rule 19

- 722(a), this Court designated the Honorable David W. Lease of the Circuit Court for Montgomery County to conduct a n evidentiary hearing (the “attorney grievance hearing” or “hearing”) regarding the alleged violations, and t o provide findings of fact and conclusions of law pursuant to M aryland Rule 19

- 272

. The attorney grievance hearing was held between December 10, 2018 and December 14 , 2018. Mr. Kane represented himself throughout the hearing.
T he hearing judge issued Findings of Fact and Conclusion s of Law on March 14, 2019, in which he found by clear an d convincing evidence that Mr. Kane violated M L RPC 1.1, 1.2, 1.3, 1.4, 1.7, 1.16, 3.1, 3.3, 3.4 , 8.1, and 8.4

. 3 The hearing judge did not find a violation of M aryland Rule 16

- 606 .1

. Bar Counsel filed one e xception , which was to the hearing judge’s failure to find Mr. Kane’s prior warning by the AGC to be an aggravating factor. Mr. Kane filed a number of exception s to both the hearing judge’s findings of f act, as well as his conclusions of law

. 4

3 Following the hearing , Bar Counsel withdrew the allegation that Mr. Kane violated Rule 1.15(e).

4 Mr. Kane’s pleading titled “ Respondent’s Exceptions and Recommendations” (“Exceptions”) contains a section titled “Introduction,” which sets forth many facts and conclusions not contained in the record or found by the hearing judge. In his Exceptions, Mr. Kane essentially asks this Court to acce pt his version of the facts and overturn the hearing judge’s credibility determinations. To the extent that Mr. Kane’s “Introduction” contains exceptions to facts that are not specifically discussed below, they are overruled. As an initial matter, it sho uld be noted that a “factual finding is not clearly erroneous ‘[i]f there is any competent material evidence to support [it].’” Attorney Grievance Comm’n v. McDonald , 437 Md. 1, 16 (2014) (alterations in original) (quoting YIVO Inst. for Jewish Research v . Zaleski , 386 Md. 654, 663 (2005)). “The hearing judge is entitled to ‘pick and choose which evidence to rely upon’ from a conflicting array when determining findings3

Concerning the appropriate sanction, Bar Counsel recommends that Mr. Kane be disbarred for his violations of the MLRPC. Mr. Kane requests that this Court impose a reprimand as the appropriate sanction. On June 6, 2019, this Court heard oral arguments in this matter. Mr. Kane appeared a nd was represented by counsel. We address the parties’ exceptions below. For the reasons set forth herein, we hold that Mr. Kane’s violations warrant the sanction of indefinite suspension.

I. The Hearing Judge’s Finding s of Fact When no exception is made to a hearing judge’s finding of fact, we acc ept it as established. Md. Rule 19

- 741(b)(2)(A). When a party excepts to a finding, we must determine whether the finding is established by the requisite standard of proof

— in the case of an allegation of misconduct, clear and convincing evidence. Md. Rules 19

- 741(b)(2)(B), 19

- 727 (c). The standard of review for a hearing judge’s factual findings where a party excepts to the findings is the clearly erroneous standard. Attorney Grievance Comm’n v. Chanthunya , 446 Md. 576, 588 (2016) (cleaned up). We summarize the hearing judge’s
f indings of fact and other undisputed matters in the record. We also address any exceptions in relation to the findings to which they pertain as follows.

of fact.” Attorney Grievance Comm’n v. Guida , 391 Md. 33, 50 (2006) (quoting Attorney Grievance Comm’n v. Fezell , 361 Md. 234, 253 (2000)). Additionally, as set forth infra , although Mr. Kane notes many exceptions to both findings of fact and conclusions of law made by the hearing judge, he admits in many instances that he engaged in the c onduct upon which the violation is based.4 Mr. Kane’s Credentials and Practice 5
Mr. Kane graduated from Georgetown Law School in 1983 and was admitted to the Maryland Bar on December 20, 1983. He is a solo practitioner with a virtual office located in Montgomery County , Maryland . While Mr. Kane’s mail was delivered to his virtual office, he conducted meetings in public places, such as restaurants and coffee shops, and otherwise worked from his home, also located in Montgomery County. Mr. Kane did not have any administrative sup port, other than a receptionist at his virtual office. The Lonerg an Matter In 2006, Brian Lonergan and his wife (“Mrs. Lonergan”) purchased a PostNet
f ranchise. Soon thereafter, Mr. Lonergan established Montgomery Business Solutions, LLC (“MBS”) to operate the printing and shipp ing franchise. MBS traded under the names PostNet and PostNet MD 112 (hereinafter “PostNet”). Mr. Lonergan was the sole member and owner of MBS and managed the day

- to

- day operations of the store

. Mrs. Lonergan, an attorney, was not involved in the operation of the MBS business venture.

5 Mr. Kane excepts to the fact that, in the hearing judge’s summary of his practice, the hearing judge did not find that Mr. Kane “was also experiencing some personal financial difficulties with his mortgage lend er

— Wells Fargo

— which necessitated the filing of personal bankruptcy petitions by [] [Mr. Kane].” W e overrule this exception. Although the hearing judge did not incorporate this finding into his initial description of Mr. Kane’s practice, he found that, o n the eve of Mr. Kane’s five personal bankruptcy filings, Mr. Kane was facing a foreclosure on his home. Mr. Kane’s serial bankruptcy filings related to his attempts to negotiate his mortgage with his lender, a fact noted by the hearing judge in his writt en Findings of Fact and Conclusions of Law.5 1. PNC v. MBS In November 2010, Mr. Lonergan retained Mr. Kane to represent MBS in connection with collection efforts by PNC Merchant Services Company (“PNC”) after it was discovered that MBS ha d been the target of a credit card scam. Th e transaction at
issue involved a large order placed by a third

- party that was paid for with a stolen credit card. PNC claimed that MBS owed approximately $50,000 due to a charge back to MBS’s
account after the transaction was determined to have been frau dulent

. PNC cancelled MBS’s merchant account and placed MBS on a “blacklist , ” preventing MBS from
conduc ting credit card transactions. During their initial meeting, Mr. Kane indicated that he could attempt to negotiate a resolution with PNC

. Mr. Lonergan, through PostNet, retained Mr. Kane. Mr. Lonergan
testified that he did not recall discussing an hourly rate with Mr. Kane, but he understood that Mr. Kane would charge him an hourly rate for his services.
Mr. Kane attempted to negotiate a resolution with PNC , to no avail

. PNC would not agree to remove MBS from the b lacklist, which had the effect of preventing MBS from accepting credit card payments from its customers. As a result, in September of 2011, PNC filed a complaint against MBS in the Circui t Court for Montgomery County. Prior to trial, PNC offered to settle the matter by removing MBS from the blacklist in exchange for a payment of $50,719.25. It became apparent to Mr. Kane that MBS had no defense, so he investigated other option s. In early June of 2012, Mr. Kane advised Mr. Lonergan that he had consulted with a bankruptcy attorney , who recommended that they create a new entity to operate PostNet6

so that the business could continue to operate. 6 Mr. Kane indicated that the new e ntity would be able to process credit cards. Mrs. Lonergan, skeptical of this advice, asked Mr. Kane whether his proposed course of a ction could be successful , and whether there would be any associated risk. Mr. Kane told M r s. Lonergan that there was nothing wrong with attempting to operate under the new entity , although it might not be successful. Mr. Kane advised that the only potential risk was that the credit card processing company might discover a connection between MBS and the newly formed comp any, which could lead to the loss of the filing fees paid to create the new entity. Based upon Mr. Kane’s advice, the Lonergans agreed that Mr. Lonergan would form

a new company. The day before the PNC trial, Mr. Kane filed articles of organization with the Maryland State Department of Assessment and Taxation (“SDAT”) establishing Matrix Printing, LLC (“Matrix”). Matrix was registered to the same address as MBS and was intended to control and continue MBS’s printing and shipping franchise.
The followi ng day , Mr. Kane appeared in the circuit court on behalf of MBS. Mr. Kane advised PNC and the court that MBS would not contest the matter

. T he circuit court entered judgment in favor of PNC against MBS in the amount of $50,719.25. Mr. Kane

6 Mr. Kane excepted to this finding and contends that the hearing judge should have found that he discussed the Lonergan litigation strategies with two experienced lawyers. We overrule this exception. The hearing judge specifically found that Mr. Kane dis cussed this matter with an experienced bankruptcy attorney. The hearing judge is entitled to significant deference in assessing the credibility of witnesses and picking and choosing from the evidence presented and the inferences to be drawn from that evid ence. See Attorney Grievance Comm’n v. Page , 430 Md. 602, 627 (2013). Moreover, as discussed infra , the hearing judge did not find that Mr. Kane violated any Rule in connection with his recommendations and advice on the formation of the new entity.7

did not infor m PNC or the circuit court of the formation of Matrix prior to the entry of the judgment; however , t here was no duty to disclose such information. PNC commenced efforts t o collect on the judgment and garnished MBS’s bank
accounts. Mr. Kane advised Mr. L onergan that MBS should explore filing bankruptcy because PNC was unrelenting. M r s. Lonergan requested a telephone call with Mr. Kane regarding the potential bankruptcy filing. She again asked if there was risk or anything illegal about the creati o n of M atrix. Mr. Kane was adamant that there was no risk. Mr. Kane spoke with MBS’s accountant, Mr. Bur stein, as well as a bankruptcy attorney , and they both agr eed with his recommendation.

2. MBS Chapter 7 Bankruptcy
Mr. Kane filed a Chapter 7 Bankruptcy p etition on behalf of MBS in the United
States Bankruptcy Court for the District of Maryland (“Bankruptcy Court” ) in March of 2013. The filing contained numerous deficiencies, including the fai lure to file many schedules. On April 2, 2013, the Bankruptcy Court dismissed the petition because the deficiencies had not been cured. The following day, Mr. Kane filed an appearance of counsel and an affidavit for explanati on of non

- compliance and disclosure, wherein Mr. Kane advised that he did not have an accou nt to electronically file MBS’s pleadings. Mr. Kane also filed a motion to

r einstate Chapter 7, associated schedules , and a s t atement of f inancial a ffairs. Mr. Kane’s filings once again contained deficiencies. He failed to include the required declarati on from the debtor or to file a certificate of service as required by the bankruptcy rules.8

The Bankruptcy Trustee (“Trustee”) retained counsel, Jeffrey M. Orenstein, to investigate MBS and Matrix. The b ankruptcy judge granted the Trustee’s motion to va cate the dismissal of the bankruptcy , which allowed the Trustee to continue his investigation.
In the course of his investigation, Mr. Orenstein reviewed the bankruptcy petition prepared by Mr. Kane on behalf of MBS. Mr. Orenstein noted that the petition stated that MBS had

no assets ; however, there was no disclosure of any transfers by MBS or any closed bank accounts. Mr. Orenstein investigated the PNC litigation and concluded that there were potential claims that could be pursued on behalf of the bankr uptcy estate. 7 On February 2, 2014, Mr. Kane emailed Mr. Lonergan and advised that there were no updates in the Chapter 7 bankruptcy case . In this email, Mr. Kane inquired about how he was going to be compensated. At no time between November 2010 and February 2014 di d Mr. Kane provide an invoice or billing statement in connection with his representation of MBS. Mr. Kane stated that “if [I] did an itemized bill based on time it w ould be excessiv e. Thoughts on alternatives to hourly arrangement?” Mr. Kane and Mr. Lonergan agreed on a total fee of $12,000 with $5,000 to be paid immediately and the remainder in monthly installments of $1,000. Mr. Lonergan’s father sent two checks totaling $5,000 on behalf of Mr. Lonergan in February of 2014. One check in the amount of $2,000 referenced

7 M r. Kane excepts to the hearing judge’s findings concerning MBS’s bankruptcy and contends that the hearing judge “should have found that the [R]espondent advised Mr. Lonergan and the [Bankruptcy] Trustee that the [R]espondent was not an experienced bankrupt cy petitioner.” We overrule this exception. Even assuming that Mr. Kane advised the Lonergans and the Bankruptcy Court of his lack of experience, Mr. Kane is required to possess basic minimum standards of competence required by Rule 1.1 when representing his clients, which includes ensuring that schedules comply with the minimal bankruptcy requirements and that they are accurate.9

“Services/PostNet

. ” T he other check in the amount of $3,000 referenced “PostNet Legal Services.” On April 15, 2014, Mr. Lonergan requested a sta tement representing the agreed

upon amount owed. Mr. Kane provided Mr. Lonergan an invoice that day, which included time spent on the matter through March 9, 2011, as well as a “general entry” in the amount of $4,776.68 on April 15, 2014, which brought th e total invoice amount of $11,999. The invoice did not account for the February 2014 payments. Mr. Lonergan testified that his understanding was that the $12,000 would cover the case to its conclusion. Mr. Kane
testified that he had a clear understandin g that he would handle the bankruptcy matter without charge.

3. Adversary Proceeding Against MBS, Mr. Lonergan, Mrs. Lonergan , and Mr. Kane The Trustee’s investigation led to the filing of a Complaint to Avoid Transfers, for
Declarato r y Judgment, and to Re cover Mone tary Damages against Matrix, Mr. Lonergan , Mrs. Lonergan , and Mr. Kane

. The Complaint, which was filed in June of 2014 in the Bankrup tcy Court, consisted of ten counts, including civil conspiracy and a fraudulent conveyance based on the transfers allegedly made by the Lonergans and Mr. Kane between MBS and Matrix on the eve of trial in the PNC case (the “Adversary Proceeding”).
Mr. Kane d iscussed the Adversary Proceeding with Mr. Lonergan and advised him that he believed that the case wa s defensible because Mr. Kane had spoken to a bankruptcy attorney and to MBS’s accountant prior to creating Matri x and filing MBS’s bankruptcy. In August of 2014, Mr. Kane filed a Motion to Dismiss Complaint, or Alternatively, a Motion10

for More Definite S tatement of Same on behalf of Matrix, the Lonergans , and himself.
Mr. Kane had not discussed the complaint or his motion with M r s. Lonergan, nor did he have her authorization to take any action on her behalf.
F rom the outset of the Adversary Proceeding , counsel for the Trustee, Mr. Orenstein , had several discussions with Mr. Kane wherein he expressed concern regarding Mr. Kane’s ongoing repres entation of the Lonergans and Matrix. Specif i cally, Mr. Orenstein expressed concern about the fact that Mr. Kane was a named defendant against whom the Trustee was seeking damages, and that he would be a primary witness in the case. Mr. Orenstein told Mr. Kane several times that he did not believe that Mr. Kane could represent the Loner gans or Matrix in the Adversa

ry Proceeding because Mr. Kane was also a defendant.
I n August of 2014, the Bankruptcy Court held a pretrial hearing. Mr. Kane appeared on behalf of the defendants. As before, Mr. Kane had not discussed the complaint or the hearing with M r s. Lonergan , nor was he authorized to appear on her behalf. 8 The Lonergans were not present. At the hearing, the Trustee advised the Bankruptcy Court that Mr. Kane would be a witness and therefore, could not serve as counsel for the Lonergans or Matrix. After the hearing, Mr. Kane emailed Mr. Lonergan and informed him that the Trustee intended to file a motion to disqualify him as counsel in the case b e cause a lawyer cannot be

8 Mr. Kane excepts to the hearing judge’s finding. He contends that the hearing judge should have found that Mr. Kane believe d that Mr. Lonergan was advising Mrs. Lonergan on the status of the Adversary Proceeding and that Mr. Kane was not communicating with Mrs. Lonergan at Mr. Lonergan’s request because of serious marital issues. We overrule this exception. Mr. Kane had a du ty to discuss the Adversary Proceeding with Mrs. Lonergan, and the fact that Mr. Kane believed that the Adversary Proceeding was creating marital discord between his two clients only heightened this duty.11

a witness and act as counsel at trial. Mr. Kane stated that: “ [w]e will wa it to see what the Trustee files

. ” Mr. Kane did not withdraw as counsel for the Lonergans and Matrix in the Adversary P roceeding at that time, nor did he discuss his conflict of interest with the Lonergans.
I n September of 2014, the Trustee served interrogatories and requests for production of documents on each of the Lonergans. In November of 2014, the Trustee filed an amended complaint, wherein he add ed claims against the Lonergans and Mr. Kane related to the alleged fraudulent conveyance. Mr. Kane failed to communicate in any manner with
M r s. Lonergan about the amended complaint. On December 12, 2014

— more than two months after the discovery had bee n propounded

— Mr. Kane emailed Mr. Lonergan and asked how he was doing on the “discovery preparation

. ” On December 16, Mr. Orenstein wrote to Mr. Kane concerning the overdue discovery responses and stated that if responses were not received on or before
De cember 20, the Trustee would seek sanctions against the Lonergans. That same day, Mr. Kane emailed Mr. Orenstein and stated: “Client has been working on the responses. This is a very busy time of the year for the company. Anticipate responses shortly.” At that time, Mr. Kane still had not had any communications with M r s. Lonergan about the lawsuit that had been filed in which she was a named defendant , the outstanding discovery requests, or the response deadline. On January 4, 2015, Mr. Kane emailed M r. Lonergan about the discovery responses. Mr. Kane indicated that he was “very certain” that Mr. Orenstein was “going to insist [they]12

file the discovery responses this week.” Mr. Kane did not advise Mr. Lonergan that the responses were overdue or of the content of Mr. Orenstein’s December 16 letter. In January of 2015, Mr. Kane filed an Answer to the Amended Complaint on behalf of all the defendants, including himself. Again , Mr. Kane was not authorized by M r s. Lonergan to take any action on her behalf. On February 3, 2015, Mr. Orenstein once again wrote to Mr. Kane regarding the overdue discovery responses. Mr. Orenstein advise d that if discovery responses were not receiv ed by February 10 , he would file a motion for sanctions. On February 4 , Mr. Kane emailed Mr. Lonergan and indicated that they needed to “resume” their efforts on the discovery responses. Mr. Kane stated that he h ad a new deadline of February 10 to submit discovery responses. Mr. Kane did not advise Mr. Lonergan that the Trustee intended to file a motion for sanctions if responses were not received by February 10 . The deadline passed without any further communication between Mr. Kane and Mr. Orenstein. Having received no response from Mr. Kane to his February 4 email, Mr. Orenstein filed a motion for sanctions and motion to compel discovery against the Lonergans on February 16. On February 17, Mr. Kane, for the first time, emailed draft responses to Mr

. Lonergan and requested that Mr. and M r s. Lonergan review and sign the responses.
Mr. Kane did not advise the Lonergans of the pending motion for sanctions that had been filed against them. On March 4 , Mr. Kane emailed Mr. Lonergan and inquired about th e status of the responses. Again, Mr. Kane failed to advise Mr. Lonergan of the pending motion for sanctions. On March 7, Mr. Kane emailed Mr. Lonergan about the discovery13

responses and advised that a “motion to compel” had been filed. Mr. Kane stated t hat he wanted to get the discovery filed to “keep from sanctions for non

- filing.” As of March 7, Mr. Kane had failed to have any direct communications with M r s. Lonergan about the d iscovery and failed to advise either of the Lonergans that a pending
moti on for sanctions had been filed aga inst them three weeks earlier. The Bankruptcy Court scheduled a hearing for March 23, 2015. On March 19,
Mr. Kane finally provided complete discovery responses to Mr. Orenstein. Mr. Kane filed a response to the motion for sanctions on the day before the hearing. On March 23, the Bankruptcy Court heard the Trustee’s motion for sanctions.
Mr. Kane appeared on behalf of the Lonergans, who were not present. At the conclusion of the hearing, the Bankruptcy Court granted t he Trustee’s motion. After the hearing,
Mr. Kane failed to advise the Lonergans that sanctions had been entered against them. Instead, Mr. Kane sent Mr. Lonergan an email advising him that the Bankruptcy Court had granted the motion to compel and requested “the Trustee provide an estimate of the costs of preparing the motion and will [ sic ] us to negotiate, if possible, a reasonable reimbursem ent for the cost of the motion.” On April 17, 2015, the Bankruptcy Court entered an Order of Sanctions against the Lonergans in the amount of $3,197.25. Once again, Mr. Kane failed to advise M r s. Lonergan about either the Court’s grant of the motion

to c ompel or the sanctions order. In the fall of 2015

— over a year after the initial case was filed

— Mr. Kane advised Mr. Lonergan that the Lonergans need ed to retain new counsel because the Trustee intended to call Mr. Kane as a witness at trial. The Lonerga ns retained Michael P. Coyle as successor14

counsel. When the Lonergans consulted with Mr. Coyle, Mrs. Lonergan learned, for the first time, that she was a named defendant in the Adversary P roceeding and that sanctions had been entered against her.
Mr. Co yle recommended that the Lonergans attempt to negotiate a settlement with the Trustee. Prior to Mr. Coyle’s involvement in the case there had not been any legitimate settlement discussions between Mr. Orenstein and Mr. Kane. 9 Mr. Coyle entere d his
appear ance and negotiated a settlement with the Trustee prior to trial. The terms of the settlement required that the Lonergans and Matrix pay approximately $16,500 and that the Lonergans pay an additional $3,197.25 as sanctions associated with the parties’ dis covery violations. Mr. Kane never reimbursed the Lonergans for the amounts paid toward the sanctions. Trial proceeded on January 12, 2016, with Mr. Kane as the only defendant. The Trustee and Mr. Kane each made opening statements and conducted direct and cross

examination of Mr. Lonergan. During the lunch break, Mr. Kane, for the first time, advised Mr. Orenstein that he had filed a personal Chapter 13 bankruptc y petition in September of
2015

. Mr. Orenstein immediately advised the b ankruptcy j udge of Mr. Kane’s Chapter 13 filing, which require d that the proceedings against him be stayed immediately. The following exchang e occurred with the b ankruptcy j udge: MR. ORENSTEIN: Your Honor, I have to apologize to you and everybody else in this court room for wasting your time because Mr. Kane

9 Mr. Kane excepts to the hearing judge’s finding that he failed to engage in legitimate settlement discussions, and contends that he did in fact, have discussions, but to no avail. Based upon our independent review of the record, Mr. Kane’s exception to this finding is overruled. The hearing judge’s f inding is not clearly erroneous.15

just informed me that in September [,] he filed a Chapter 13 bankruptcy petition. THE COURT: Oh, no. MR. ORENSTEIN: And this case, as a result, is stayed as to him, although the trustee was not listed as a credito r and we knew nothing about that until just this moment. And you know how much time and effort and money we have spent on this because Mr. Kane has, once again, thrown us into the deep end. But we cannot, as a matter of law, go forward with this trial at this point. MR. KANE: Let me respond to that. I have been trying to

- - first of all, for personal privacy reasons, I have been trying to keep that out of any and all professional matters. That’s number one for my rationale. Number two, once I became th e sole defendant, and I asked counsel at the break, because we haven’t had any discussions since they left me as the sole defendant, monetarily, what are they seeking from me. Okay? I was given a number, okay, and I said that’s not even workable for me. The difficulty for me is that I’m trying to, as you can see, from September

- - I’ll give you the case number if you need it, Your Honor. THE COURT: Sure. MR. KANE: It’s 15

- 22874. It’s a mortgage issue. I’m trying to work out a mortgage issue with the m ortgage company, and I’m trying to resolve that issue on modification with Wells Fargo. And that’s what I’ve been dealing. So [,] on a personal note, I believed, and still do believe that the only financial exposure, if there is any in this case, is it re lates to my former clients, not for me. I’ve always provided professional advice. THE COURT: It doesn’t matter. You’ve been sued[,] and you should have advised the Court that you’re a Chapter 13. People who are

- - it stays the matter. And he could hav e made some other decisions, either about how he was going to settle it because you’re in Chapter 13, or chose not to pursue it, or whatever, or you could have agreed on a claim in the Chapter 13 case. But to have gone forward when there is an automatic st ay that goes into effect, and to have cause these people and the Court all of this time is

- - MR. KANE: But the Court was also clear, on several days, that you wanted this case tried today. THE COURT: But is wasn’t going to be

- - MR. KANE: And I wasn’t going to let that interfere. THE COURT: It can’t be

- - MR. KANE: I didn’t want my personal life to interfere. THE COURT: It can’t be tried if there’s an automatic stay. Even if I’m the judge, and I don’t know that I am in the 13, there is a n automatic stay that goes into effect, and it can’t be pursued unless they file a motion for relief from automatic stay. They can’t do it, ethically.16

All right. Well, we’re done for today; that’s for sure. Let’s just wrap this up.

* * *
THE COURT: Okay

. Are they listed as a creditor? They didn’t get notice. MR. KANE: No. THE COURT: Oh. MR. KANE: I list two creditors, Your Honor, the first and second mortgage; that’s the only people

- - THE COURT: They’re a

- - MR. KANE: I’m going to have to amend at this point. I understand I’m going to have to do all of that now that they’re made me a direct point of contact in this case. I thought it was peripheral; that’s my perception of it. But apparently the trustee doesn’t think so. THE COURT: Well, it’s not a matter of “apparently the trustee”; it’s the law. Read Section 362 of the Bankruptcy Code. MR. KANE: But I

- - you know, honestly, Your Honor, I get where

- - you know, if I get somebody that sues me for a court reporter bill for $300, I don’t list them on any financial reportings, and I do with any venue. Those are just minor things. I saw my role, personally, as far as personal exposure, as minor. THE COURT: It doesn’t matter; it’s still a claim. It needed to have been listed. MR. KANE: All right. At the attorney grievance hearing, Mr. Kane advanced various reasons f or his failure to disclose the Adversary P roceeding and list the Trustee as an unsecured creditor in his bankruptcy petition. The hearing judge found that Mr. Kane’s reasons for purposely omit ting the listing of the A dversary P roceeding were not permissible . The hearing judg e determined that Mr. Kane knowing ly and intentionally withheld material information from the Bankruptcy Court by failing to identify the Adversary Proceedin g. The hearing judge found that Mr. Kane was aware that he needed to list the claim. Mr. Kane acknowledged the willful nature of his omission to list the A dversary P roceeding in his personal17

bankruptcy filing when he advised the Bankruptcy Court that he failed to disclose the claim because “I have been trying to keep that out of any and all professional matters. . . .” Subsequently, the aut omatic stay was lifted , and the Adversary P roceeding against Mr. Kane went forward. The Bankruptcy Court found for Mr. Kane and entered a judgment in his favor. Mr. Kane excepts to the factual finding that he “knowingly and intentionally fi led a false bankruptcy petition, ” claiming that he firmly believed that he did not have to list the Adversary Proceeding because it was an “inchoate claim.” Although this may have been Mr. Kane’s belief, it was nonetheless incorrect. And the record described above shows that Mr. Kane’s omission was intentional. Based upon the facts outlined above, the hearing judge’s finding is not clearly erroneous. We overrule Mr. Kane’s exception.

4. Bar Counsel Inves tigation into Lonergan Complaint
Mrs. Lonergan filed a complaint with the Attorney Grievanc e Commission in June of 2016. Bar Counsel forwarded the complaint to Mr. Kane on September 6 and requested that Kane prov ide a written response within fifteen days. When Mr. Kane did not respond to Bar Counsel’ s request, Counsel sent a follow

- up request asking Mr. Kane to respond within ten days. On October 19, 2016 , Mr. Kane represented to Bar Counsel that his representation of MBS was on a pro bono basis. 10

10 As will be discussed infra , in the Conclusions of Law relating to Rules 3.3 and 8.1, the hearing judge found that Mr. Kane “believed he was proceeding on a pro bono basis given his thought process.” Because the court wa s not persuaded that there was clear and convincing evidence that Mr. Kane knowingly made a false statement, the hearing judge found that Mr. Kane did not violate Rule 8.1(a) based upon his testimony regarding work done on a pro bono basis.18

Bar Counsel requested that within ten days , Mr. Kane provide “additional
information and documentation” including “copies of all records cr e ated and maintained for the receipt, maintenance and disbursement of funds from the Lonergans, MBS and Matrix,” as well as “copies of cancelled checks and a full accounting of any payments”
received. Mr. Kane neglected to timely respond to this request.
Mrs. Lonergan provided supplemental information to Bar Counsel at the end of October 2016 . On November 16, Bar Counsel requested that Mr. Kane respond in writing, within seven days, to the new information provide d by Mrs. Lonergan. Three weeks later,
Mr. Kane provided a compact disc containing electronic files related to his representation of the Lonergans, MB S, and Matrix. However, t he information provided by Mr. Kane did not include “records associated with the receipt, maintenance and disbursement of client
funds ” that had been requested by Bar Counsel. Mr. Kane ultimately provided Bar Counsel with a photograph of the front of two checks but failed to produce a copy of another check in the amount of $ 1,0 00 that he received from Matrix

. Mr. Kane excepts to the hearing judge’s findings in connection with Bar Counsel’s investigation into Mrs. Lonergan’s complaint, arguing that “[t]he Court should have found that the record supports a finding that the [R]espondent’s family issues (serious illness of
his in

- laws) delayed his response to Bar Counsel’s inquiri es and that the [R]espondent ultimately appropriately engaged with Bar Counsel.” Mr. Kane’s exception is overruled.
The hear ing judge’s failure to make a specific finding that Mr. Kane’s delayed response was caused by his in

- laws’ failing health is not c learly erroneous. See Attorney Grievance Comm’n v. Vanderlinde , 364 Md. 376, 385 (2001) (“Exceptions to the findings of our19

hearing judges in attorney discipline matters should be directed to facts that he [or she] finds, or facts that he [or she] express ly rejects or expressly refuses to consider.”). As discussed infra, as a mitigating factor in Mr. Kane’s favor, the hearing judge found that Mr. Kane’s in

- laws’ failing health affected Mr. Kane emotionally and required significant time and energy for thei r care.

Mr. Kane’s Personal Bankruptcy Filings and Tax Returns
1. Serial Bankruptcy Filings
Mr. Kane filed five individual voluntary bankruptcy petitions under Chapter s 7 and 13 between February 26, 2014 , and April 4, 2017

. Each of the bankruptcy petition s w ere filed “on the eve of a foreclosure on his home” and were signed under the penalty of perjury. The hearing judge found that Mr. Kane’s “frequent and unsuccessful filings
constituted an abuse of the bank ruptcy process.”
Mr. Kane filed his first Chapter 13 bankruptcy peti tion i n February of 2014. The petition, schedules, and income statement were all de ficient and contained incorrect or misleading information. Specifically, Mr. Kane reported significantly less money in his checking account than his bank records demonstrated. Other items disclosed included monthly expenses, household furnishings, wearing apparel, and a vehicle, all of which were inconsistently reported on later bankrup tcy filings. The Bankruptcy Court denied
Mr. Kane’s Chapter 1 3 plan with leave to amend ; however, Mr. Kane neglected to file an amended plan. In July of 2014, the Bankruptcy Court dismissed this bank ruptcy petition. When Mr. Kane initiated his second Chapter 13 filing in September of 2015, the Adversary P roceedin g to which he was a party with the Lonergans and Matrix was pending20

in Bankruptcy Court . As noted supra , Mr. Kane failed to disclose th e Adversary Proceeding or list the Trustee as an unsecured creditor. In addition to these omissions,
Mr. Kane’s petition, schedul es, and income statement again were incomplete and contained
f alse or misleading information. At the attorney grievance hearing , Mr. Orenstein testified
that the information that Mr. Kane failed to provide on his schedules included , but w as not limited to , information relating to his bank account, ownership interest in his law practice, and office lease. The Bankruptcy Court dismissed this Chapter 13 petition in April of 2016, determining that Mr. Kane had “‘not properly prosecuted [the] action’ either by electing to convert it from a Chapter 13 case to another chapter or dismis sing the action.” Appr oximately seven weeks later, in June of 2016, Mr. Kane filed a third Chapter 13 petition

. Less than a month later, Mr. Kane filed amended schedules on which he listed claims for household goods and furnishings, electronic s , and clothes. On Schedule E/F, he also listed unsecured creditors whom he had not previously disclosed on his 2014 or 2015 bankruptcy filings. Additionally, on Schedule J, Mr. Kane listed expenses for “ telephone, cell phone, internet, satellite and cable; food and housekeeping; clothing and laundry and dry cleaning; personal care products and services; medical and dental expenses; travel expenses; entertainment; charitabl e contributions and religious donations; and insurance [,] ” none of which he had listed on his two earlier bankruptcy petitions. This petition was dismissed in De cember of 2016. Less than two months later, Mr. Kane filed a fourth bankruptcy petition for Chapter 7 bankruptcy. However, the same day, Mr. Kane filed a motion requesting that the case be converted to a Chapter 13 bankruptcy. This motion was granted. Nonetheles s, the petition21

was dismissed in Februa ry of 2 0 1 7 due to Mr. Kane’s failure to complete filings required by the B ankruptcy Court. Once again, less than two months after his last petition was dismissed, Mr. Kane file d a fifth Chapter 13 petition in April of 2017. The Chapter 13 Trustee filed a Moti o n to Dismiss with Prejudice for Bad Faith. In Mr. K ane’s response to this motion, he admitted that his serial bankruptcy filings were commenced in an effort to obtain a loan modification. The Trustee’s motion was granted; however, the order was la ter vacated after Mr. Kane established that he was current on his plan payments. Ultimately, the Chapter 13 Plan was denied , and in February of 2018, the Cha pter 13 petition was dismissed for failure to properly prosec ute the action. 11 The hearing judge found that Mr. Kane’s frequent and unsuccessful filings constituted an abuse of the bankruptcy process. The hearing judge found that Mr. Kane’s explanation at trial that “skeleton filings” are permitted in Bankruptcy Court and that he
fil ed the petitions “late at night when he was exhausted” does not absolve him from his repeated “omissions and inaccuracies in his filings” because they are evidence of “a knowing disregard for the accuracy of the multiple pet itions filed . . . under oath.” The hearing judge found that Mr. Kane d isclosed to the b ankruptcy judge that he intentionally does not include what he considers to be minor items when Mr. Kane stated

11 After Bar Co unsel filed the Petition for Disciplinary Action, Mr. Kane filed a sixth bankruptcy petition in November of 2018. Again, this Chapter 13 petition was deficient. The hearing judge took judicial notice of the Bankruptcy Court’s January 10, 2019 , order deny ing confirmation of the Respondent’s Chapter 13 plan, with leave to amend.22

that, “ If I get somebody that sues me for a court reporter bill for $300 I don’t list t hem on any financial reportings, and I do [ sic ] with any venue. They are just minor things. ” Mr. Kane excepts to the hearing judge’s finding that his frequent and unsuccessful filings were an abuse of the bankruptcy process. He claims that the filings ar e an attempt

“ to force a recalcitrant creditor to the negotiating table, ” which is a “common practice” and the different amounts in various schedules in the bankruptcy filings are explained by the fluid nature of a person’s financial situation. We overrul e this exception . Based upon our review of the record, the hearing judge’ s finding is not clearly erroneous. As set forth above, Mr. Kane filed multiple bankruptcy filings replete with incomplete and inconsistent information, and in each instance, the pe tition was dismissed. The hearing judge did not clearly err in finding that these multiple, serial incomplete filings constituted an abuse of the bankruptcy process.

2. Tax Returns During the attorney grievance hearing , Mr. Kane testified that he deducted 100% of his communication expenses for his sole proprietorship on his 2014 and 2015 Individual
Tax Returns , even though his wife and three children, who are not employees, also use these services. He also confirme d that he deducted amounts not r elated to the operation of his law practice, including the cost of his FIOS television. In his Findings, the hearing judge stated that , “[W]hile the Court acknowledges that the amount involved here is not great, that fact is not relevant to this Court’s f indings regarding the false statement

. ” Mr. Kane excepts to the hearing judge’s findings of fact that information on his tax
returns is false. Mr. Kane’s exception to the hearing judge’s finding of fact is overruled.23

The hearing judge’s finding is not clearly erroneous. Mr. Kane admitted that he deducts the full amount of the family cell phone expenses. Whether these deductions rise to the level a violation of Rule 8.4(b) or (c) is discussed infra when we address the hearing judge’s
conclusions of law

. Attorney Trust Account Overdraft In its Petition, Bar Counsel alleged a violation of Rule 8.1(b) regarding Mr. Kane’s response to its investigation into a trust account overdraft matter after Bar Counsel received notice from Bank of America that Mr. Kane’s trust account had b een overdrawn by $4.42

. While Mr. Kane did not respond to Bar Counsel’s initial request, he eventually answered and indicated that the error was due to his having inaccurately recorded the amount of some checks on separate occasions. Mr. Kane further explained that he wrote a check to a client that was “an overpayment to the client of under $5.00. No other client funds in t he account.” After Bar Counsel requested additional i nformation because Mr. Kane had “only identified the name, date, amount, status , and ‘value work done’ for each of the identified transactions,” Mr. Kane responded that he had “provided this information which is sufficient given the nature of these matters . You will need to outline why I need to provide anything further beyond this information [.] I do NOT have the time available to retrieve information on closed matters for a fishing expedition.”
The hearing judge f

ound that Bar Counsel did not set forth any proposed conclusions of law or articulate how Mr. Kane violated Rule 8.1(b) in his response to Bar Counsel. Consequently, the hearing judge treated that claim as abandoned by Bar Counsel. No24

exceptions were filed by Bar Counsel to the hearing judge’ s findings or conclusion on this charge. Although Mr. Kane filed an exception, the hearing judge did not find a violation. Accordingly, we will not address it further. Representation of Charles Arvin Charles Arvin worked for Lockheed Martin (“Lockheed” ) for 3 4 years. In the

s pring of 2012, Lockheed notified employees it was shutting down its battery laboratory in Clarksburg, Maryland . Among those workers affected were Charles Arvin and Sharon Sanbower. Ms. Sanbower was a part

- time chemical engineer w ho worked for Lockheed for 38 years. Mr. Arvin , a software engineer, earn ed an annual salary o f approximately $87,000

. Lockheed offered Mr. Arvin a severance package of approximately $50,000 . The severance package included “several provisions regarding the release of all claims against Lockheed with the exception of ‘any claims under applicable workers’ compensation statutes.’” Mr. Arvin had to either reject or accept the s everance offer within 45 days.
Mr. Arvin ’s last day of employment was June 27, 2012. During Mr. Arvin’s last days of employment, he inhaled a harmful electrolyte solution while opening a battery cell.
Mr. Arvin asserted that this exposure led to a persistent cough, permanent lung damage, and t he worsening of a preexisting anxiety disorder. At the urging of Mr. Arvin’s co

- worker, Sharon Sanbower 12 Mr. Arvin met with
Mr. Kane at a Starbucks in July of 2012 to discuss whether he should accept the severance

12 Mr. Arvin had known Ms. Sanbower for nearly 25 years and worked with her in the battery laboratory for approximately ten years. Ms. Sanbower was among the workers affected by the closing of the battery laboratory. Ms. Sanbower had retained Mr. Kane to represent her in a claim related to chemical exposure. Mr. Kane’s representation of Ms.25

package offered by Lockheed and the possi bility of pursuing a toxic tort claim

. Ms. Sanbower attended the meet ing with Mr. Arvin.
Mr. Kane told Mr. Arvin that in order to pursue a toxic tort lawsuit against Lockheed, he would have to waive any severance offer. Mr. Kane advised Mr. Arvin that
h is recovery in a toxic tort lawsuit would exceed the amount of the severance offer made by Lockheed. Mr. Kane also told Mr. Arvin that “I hate to see you take that settlement package for the little bit of money you’re going to receive.” He further advised Mr. Arvin that “you have a better chance of making more money in this lawsuit than would making [ sic ] in your severance.” Mr. Kane had no legal or factual basis to support this advice. He had not conducted any legal research, nor had he reviewe d any of Mr. Arvin’s medical records, and he had not consulted with any experts concerning the potential toxic tort claim. Mr. Kane did not advise Mr. Arvin of the risks associated with pursuing a toxic tort claim, including the costs of litigation. Mr. Kane failed to advi s e Mr. Arvin that he could accept the severance offer and still pur sue a worker’s compensation claim. Mr. Kane confirmed no fewer than six times at this initial meeting that Mr. Arvin should waive the severance offer. The hearing judge found that i n reliance on Mr. Kane’s “ uninformed advice ,” Mr. Arvin waived the severance offer and retained Mr. Kane to represent him in pursuing his claim against
Lockheed.

Sanbower is not a part of the charges that the Attorney Grievance Commission brought against Mr. Kane.26

Mr. Kane excepts to the hearing judge’s finding that he gave Mr. Arvin “uninfor med advice” and contends that he “gave him the best advice that he could

— based upon what he knew at the time

— that a toxic tort claim would be worth more than the severance package.” Mr. Kane further notes that Ms. Sanbower had already come to that conclus ion independent
of his advice . Mr. Kane’s exception is overruled. There is clear and convincing evidence
in the record that Mr. Kane had no basis in law or in fact for the “advice” that he gave
Mr. Arvin at that time, no r wa s it reasonable or appropriate for Mr. Kane to put any weight in research undertaken by Ms. Sanbower, a layperson, as it related to her separate matter, when advising Mr. Arvin.

1. Worker’s Compensation Claim

a. Occupational Disease In July of 2012, Mr. Kane filed t he first w orkers’ c ompensation claim on behalf of
Mr. Arvin , arguing that Mr. A r vin’s electrolyte exposure resulted in an occupational
disease. The claim described the accident as follows: “during closing the battery lab I was exposed to toxic chemicals. C ausing anxiety an d emotional distress with o ther problems.” At a hearing before the Maryland Worke rs’ Compensation Commission (“ WCC”),
Mr. Kane argued a “‘hybrid theory’ of liability

. ” Mr. Kane acknowledged that Mr. Arvin’s claim “ did not meet the exact criteria of an oc cupational disease and did not meet the exact

cr iteria of an accidental injury,” in part, because Mr. Arvin did not miss a sin gle day of work. Mr. Arvin’s claim was denied by the WCC in May of 2013. Mr. Kane filed a request for a rehearing, which was den ied.27

At the attorney grievance hearing, Mr. Kane and Mr. Arvin gave conflicting testimony regarding whether Mr. Kane had ever advised Mr. Arvin of his intent to present a “novel legal theory in an attempt to advance the law” or that there were any compli cations with his workers’ comp ensation claim. The hearing judge stated that he was unable to determine by “ clear and convincing evidence that Kane failed to advise Mr. Arvin of the novel hybrid theory.” Bar Counsel did not file any exceptions to this fin ding. Accordingly, we shall not consider it further.

b. First Judicial Review Case
Mr. Kane filed a petition for judicial review of the WCC’s decision in the Circuit Court f or Frederick County in July of 2013. Counsel for Lockheed Martin, Michael Daney, sent discovery requests to Mr. Kane
in August of 2013. Mr. Kane emailed them to Mr. Arvin, advising him that the responses to the discovery requests were due within 30 days. Mr. Arvin replied to Mr. Kane’s emai l advising him that he had “no clue what is a discovery request”. Mr. Kane never responded to Mr. Arvin’s email, and failed to take any action to complete the discovery responses for
more than four months. In September of 2013, the c ourt entered a sched uling order. In January of 2014, Mr. Kane forwarded to Mr. Arvin his proposed responses to Lockheed’s discovery request and
asked him to review them as Mr. Kane wanted to fi le them “asap.” Mr. Arvin responded by email and provided feedback on January 26, 2014. On January 28, Mr. Kane sent Mr. Arvin a final draft of the responses and also emailed Mr. Daney indicating he would have discovery responses “before the end of the day.” However, Mr. Kane never followed28

through on sending the final responses to M r. Daney, which le d to Lockheed filing a Motion for Sanctions, or in the Alternative, to Compel Discovery Responses. Mr. Kane failed to advise Mr. Arvin of the motion for sanctions. Mr. Kane finally provided signed discovery responses to Mr. Daney on Feb ruary 10, 2014. When Mr. Kane responded to the motion for sanctions, he blamed his delayed responses on Mr. Arvin’s “economic and medical constraints” indicating that they were impediments to his ability to obtain discovery responses. Mr. Kane also stated that he was a sole

- practitioner and had no staff, that his caseload had doubled , and that the complexity of Mr. Arvin ’s case had created additional challenges. The circuit court ultimately found the motion for sanct ions to be moot.
Mr. Kane waite d until five days before the discovery deadline to serve Lockheed with interrogatories. In response to Mr. Kane’s untimely filing of discovery, Lockheed fil ed a Motion for Protective Order. The circuit court granted Lockheed’s motion and ordered “that
th e discovery sought by the Claimant shall not be had.” Mr. Kane failed to advise his client that he propounded late discovery or that the court had granted a protective order. Mr. Kane f

a iled to identif

y experts in accordance with the court’s schedu ling o rder. Instead, Mr. Kane attempted to identify three experts in his pretrial statement, which was filed six days late. Lockheed filed a series of motions to preclude the testimony of two witnesses and to preclude evidence related to an accidental injury. Mr. Kane failed to respond to any of the motions, which were later granted by the court. Mr. Kane failed to advise Mr. Arvin of the motions or the court’s rulings. Mr. Kane v oluntarily dismissed the case in June of 2014, claiming that the petition was “p remature.”29

At the attorney grievance hearing, Mr. Kane argued that because Mr. Daney was aware of the experts from the WCC case, he was not bound to designate his experts in accordance with the scheduling order in the circuit court case. The hearing jud ge found “no merit” in Mr. Kane’s argument.

c. Accidental Injury Claim
Mr. Kane filed a second workers’ compensation claim on behalf of Mr. Arvin in April of 2014 in which he alleged an a ccidental injury. A h earing was held before the WCC, and in June of 2014, t he cl aim was denied.

d. Second Judicial Review Case
Mr. Kane filed a petition for judicial review in the Circu it Court for Frederick County in September of 2014. In October, Lockheed, through Mr. Daney, served
i nterrogatories and a request for production of documents o n Mr. Kane. In early F ebruary 2015, a scheduling order was entered, which among other things, established a discovery deadline and a deadline for disclosing experts. In April of 2015

— six months after discovery was propounded

— Mr. Kane sent Mr. Arvin draft responses for his review. The hearing judge did not find any evidence that Mr. Kane ever provided Mr. Arvin’s discovery responses to Lockheed. Lockheed and Mr. Arvin participated in a mediation in June of 2015 in which
Lockheed offered Mr. Arvin $10,000 to settle all of his claims. Mr. Kane advised
Mr. Arvin to reject the settlement offer because the amount was less than Lockheed’s original severance offer of $52,000. Notably, a t the attorney grievance hearing, Mr. Arvin testi fied that during th is mediation, he learned for the first time , and from the mediator, that30

he had not been required to waive the initial severance offer in order to pursue a workers’ compensation claim. One day prior to the discovery deadline, Mr. Kane propounded discovery upon Lockheed. Soon thereaft er, Lockheed’s counsel filed a motion for a protective o rder.
Mr. Kane filed an untimely opposition to the motion and also filed a motion to modify the

sc heduling order. The circuit court granted Lockheed’s motion, and ordered “that the discovery sought by the Claim ant shall not b e had . . .

. ” The court denied Mr. Kane’ s motion to amend the s cheduling order. As before, Mr. Kane failed to file expert designations by the deadline established in th e scheduling o rder. Once again, Mr. Kane attempted to identify four expert witnesses in an untimely pretrial statement. Given Mr. Kane’s failure to conduct discovery or identify experts in accordance with the court’s scheduling order, Lockheed filed a s eries of motions to preclude Mr. Arvin from presenting witnesses or evidence at trial. Once a gain, Mr. Kane failed to respond to Lockheed’s motions. The circuit court granted Loc kheed’s motions.
Lockheed filed a motion for summary judgment, based in pa rt on Mr. Arvin’s failure to identify an expert to “present a complicated medi c al question of causation

. ” Mr. K ane filed an untimely response the day before the hearing on the motion. T he circuit court granted Lockheed’s motion for su mmary judgment.
Mr

. Kane failed to inform Mr. Arvin of the existence of the motions or the fact that the court granted the motion for su mmary judgment. Mr. Kane file d a motion for reconsideration , which was denied.31

Mr. Kane filed a Notice of Appeal to the Court of Special Appeals in November of
2015. The Court of Special Appeals affirmed the circuit court’s decision in an unreported opinion, Arvin v. Lockheed Martin Corp. , No. 2170, 2017 WL 1034002 (Md. Ct. Spec. App. March 17, 2017).

e. Novelty of Wor kers’ Compensation Claim The hearing judge found that because Mr. Arvin’s workers’ compensation claim ha d unusual facts that did not conform neatly under either a claim for occupational disease or a claim for an accidental injury, Mr. Kane’s attempt to ex tend or modify the existing law with his hybrid theory was made in good faith. He further concluded that even though Mr. Kane’s argument s failed, they were not unethical. No exceptions were filed with regard to this finding and we shall not consider it f urther.
2. Toxic Tort Claim As noted supra , at the conclusion of their initial meeting in July of 2012, Mr. Arvin retained Mr. Kane to pursue a toxic tort claim against Lockheed. The hearing judge determined that the statute of limitations relating to thi s potential claim r an on or before July 2015. The hearing judge found that Mr. Kane “failed to take any meaningful steps to advance Mr. Arvin’s interests related to a toxic tort claim against Lockheed.” Mr. Kane excepts to the hearing jud ge’s factual finding that he “ did not do any work on the toxic tort complaint.” We overrule Mr. Kane’s exception. Based upon the facts described above, the hearing judge’s finding is supported by clear and convincing evidence.32

The record reveals that Mr. Kane first communicated with Mr. Arvin about the toxic tort claim in an email sent on September 9, 2013

— over a year after their initial meeting. In the email, Mr. Kane stated, “Nothing new and not [sic] trial date set. Working on the toxic tort complaint which is s eparate from the workers comp case.” The hearing judge found that “[t]here is no credible evidence that [Mr. Kane] [] did any work on the ‘toxic tort complaint’ related to Mr . Arvin’s claim as opposed to Ms . Sanbower’s claim. ” It is undisputed that a com plaint was never filed. The second and only other communication in the record from Mr. Kane relating to Mr. Arvin’s toxic tort claim was an email from Mr. Kane to Mr. Arvin dat ed April 25, 2014, in which Mr. Kane stated: Exchanged several emails to with Daney (counsel for LMC). They are eager to receive our settlement demand. Would like to get this to Daney by the weekend (before Monday). Will prepare a recommended settlement demand for your review sometime before Sunday hopefully. They want resoluti on of both workers compensation claims and any other possi ble claims (toxic tort exposure )

. There is no evidence that Mr. Kane ever communicated with Lockheed regarding
Mr. Arvin’s potential toxic tort claim. At the attorney grievance hearing, Mr. Kane testified that he determined in April of 2015 that he could not pursue a toxic tort claim o n Mr. Arvin’s behalf. Notwithstanding his position, Mr. Kane failed to advis e Mr. Arvin that he had determined the toxic tort claim could not be pursued, nor di d he provide Mr. Arvin with any explanation about his reasoning. Mr. Kane failed to present any credible evidence that he undertook any research or expended any time evaluating Mr. Arvin’s potential toxic tort claim. Notably, Mr. Kane33

failed to advise Mr. Ar vin of the relevant statute o f limitations for his tort claim in advance

o f the expiration of the deadline and that he would not be filing a complaint.

3. Bar Counsel’s Investigation into Arvin Complaint
Mr. Arvin filed a complaint with the Attorney Grievance Commission against Mr. Kane in May of 2017. Mr. Kane failed to respond to Bar Counsel’s first correspondence in which they sent him a copy of the complaint and reques ted that Mr. Kane respond within fift een days. After Bar Counsel sent another letter on July 25 by regular mail and email,
Mr. Kane responded and indicated he had been “out of the country” and “out of town . . . at a workers’ compensation conference. I am digging o ut obviously.” While Mr. Kane did not specifically ask for an exte nsion of time to respond, the hearing judge determined that such a request was imp lied from his email. Mr. Kane again correspon ded with Bar Counsel on August 7 , indicating he was close to completing his responses r elating to both the Lonergan and Arvin matters, but he had been traveling and was at that time out of town visiting elderly in

- laws. Having received no s ubstantive response, on August 8 , Bar Counsel requested that
Mr. Kane provide written responses withi n ten days. Mr. Kane responded to Bar Counsel’s request by stating that the investigation was “a ridiculous joke of a process.” Eight days later, he provided Bar Counsel with a partial substantive resp onse. A pproximately a month later when Bar Counsel a sked Mr. Kane to provide “a copy of the complete client file, including but not lim ited to your retainer agreement s, all correspondence, billing invoices and timekeeping records ” as well as “all financial records relevant to Mr. Arvin maintained pursuant to Maryland Rule 19

- 407(d)[,]” Mr. Kane did not respond.34

Mr. Kane excepts to the hearing judge’s findings in connection Bar Counsel’s investigation into Mr. Arvin’s complaint, arguing that “the record supports a finding that the [R]espondent’s family issue s (serious illness of his in

- laws) delayed his response to Bar Counsel’s inquiries and that the [R]espondent ultimately appropriately engaged with Bar Counsel.” We overrule Mr. Kane’s exception. The hearing judge’s findings with respect to Bar Counsel’s investigation are not clearly erroneous.
II. Standard of Review As noted above, in an attorney discipline matter, this Court reviews for clear error a hearing judge’s findings of fact, giving due regard to the hearing judge’s opportunity to assess
the credibility of the witnesses. Md. Rule 19

- 741(b)(2)(B). See also Attorney Grievance Comm’n v. Dyer , 453 Md. 585, 643, cert. denied , 138 S. Ct. 508 (2017). We review a hearing judge’s conclusions of law de novo without deference. Md. Rule 19

- 741(b)(1). This Court determines whether clear and convincing evidence establishes that a lawyer violated the
MLRPC. See Attorney Grievance Comm’n v. Ucheomumu , 462 Md. 280, 299 (2018); see also Md. Rule 19

- 727(c) (“Bar Counsel has the burden of proving averments o f the petition [for disciplinary or remedial action] by c lear and convincing evidence.”).

III. Hearing Judge’s Conclusions of Law From the findings of fact presented above , the hearing judge found by clear and convincing evidence that Mr. Kane violated M L RPC 1.1, 1.2, 1.3, 1.4, 1.7, 1.16, 3.1, 3.3, 3.4, 8.1, and 8.4. 13

13 Following trial, Bar Counsel withdrew the allegation that Mr. Kane violated Rule 1.15(e).35 Rules 1.1 (Competence ) and 1.3 (Diligence) Rule 1.1 requires that an attorney “provide competent representation to a client. Competent representation requires the legal knowledge, skill, thor oughness and preparation reasonably necessary for the representation.” Rule 1.3 requires that a lawyer must also “act with reasonable diligence and promptness in representing a client.” Conduct which violates Rule 1.1 will also often violate Rule 1.3. See Attorney Grievance Comm’n v. McCulloch , 404 Md. 388, 398 (2008) (finding violations of Rules 1.1 and 1 .3 where counsel “took a fee and then abandoned the litigation”) . The hearing judge found that Mr. Kane violated Rules 1.1 and 1.3 in his representat ion of Mr. Arvin and the Lonergans. We uphold these conclusions. Arvin Representation With respect to Mr. Arvin, the hearing judge determined that Mr. Kane’s advice to Mr. Arvin regarding his severance agreement violated Rule 1.1 because he lacked the

re quisite knowledge, thoroughness , and preparedness to advise Mr. Arvin with respect to his severance and a potential toxic tort claim against Lockheed. Specifically, the hearing judge found that a t the time that Mr. Kane advised Mr. Arvin to reject the set tlement offer, he had not reviewed Mr. Arvin’s medical records, nor had he conducted any research regarding the viability of Mr. Arvin’s claim or its potential value. Mr. Kane had not
consulted with any experts or considered the time and expense of tort l itigation. At trial, Mr. Kane admitted that he relied, at least in part, o n Ms. Sanbower, a lay person, in determining whether she and Mr. Arvin had a strong claim. The hearing judge found that Mr. Kane had n o reasonable basis t o advise Mr. Arvin that he would recover significantly36

more money if he pursued a toxic tort lawsuit than if he accepted Lockheed’s severance package. Mr. Kane later abandon ed the toxic tort claim because he could not establish the basis for the cause o f action. “Evidence of a fail ure to apply the requisite thoroughness and/or preparation in representing a client is sufficient alone to support a violation of Rule 1.1.” Attorney
Grievance Comm’n v. Garrett , 427 Md. 209, 222 (20 12) (quoting Attorney Grievance Comm’ n v. Guid

a , 391 Md. 33, 54 (2006)) . “An attorney may violate [Rule] 1.1, although he or she has the adequate knowledge or skill to represent a client, if the attorney fails to apply the thoroughness and/or preparation necessary for proper representation.” Attorney
Griev anc e Comm’n v. Hamilton , 444 Md. 163, 179 (2015) (citing Attorney Grievance Comm’n v. De La Paz , 418 Md. 534, 553 (2011) (citations omitted) )

. The hearing judge also found that Mr. Kane violated Rule 1.1 and 1.3 by failing to undertake any meaningful investig ation into Mr. Arvin’s toxic tort claim , and by failing to advise Mr. Arvin that he would not be filing a complaint on his behalf prior to the expiration of the statute of limitations. The hearing judge found that Mr. Kane violated Rule s 1.1 and 1.3 i n co nnection with the petitions for judicial review of the decisions of the WCC , by repeatedly failing to respond to discovery , and by failing to d esignate experts in a timely fashion, which resulted in the exclusion of witnesses at trial and the entry of summ ary judgment against his client. Mr. Kane excepts to the hearing judge’s finding s that he violated Rule 1.1 and 1.3 in connection with his representation of Mr. Arvin on the toxic tort claim. Specifically, he contends that at his initial meeting with Mr. Arvin and Ms. Sanbower, he made it clear that37

Mr. Arvin had a choice

— to accept the severance package and w aive the claim for a toxic

tort or to reject the severance (as Ms. Sanbower had done based upon her own independent research) and pursue the toxic tort. Mr. Kane asserts that he made it clear that the decision was Mr. Arvin’s choice, and that Mr. Kane made no guarantees of success. We overrule Mr. Kane’s exception. Mr. Kane’s exception is contradicted by his own testimony. At trial, Mr. Kane ad mitted that when he told Mr. Arvin that his toxic tort claim was worth more than his severance package, he had not conducted any research, had not reviewed Mr. Arvin’s medical records, and had not spoken with any experts regardin g Mr. Arvin’s potential cla im. As such, the hearing judge correctly found that Mr. Kane’s advice was “uninformed” and “had no legal or factual basis. ” Clear and convincing evidence supports the hearing judge’s conclus ion that Mr. Kane violated Rule 1.1. See Attorney Grievance Com m’n v. Zhang , 440 Md. 128, 1 58 (2014) (attorney violated
ML R P C 1.1 when she failed to conduct any legal research or to speak with her client before suggesting grounds for annulment).
Mr. Kane excepts to the hearing judge’s conclusion that he violated Rul e 1.3 because he contends that “there is no evidence that the delays in discovery in the c ircuit

c ourt caused the failure of the workers’ compensation claim. Those claims failed on their
merits

— not because of discovery issues.” We overrule Mr. Kane’s exc eption. First,

w hether Mr. Kane’s misconduct caused the failures in Mr. Arvin’s case is not dispositive when determining whether an attorney has violated the rules of professional conduct. See Attorney Grievance Comm’n v. Singh , ____ Md. _____ , Misc. Docket AG No. 6, Sept

. Term, 2018 , 2019 WL 3210320, *9 ( Md. July 17, 2019) (no ting that the phrase “no harm ,38

no foul” notion of harmless error in the sports context does not apply to the rules of professional conduct governing attorneys). Second, ev en if the “no harm, no foul” approach applied in this context, there is insufficient evidence in the record to support Mr. Kane’s claim that Mr. Arvin’s case failed on its merits

— summary judgment was granted against Mr. Arvin because of Mr. Kane’ s failure to respond to discovery and failure to identify experts in accordance with the court’s scheduling order. There is no evidence in the record upon which we could assess the strength of Mr. Arvin’s case. Lonergan Representation The hearing judge concluded t hat Mr. Kane violated Rule 1.1 and 1.3 when he failed to act with diligence and promptness in his representation of the Lonergans. Mr. Kane failed to act diligently when he failed to disclose any conflict of interest to the Lonergans arising out of the fa ct that he was a named defendant and failed to communicate with Mrs. Lonergan concerning the fact that sh e was a named defendant in the Adversary P roceeding. Specifically, the hearing judge concluded that Mr. Kane violated Rule 1.1 when he delayed in prep aring discovery responses , which ultimately resulted in sanctions being entered against the Lonergans. Clear and convincing evidence supports this conclusion, as it is undisputed that the Bankruptcy Court entered a monetary order of sanctions against the Lonergans, which they paid, arising from Mr. Kane’s failure to timely respond to discovery. 14

14 Although Mr. Kane filed an exception to the hearing judge’s conclusions of law that he violated Rule 1.1 (Competence), 1.2 (Scope of Representation ), and 1.3 (Diligence) in connection with his representation of the Lonergans, he admit s that his conduct violate d the Rules, stating that in the case of monetary sanctions, he “accepts responsibility and39

The hearing judge also concluded that Mr. Kane violated Rule 1.1 w hen he failed

t o identify the conflict of interest between himself, Mr. Lonergan, Mrs. Lonergan , and Matrix in the A dversary P roceeding. Clear and convincing evidence supports this conclusion. See Attorney Grievance Comm’n v. Framm , 449 Md. 620, 646 (2016) (concluding the attorney violated Rule 1.1 where she failed to recognize a conflict o f interest). Rule 1.2 ( Scope of Representation and Allocation of

Authority B etween Client and Attorney) Rule 1.2 provides in pertinent part that: . . . an attorney shall abide by a client’s decisions concerning the objectives of the representation and, when appropriate, shall consult with the client as to the means by which they are to be pursued. An attorney may take such action on behalf of the client as is impliedly authorized to carry out the representation

. . . . We have held repeatedly that “ [ w ] hen a lawyer fails to take any steps toward s the client’s objectiv e, the lawyer necessarily fails to abide by the client’s decision concerning that objective.” Attorney Grievance Comm’n v. Gage

- Cohen , 440 Md. 191, 198 (2014) (internal quotations omitted) (quoting Attorney Grievance Comm’n v. Garrett , 427 Md. 209, 223 (2012)). Additionally, an attorney violates Rule 1.2 when “he or she fails to inform a client of the status of his or her case, thereby denying the client the ability to make informed decisi ons.” Hamilton , 444 Md. at 182.

agrees that his failure to provide prompt discovery supports a violation of [these Rules] [].” Mr. Kane also admits that he should have recognized the potential conflict of interest arising from his dual role as attorney and a named defendant in an Adversary Proceeding with his clients. Because Mr. Kane admits that his conduct in connection with his representation of the Lonergans violate d these Rules, we overrule his exceptions.40 Arvin Representation With respect to Mr. Arvin, the hearing judge found that Mr. Kane violated Rule 1.2 in his representation by failing to take any meaningful steps toward investigating o r pursuing a toxic tort claim on Mr. Arvin’s behalf o r advising Mr. Arvin regarding the toxic

tort claim. 15 The hearing judge also determined that Mr. Kane failed to communicate his conclusion not to pursue the toxic tort claim or advise Mr. Arvin when the statute of limitations would run. As such, the hearing judge determined that Mr. Arvin was denied the ability to make informed decisions regarding the representation. Clear and convincing evidence supports the hearing j udge’s conclusions. Lonergan Representation In finding a violation of Rule 1.2, the hearing judge determined that t he Lonergans were denied the ability to make informed decisions regarding Mr. Kane’s representation
because Mr. Kane failed to identify the c onflict o f interest and withdraw as counsel in the
A dversary P roceeding. The hearing judge concluded that Mr. Kane violated Rule 1.2 when he represented M r s. Lonergan in the A dversary P roceeding without ever communicating with her about that matter. 16 Mr. Kane could not possibly know M r s. Lonergan’s objectives

15 Mr. Kane excepts to the hearing judge’s conclusion of law that he violated Rule 1.2, arguing that he put “both Mr. Arvin an d Ms. Sanbower in touch with potential experts.” The hearing judge found that “there is no credible evidence that [Mr. Kane] [] did any work on the ‘toxic tort complaint’ related to Mr. Arvin’s claim as opposed to Ms. Sanbower’s claim.” The hearing judge’ s conclusion that Mr. Kane failed to take meaningful steps toward investigating and pursuing Mr. Arvin’s toxic tort claim is supported by clear and convincing evidence, and we overrule Mr. Kane’s exception.

16 Again, while Mr. Kane notes an “exception” t o the judge’s conclusion of law, he “candidly admits that he could have handled the Lonergan representation in a better fashion”41

because she was unaware that she was a named party in the Adversary P roceeding, and
Mr. Kane never discussed the Adversary P roceeding (including without limitation the entry

o f a sanctions order) wit h her. See Attorne y Griev ance Comm ’ n v. Smith , 457 Md. 159,
215 (201 8) (“In order for a lawyer to abide by a client’s decisions concerning the objective s

o f the representation, the client must be able to make informed decisions as t o the objectives

o f the r epresentation

. ” (quoting Attorney Grievance Comm’n v. Shapiro , 441 Md. 367, 380 (2015) ) ) . Clear and convincing evidence supports the conclusion that Mr. Kane violated Rule 1.2 in his repres entation of the Lonergans. Rule 1.4 (Communication ) Rule 1.4 (Communication) provides, in pertinent in part: (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent . . . is required by these Rules; (2) keep the client reasonably informed about the status of the matter ; (3) promptly comply with reasonable requests for information; and (4) consult with the client about any relevant limitation on the attorney’s conduct when the attorney knows that the client expects assistance not permitted by the Maryland L awyers’ Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

and that “he should have communicated directly with Mrs. Lonergan and not have relied solely on Mr. Lonergan to inform his wife of the status of the case.” Given Mr. Kane’s admissions and based upon our review of the record, Mr. Kane’s exception is overruled.42

We have held that an attorney violates Rule 1.4 “when the attorney fails to communicate crucial information about the status of the case [to the client].” Hamilton , 444 Md. at 185 (citing De La Paz , 418 Md. at 554 ). Arvin Representation With respect to Mr. Arvin, the hearing judge concluded that Mr. Arvin was unaware that he could have pursued the workers’ compensation claim while also taking advantage of Lockheed’s severance offer. Mr. Arvin stated that he first learned of this fact at the mediation o f the workers’ compensation case, well after he r ejected the severance. Moreover, Mr. Kane failed to advise Mr. Arvin that he was not going to pursue the toxic tort claim o r when the statute of limitations would run on such a claim. Rather,
Mr. Kane simply abandoned the toxic tort claim without advising Mr. Arvin. The hearing judge’s conclusion that Mr. Kane’s communication , or lack thereof, between himself and Mr. Arvin demonstrates a violation of Rule 1 .4(a) and (b) is supported by clear and

c onvincing evidence. Mr. Kane has filed an exception to the judge’s conclusion that Mr. Kane violated Rule 1.4 in the course of his representation of Mr. Arvin. The basis for his exception is that there “was no lack of communication with Mr. Arvin about th e to xic tort litigation.”
B ased upon our independent review of the record, we overrule this exception. There is clear and convincing evidence in the record that Mr. Kane violated Rule 1.4(a) and (b) in connection with his lack of communication with Mr. Ar vin about the toxic tort matter.43 Lonergan Representation 17 With respect to Mr. Lonergan, the hearing judge found that Mr. Kane violated Rule 1.4(a)(2) and 1.4(b) when he failed to timely provide the client with information about the fees and expenses that had allegedly been incu rred during the first three years o f the litigation. The hearing judge also found that Mr. Kane failed t o adequately communicate with Mr. Lonergan regarding the issuance o f sanctions against him and his wife. These findings are supported by clear and convincing evidence. As for M r s. Lonergan, the hearing judge found that Mr. Kane violated Rule 1.4(a)(1)

– (4) and 1.4(b) w hen he failed to communicate directly with Mrs. Lonergan after the Adversary P roceeding w as filed. We agree. At that point, both Lonergans were named defendants in the action. Mr. Kane’s c ontinued reliance upon Mr. Lonergan t o communicate with Mrs. Lonergan violated Rule 1.4. He filed pleadings and motions and appeared in court o n Mrs. Lon ergan’s behalf without ever speaking with her about the adversary complaint. Mr. Kane never confirmed that he was authorized to represent M r s. Lonergan and act on her behalf. Moreover, Mr. Kane’s awareness o f the discord that this litigation was causing between the Lonergans, only heightened the need to communicate directly with both parties and confirm M r s. Lonergan’s position.

17 Mr. Kane once again notes an exception to the hearing judge’s conclusion of law that he violated Rule 1.4 in his repre sentation of the Lonergans. While he styles his pleading caption as an exception, no specific exception is pleaded. He admits that he could have communicated better with the Lonergans and “accepts responsibility for this lapse in representation.” To the extent that Mr. Kane’s pleading contains an exception to the legal conclusion of a violation of Rule 1.4 in connection with the Lonergans, it is overruled.44 Rule 1.7 ( Conflict o

f Interest) A conflict of interest generally disqualifies a lawyer from representing a particular client

. Rule 1.7 specifically states that a conflict of interest exists if “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third perso n or by a personal interest of the lawyer. ” Attorney Grievance Comm’n v. Powell , 461 Md. 189, 219 (2018) ( e mphasis original ). The hearing judge concluded that Mr. Kane violated MLRPC 1.7 in his representation of the Lonergans. It is undisputed that Mr. Kane was a named defendant along with Mr. Lonergan, M r s. Lonergan , and Matrix in the Adversary P roceeding filed by the Trustee. When Mr. Kane was joined as a defendant with the Lonergans, a conflict of
in terest arose between Mr. Kane and his clients. The hearing judge found that Mr. Kane would have the very real incentive to lessen his liability, which in turn could increase the
Lone r gans ’ obligation. Indeed, the very tension between Mr. Kane and his clients is evident from his explanation to the Bankruptcy Court when he was trying to explain his
failure to list the A dversary Proceeding in his personal bankruptcy. Mr. Kane stated: “I
believed and still do believe that the only financial exposure, if there is any in this case, i s it relates t o my former clients, not to me.” Mr. Kane simply ignored th e significant risk that his representation of the Lonergans would be materially limited by his personal interest

w hen he was named as a co

- defendant with his clients in the Adversary P roceeding involving conduct in which he was directly involved and that he had recommended.45

The hearing judge also concluded that a potential conflict arose betwee n Mr. and Mrs. Lonergan in the Adversary P roceeding. The hearing judge found that M r s. Lonergan was a passive party t o the transaction and could have cast blame and responsibility o n Mr. Lonergan (as well as Mr. Kane). Moreover, Mr. Kane was aware o f the discord between the Lonergans over the business. Instead of explaining the potential c onflict, or even advising Mrs. Lonergan that she had been sued, he continued to communicate solely with Mr. Lonergan. Lastly, there is no evidence in the record that the Lonergans gave their informed

c onsent to any of the conflicts o f interest in writing or otherwise. See Powell , 461 Md. at 219. The hearing judge’s conclusion that Mr. Kane violated Rule 1.7 in his representation of the Lonergans is supported by clear and convincing evidence

. 18

Rule 1.16 (

Declining or T

erminating Representation) Rule 1. 16 provides in pertinent part, that: (a) . . . a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: [] the representation will result in violation of the Maryland Lawyer ’ s Rules of Professional Conduct or other law;

* * * (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as

18 Yet again, in Mr. Kane’s written exceptions, he notes an exception to the hearing judge’s concl usion of law finding a violation of Rule 1.7 but states no basis for the exception and “candidly admits that he made a mistake” and that “[h]e should have rectified the problem earlier.” To the extent that Mr. Kane’s pleading contains an exception to the finding of a Rule 1.7 violation, it is overruled.46

giving reasonably notice to the client, allowing time for employment o f other counsel , surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned o r incurred

. . . .

Arvin Representation The hearing judge’s conclusion that Mr. K ane violated Rule 1.16 in his representation of Mr. Arvin is supported by clear and convincing evidence. As noted

supra , Mr. Kane failed t o take any meaningful steps towards pursuing a toxic tort claim against Lockheed o n Mr. Arvin’s behalf and failed to advise him that no action would be taken. We have held that an attorney violates Rule 1.16(d) “ [ w ] here a lawyer abandons a client without notic e through the failure t o take meaningful steps in pursuit of the client’s
interest

. . . . ” Attorney Grievance Comm ’n v. Costanzo , 432 Md. 233, 255 (2013 ) (citing Attorney Grievance Comm ’n v. Garrett , 427 Md. 209, 225 (2012 ) (internal quotations omitted ) )

. We agree with the hearing judge’s conclusion that Mr. Kane abandoned Mr. Arvin, without notice, as it relates to the toxic tort claim. 19 Once Mr. Kane determined that he

19 In Mr. Kane’s exception to the hearing judge’s conclusion that he violated Rule 1.16 in his representation of Mr. Arvin, Mr. Kane states that he “did not abandon Mr. Arvin

— he litigated the workers’ compe nsation claim twice in the Circuit Court and appealed the matter to the Court of Special Appeals.” We overrule Mr. Kane’s exception

. Mr. Kane’s “representation” of Mr. Arvin in the circuit court consisted of Mr. Kane voluntarily dismissing one matter, and in the other matter, having summary judgment entered against his client because of Mr. Kane’s discovery violations and his failure to designate experts. Putting aside Mr. Kane’s wholly inadequate representation of Mr. Arvin in the workers’ compensation cases, the hearing judge based his legal conclusion of a Rule 1.16 violation on the fact that Mr. Kane did not take any meaningful s teps to pursue the toxic tort claim and failed to advise Mr. Arvin that he would not be filing such a claim in advance of the expiration of the statute of limitations. Based upon our independent review47

would not pursue a toxic tort claim on Mr. Arvin’s behalf, he was obligated to take steps to the extent reasonably practicable to protect Mr. Arvin’ s interests. Mr. Kane failed to advise Mr. Arvi n that he would not be filing a toxic tort claim on his behalf until after the expiration of the applicable statute of limitations. Lonergan Representation The hearing judge’s conclusion that Mr. Kane violated Rule 1.16 when he
rep resent ed the Lonergan s in the Adversary P roceeding in violation of Rule 1.7, as described, supra , is also supported by clear and convincing evidence.

Rule 3.1 (

Meritor ious Claims and Contentions ) Rule 3.1 provides: A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes, for example, a good faith argument for an extension, modification or reversal of existing law. A lawyer may nevertheless so defend the proceeding as to require that every element o f the moving party’s case can be established. The hearing judge found that Mr. Kane violated Rule 3.1 in connection with his personal bankruptcy filings. Specifically, the hearing judge found that Mr. Kane’s serial bankruptcy filings were designed t o delay a foreclosure or frustrate the lender because Mr.
Kane could not obtain the loan modification that he desired. The hearing judge found that

e ach bankr uptcy filing was dismissed for failure t o prosecute, failure t o confirm a plan o r failure to cure deficiencies in the documents submitted. The hearing judge noted that the

of the record, there is clear and convincing evidence to support the hearing judge’s finding in that regard.48

evidenc e submitted , and Mr. Kane’s o wn testimony demonstrated that his bankruptcy
f ilings were strategic and not intended t o result in a successful Chapter 13 plan. Mr. Kane testified that there was an intent t o confirm a plan; however, something always came up. The hearing judge found that Mr. Kane’s own filings contradict ed his testimony. The hearing judge concluded that the filings were not made in good faith as they were designed

t o frustrate and delay the Respondent’s cr editors, primarily his mortgagee

. Mr. Kane filed an exception to this conclusion and contends that there i s no legal basis for the conclusion that his repeated filings were an abuse of the bankruptcy process. He contends that the filings “were a legitimate effort to force a recalcitrant creditor to the negotiating table.” The record clearly demonstrates th at Mr. Kane has serially filed six bankruptcy petitions on the eve o f foreclosure, all of which were dismissed by the Bankruptcy Court for failure to prosecute or failure to complete the required filings. The hearing judge, who had the opportunity to asse ss the credibility of the witnesses, rejected Mr. Kane’s testimony that he had a legitimate basis for filing each of his bankruptcy petitions . The hearing judge’s conclusion that Mr. Kane’s serial bankruptcy filings violate Rule 3.1 is supported by clear and convincing evidence , and we overrule Mr. Kane’s exception. Rule 3.3 (Candor to the Tribunal) In pertinent part, Rule 3.3(a) provid es that : “[a] lawyer shall not knowingly: (1)

m ake a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer[.]”49 Mr. Kane’s Personal Bankruptcy Petitions The hearing judge concluded that Mr. Kane violated Rule 3.3(a)(1) as it relates to his personal bankruptcy petitions. Specif ically, the hearing judge found that Mr. Kane made a false statement t o the Bankruptcy Court when he failed to disclose the Adversary
P roceeding

. The hearing judge noted that Mr. Kane acknowledged the intentional nature of this omis sion when he advised th e b ankruptcy judge in the Adversary Proceeding that he failed to list the Trustee’s claim in his personal bankruptcy petition for “privacy reasons” because he was trying to keep “all professional matters ” out of his personal bankruptcy.
Mr. Kane ex cepts to this conclusion claiming that he “believed

— albeit incorrectly

— that the [Bankruptcy] [] Trustee was making an inchoate claim that did not have to be disclosed.” Mr. Kane further contends that he “failed to disclose not for nefarious financing reasons but rather not to interfere with his clients’ case. ” Mr. Kane’s exceptions are overruled. The hearing judge’s finding that Mr. Kane intentionally failed to disclose the Adversary P roceeding in which he had been named as a defendant is supported by clear and convincing evidence. 20

20 As part of its Petition for Disciplinary or Remedial Action and at the attorney grievance hearing, Bar Counsel also requested a finding that Mr. Kane violated Rule 3.3 regarding his statement to t he Bankruptcy Court that he was representing the parties in the Lonergan matter on a pro bono basis. In failing to make this requested finding, the hearing judge described in detail the discussions between Mr. Lonergan and Mr. Kane concerning the agreed u pon flat fee arrangement for the legal services involved in the PNC/Matrix litigation, as well as payments made by Mr. Lonergan and his father for the services provided up until the bankruptcy. The hearing judge commented that in Mr. Kane’s mind, the flat fee arrangement “would fail to fully compensate him for the MBS work performed prior to the bankruptcy filing. Thus, he would not receive any compensation for the bankruptcy representation. Consequently, the Court cannot find by clear and convincing evi dence that the statement, when made by Mr. Kane, was intentionally false.” Bar50 Rule 3.4 (

Fairness to Opposing Party and Co unsel) Rule 3.4 provides, in part: A lawyer shall not: (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists; (d) in pretrial procedure, make a frivolous discovery request or fail to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party; Arvin Representation The hearing judge concluded that M r. Kane violated Rule 3.4(c) and (d) in his representation of Mr. Arvin. Specifically, the hearing judge found that Mr. Kane failed to timely respond t o Lockheed’s discovery requests in both circuit court proceedings in v iolation

o f the Maryland Rules and the circuit court’s scheduling orders. The hearing judge determined that Mr. Kane was aware of the deadlines imposed by the Rules and the scheduling order and nevertheless disobeyed said deadlines without justification in v iolation o f Rule 3.4( c ). See
Attorne y Griev ance Comm’n v. Mixter , 441 Md. 416 , 472 (2015) ( overruling an exception to a finding of knowing and intentional disobedience of court orders)

. The hearing judge also found that that Mr. Kane violated Rule 3.4(d) when he propounded untimely di scovery requests o n Lockheed (one day before the discovery deadline) in the second circuit court matter. In his conclusion of law, the hearing judge noted that Mr. Kane had testified that he “really didn’t need that discovery effectively

Counsel did not file an exception to the hearing judge’s finding. In accordance with Rule 19

- 741(b)(2), since no exceptions were filed, we will treat the hearing judge’s findi ngs of fact on this point as established.51

because I knew wh at the case was all about.” Despite this contention, Mr. Kane opted t o propound discovery, one day before the discovery deadline in the second circuit c ourt case, notwithstanding the fact that the same c ircuit court in the first workers’ compensation appe al had issued a protective order from Mr. Kane’s late filed discovery requests in that case

. The hearing judge held that the only conclusion he could draw from Mr. Kane’s identical behavior in the second request was that the untimely discovery was intended to annoy and/or burd en the opposing party. In his exceptions, Mr. Kane asks this Court to over tu rn the hearing judge’s
conclusion using the same excuse that he made during the attorney grievance hearing

— that he did not really need the discovery, that the discovery was not propounded to harass the opposing side, and that it was propounded to “simply put the company on record in the litigation.” 21 We agree with the hearing judge’s conclusion that Mr. Kane violated Rule 3.4(d) with his untimely discovery requests and overrule Mr. Kane’s exceptions. Regardless of Mr. Kane’s statement that he did not “i ntend to harass” opposing counsel, the act of serving discovery one day prior to the discovery deadline on opposing counsel, not once, but in two separate cases, has the effect of harassing the opposing party. Mr. Kane’s actions necessitated Lockheed’s mo tion for a protective order

— a filing that would have been unnecessary had Mr. Kane complied with the court’s scheduling order.

21 Mr. Kane’s excuse that he served untimely discovery simply to put Lockheed “on record” in the litigation is nonsensical. Mr. Kane had been litigating this matter with Lockheed in not one, but two successive work ers’ compensation cases. By the time Mr. Kane propounded his second untimely discovery requests, Lockheed was most certainly “on record” of the cases that Mr. Kane had filed on his client’s behalf.52 Lonergan R epresentation The hearing judge also found that Mr. Kane violated Rule 3.4(d) in connection with his representation of the Lonergans. As discussed supra , Mr. Kane’s failure to provide timely discovery responses to the Trustee resulted in a monetary sanctions award agai nst the Lonergans. The hearing judge commented that the record in this matter contains sever al instances of Mr. Kane’s disregard for the R ules or the scheduling orders governin g discovery in civil matters. We agree with the hearing judge and find clear a nd convincing evidence that Mr. Kane violated Rule 3.4(d). 22

Rule 8.1 (

Bar Admission and Disciplinary Matters ) In pertinent part, Rule 8.1 (b) provides that a lawyer in connection with a disciplinary matter shall not “ knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority [.] ” The hearing judge concluded that Mr. Kane violated Rule 8.1(b) as it related to Bar Counsel’s investigation into the both the Arvin complaint and the Lonergan complaint

. 23 Mr. Kane exc epts to this conclusion, contending

22 Once again, Mr. Kane notes an exception to the hearin g judge’s conclusion that he violated Rule 3.4 in connection with his representation of the Lonergans, but fails to provide any support for the exceptions, and “agrees that he was not as prompt as he should have been in responding to discovery in the Loner gan adversarial matter and that sanctions were imposed as a result.” To the extent that Mr. Kane’s written pleading alleges an exception to this particular conclusion of law, it is overruled.

23 In the Lonergan matter , Bar Counsel asserted that Mr. Kane v iolated Rule 8.1(a) when he submitted his October 19, 2016 , response to Bar Counsel , wherein he stated that he was representing MBS o n a pro bono basis. As discussed supra , the hearing judge did not find that Mr. Kane’s representation was an intentionally and knowingly false statement, and therefore did not find that such a representation to Bar Counsel violate d Rule 8.1(a). Bar Counsel did not file an exception to this finding.53

that “[R]espondent’s family issues (serious illness of his in

- laws) delayed his response to Bar Counsel’s inquiries and the [R]espondent ultimately appropriately engaged with Bar Counsel.” There is clear and convincing e vidence in the record that Mr. Kane v iolated Rule
8.1 (b) in connection with both investigations. 24 We overrule Mr. Kane’s exception. The re is clear and convincing evidence in the record that Mr. Kane f a iled to timely and completely respond to Bar Counsel’ s requests for information in both investigations. As noted supra , Mr. Kane had many excuses for failing to timely respond to Bar Counsel’s requests, including that he had been traveling in Ireland and that he had a packed calendar

. Moreover, Mr. Kane told Bar Counsel that Counsel’s investigation was “a ridiculous joke of a process”

— which is hardly an appropriate response. Rule 8.4 (

Misconduct

) Rule 8.4(a) states that it is professional misconduct for an attorney to “violate . . .

t he Maryland Lawyers’ Rules of Professional Conduct.” The hearing judge found that because Mr. Kane has violated multiple Rules, there is clear and convincing evidence that his conduct has violated Rule 8.4(a). Since we have concluded that Mr. Kane violat ed multiple Rules, we agree that he has violated Rule 8.4(a).

24 Bar Counsel also requested that the hearing judge find that Mr. Kane did not timely respond to its July 7, 2017 , and July 25, 2017 , correspondence in v iolation of 8.1(b). The hearing judge did not find a violation of Rule 8.1(b) arising out of Mr. Kane’s failure to respond to these communications, inste ad finding that Mr. Kane’s emails dated July 25, 2017 , and August 7, 2017 , in which he explains why he has not yet responded, could be construed as a request for a reasonable extension of time. Bar Counsel did not file an exception to this finding of fact , and we shall not consider it further.54

Rule 8.4(b) states 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 re spects[.]” The hearing judge made the following conclusion with respect to Mr. Kane’s personal bankruptcy and tax filing: The Respondent violated Rule 8.4(b) related to his personal bankruptcy and tax filings. 18 U.S.C. § 1001 makes it a crime to falsif y or conceal a material fact, or to make a false statement o r provide a false document to the government or a government agent. Brogan v. United States , 522 U.S. 398 (1998). 18 U.S.C. § 1621 prohibits perjury. Bronston v. United States , 409 U.S. 352 (19 73). The Court concludes that the Respondent’s conduct violated these criminal statutes w hen he knowingly and intentionally failed to disclose the adversary proceeding and list the Trustee as an unsecured creditor in his 2015 bankruptcy filing and submitt ed multiple bankruptcy petitions, signed under the penalties of perjury, that contained false information or intentionally concealed material facts. Att orne y Griev ance Comm’n v. Fraidin , 438 Md. 172 (2014) (attorney violated 8.4(b) when he aided his wife in preparing and filing fo rm s and schedules that contained misrepresentations in the United States Bankruptcy Court). The Court also concludes that the Respondent violated 26 U.S.C. § 7206 which prohibits the filing o f false tax returns when he filed a return which he knew contained deduction s for expenses unrelated to his law practice. The fact that the amount o f underpayment o f tax may be low is immaterial. “The purpose o f § 7206(1) is not simply to ensure that the taxpayer pay the proper amount of t axes

— though that is surely one of its goals. Rather, that section is intended to ensure also that the taxpayer not make misstatements that could hinder the Internal Revenue Service (“IRS”) in carrying out such functions as the verification o f the accuracy o f that return or a related tax return.” United States v. Greenberg , 735 F.2d 29, 31 (2 d Cir. 1984) (Finding a criminal v iolation were the underpayment o f taxes amounted to $48.00). The Court concludes, therefore, that the Respondent violated Rule 8.4(b ). (cleaned up). Typically, when this Court finds a violation of Rule 8.4(b), the respondent has been charged or convicted of a crime in a separate proceeding. In this case, Mr. Kane has not been charged or convicted of a crime. Rather , the hearing j udge concluded that55

Mr. Kane violated criminal statutes in connection with his personal bankruptcy filings when he failed to disclose the Adversary P roceeding or identify the Trustee as an unsecured creditor and when Mr. Kane submitted multiple bankruptcy petitions th at contained false and inconsistent information. The hearing judge further concluded that Mr. Kane violated 26 U.S.C. § 7206 , which prohibits the filing o f false ta x returns , when he filed tax returns which included deductions for cell pho ne and internet expenses, including family use, and were unrelated to his law practice. Mr. Kane has filed exceptions to the hearing judge’s conclusion of law that he violated Rule 8.4(b). Mr. Kane notes that he has not been charged with or convicted of a federal crime related to his tax returns or his personal bankruptcy filings. Mr. Kane asserts that there is no evidence in the record upon which the hearing judge could conclude that he committed a federal crime in connection with his bankruptcy filings and tax returns. Mr. Kane notes that federal crimes require an element of scienter and it must be proven that the defendant committed such crimes “knowingly and willfully.” “ Knowingly ” is defined as “ acting intentionally and voluntarily , and not because of ignorance, mistake, accident , or carelessness.” Leonard B. Sand , et al. , Modern Federal Jury Instructions , Criminal , No. 3A

- 1, 3A

- 3 (2018) . Similarly, “ willfully ” requires a person to “act with knowledge that one’s conduct is unlawful and with the intent to do something the law
forbids . . .

. [T] h e conduct was not ‘willful’ if it was due to negligence, inadvertence , or mistake

. ” Id. at 3A

- 20. To support his conclusion that Mr. Kane’s conduct in his personal bankruptcy constituted a criminal action in violation of Rule 8.4(b), the hearing judge cited to our56

decision in Attorney Grievance Comm issio n v. Fraidin , 438 Md. 172 (2014). In that case, we upheld the hearing judge’s finding that r espondent violated Rule 8.4(b) w hen he assisted his wife with the preparation of bank ruptcy documents which included false statements under oath th at she worked for the r espondent’ s law firm and received a monthly income from his law office of $3,000.00 per month, when in fact she was never employed by the law firm and never received any wages

. Id. at 207. As evidence of her wages, Mrs. Fraidin supplied fabrica ted “paychecks,” which were drawn from the r espondent’s IOLTA

account

. Id. at 180. In Fraidin , we upheld the hear ing judge’s conclusion that r espondent utilized his trust account funds to commit bankruptcy fraud by knowingly and intentionally fabri cating paychecks for his wife drawn from his IOLTA account for the sole purpose of misrepresenting to the bankruptcy court that his wife was gainfully employed so that his wife would qualify for a Chapter 13 reorganization. Id. at 203

– 06. In addition to Fraidin , Bar Counsel also urges us to rely upon Attorney Grievance
Commissio n v. Byrd , 408 Md. 449 (2009), where we upheld a finding that respondent violated Rule 8.4(b) and 8.4(c) with respect to his misconduct in connection with his bankruptcy matter. In Byrd , the respondent’s creditor had filed an involuntary bankruptcy action against the respondent, seeking to liq uidate assets to pay the creditor’s debt. Id. at 460. In that case, we found multiple instances of intentional, dishonest misconduct by respondent , including willful and intentional failure to cooperate with the bankruptcy trustee, and multiple contempt orders entered by th e bankruptcy judge over a seven

- year time span, as well as several orders to compel certain action, which were disregarded by respondent ,57

and two underlying determinations by the bankruptcy court that the respondent’s misconduct was “wi llful” and constituted “bad faith,” resulting in sanctions. Id. at 482. The hearing judge in that case found that respondent’s reports to the bankruptcy court were false, and that responden t knew they were false when he filed them. Id. at 464. In reachi ng this conclusion , the hearing judge relied upon the record of the bankruptcy proceedings, as well as the extensive testimony of the Trustee that as a Chapter 11 debtor, and later as a Chapter 13 debtor, respondent failed and refused to file monthly opera ting reports indicating the assets coming in and accounts receivable, and the cash flow and expenses of the business, and that respondent’s monthly operating reports were “grossly
inaccur ate, deceptive [] and misleading.” Id. at 481. Based upon the exten sive testimony of the Trustee, the hearing judge determined that respondent “ violated 18 U.S.C. § 1001 (making it a crime to falsify or conceal a material fact, or to make a false statement or provide a false document to the government or a government agency) and 18 U.S.C. § 1621 (prohibiting perjury). ” Id. Based upon the evidence, we found clear and convincing evidence to support the conclusion that the respondent violated Rule 8.4(b). Id. at 482. We also found that , based upon the multiple contemp t findings, respondent’s willful misconduct in flagrantly disobeying court orders and the rules of the bankruptcy court “manifestly involved dishonesty and was prejudicial to the administration of justice” in violation of Rule 8.4(c) and (d). Id. In this case, unlike Fraidin and Byrd, our independent review of the record leads us to conclude that while Mr. Kane was incompetent, uninformed, and negligent, his actions were not taken with an intent to defraud the Bankruptcy Court. Mr. Kane brought his58

person al bankruptcy to the Trustee’s attention at the lunch break on the first day of the Adversary Proceeding against him. The colloquy between Mr. Kane, the Trustee , and the bankruptcy judge demonstrates that while Mr. Kane’s failure to disclose the matter in his bankruptcy petition was uninformed and inconsistent with the requirements of the Bankruptcy Code, it was not undertaken with an intent to defraud the Bankruptcy Trustee or the Bankruptcy Court . Mr. Kane explained to the bankruptcy judge that he was t rying to keep his “professional matters” out of his bankruptcy for “personal privacy reasons.” He also testified that he did not think he needed to identify the A dversary P roceeding because he thought that only his clients had monetary risk and that the c laims against him were “inchoate claims.” Again, while Mr. Kane’s decision was without legal merit and demonstrates his lack of competence on bankruptcy

- related matters, we do not find , based upon this record , that Mr. Kane had the requisite intent to com mit a criminal act. Similarly, while the record reflects that Mr. Kane filed serial bankruptcies with schedules containing incorrect an d incomplete information, his conduct lacks a knowing or willful intent to engage in bankruptcy fraud. 25

25 Our finding that Mr. Kane’s bankruptcy filings fall short of criminal misconduct should not be construed as condoning this behavior. As noted supra , we have upheld the hearing judge’s conclusion that Mr. Kane’s inaccurate, serial filings violated Rule 3.3 (Candor Toward the Tribunal). To be sure, Mr . Kane’s bankruptcy schedules are replete with inaccurate information. For example, on Mr. Kane’s Feb ruary 2014 bankruptcy petition, on Schedule B, he stated that there was $100 in his Bank of America checking account when his bank records reflected a balance of $1,239.37 in the account. Mr. Kane testified that he was accounting for monies that he knew w ere already obligated elsewhere. The hearing judge noted that notwithstanding Mr. Kane’s explanation, the account always stayed above $100 for the relevant period. The hearing judge also correctly noted that Mr. Kane’s personal property values and person al expenses change d with each filing , and there are unexplained discrepancies in the schedules associated with his serial filings. For59

Although we fi nd that Mr. Kane should have disclosed the A dversary P ro ceeding and identified the T rustee as an unsecured creditor and should have been more diligent and accurate with his schedules, there is no evidence that his actions rise to the level of criminal conduct involved in Fraidin and Byrd. Although Mr. Ka ne’s filings reflect incompetence and negligence, we do not find by clear and convincing evide nce that his conduct constitutes a criminal act. Similarly, based upon our independent review of the record, we do not find by clear and convincing evidence that Mr. Kane’s act of deducting his internet and cell phone expense as business expenses , which include d family members’ coverage, constitutes a criminal act. While the Internal Revenue Service may take a different approach or reach a different conclusion, based upon the record before us, we sustain Mr. Kane’s exception
that his cell phone and internet deductions fall short of criminal activity. 26 Rule 8.4(c) provides that it is professional misconduct for a lawyer to “engage in conduct involving dishonestly, fraud, d eceit or misrepresentation[.]” The hear ing judge

example, the schedules on Mr. Kane’s June 2016 filing identified household goods and furnishings valued at $1,500, elect ronics valued at $600, and clothes valued at $250, and also identified office expenses and personal expenses, none of which had been identified on his 2014 or 2015 bankruptcy petitions. In comparing Mr. Kane’s serial bankruptcy filings, although Mr. Kane filed incomplete and inconsistent schedules, our review of the record reveals that these filings, while incompetent and careless, do not evidence an intent to defraud creditors or commit bankruptcy fraud.

26 At oral argument, Mr. Kane’s attorney argued t hat Mr. Kane uses Turbo Tax, which shows that he lacked a criminal intent. He plugs in his expenses and the software inserts the deduction. Obviously, Turbo Tax does not independently verify the expenses and the individual using the software must accurat ely enter expenses incurred and properly associated with a legitimate business deduction.60

concluded that the conduct that he found violated Rule 8.4(b) also constitutes a violation of Ru le 8.4(c). Mr. Kane has excepted to this conclu sion , asserting that the hearing judge’s legal conclusion of this violation was based solely upon the conclusion that Mr. Kane committed a fed eral criminal act. 27 Mr. Kane argues that he lack ed the requisite intent to engage in fraudulent or dishonest conduct. We will sustain Mr. Kane’s objection on this point. As noted above, with respect to Mr. Kane’s bankrup t cy filings, while the filings were careless and reflect a lack of competence, we do not find by clear a nd convincing evidence that Mr. Kane’s mistakes and inconsistencies were intentionally dishonest conduct or were undertaken for the purpose of defrauding or deceiving the Bankruptcy
Court. With respect to his tax deductions , Mr. Kane asserts that he is a sole practitioner who operates from a virtual office. Mr. Kane took a deduction on his tax return for his cell phone usage , which also included cell phone service of family members. At oral argument, Mr. Kane’s counsel stated that there is nothing in th e record upon which the hearing judge could find that taking a c ell phone business deduction for his family’s coverage constitutes tax fraud, or that the IRS would consider the deduction unacceptable in an audit. Based upon the record before us, we do not find clear and convincing evidence that Mr. Kane’s

27 In his conclusions of law, the hearing judge did not describe his basis for concluding that Mr. Kane violated Rule 8.4(c) other than simply stating that “each of t he listed violations of Rule 8.4(b) also constitutes a violation of Rule 8.4(c).”61

cell phone deduction on his tax returns constitutes intentionally dishonest or fraudulent conduct in violation of Rule 8.4(c). Rule 8.4(d) provides that it is professional misconduct for a lawyer to “ en gage in conduct that is prejudicial to the administration of justice[.]” The hearing judge concluded that Mr. Kane violated Rule 8.4(d) when he failed to disclose the A dversary P roceeding and list the Trustee as an unsecured creditor in his 2015 bankruptc y filing becau se it wasted judicial resources, and was therefore prejudicial to the administration of justice. The hearing judge also concluded that Mr. Kane’s conduct resulted in the Ba nkruptcy Court wasting a half day of its valuable trial time to condu ct a trial in a stayed proceeding. Moreover, Mr. Kane’s conduct unnecessarily caused a delay in the Adversary P roceeding , which could have been avoided by listing the claim in his 2015 bankruptcy petition and schedules as is required by the Bankruptcy Code. Mr. Kane filed an exception to this conclusion but did not specify any basis for his exceptio n. We overrule the excep tion.
Mr. Kane’s failure to identify the A dversary P roceeding on his personal bankruptcy certainly caused a waste of judicial resources and delay, which could have been avoided. The hearing judge further concluded that Mr. Kane’s ove rall conduct brings the legal profession into disrepute in violation of Rule 8.4(d). We find that the conclusion is supported by clear and convincing evidence and affirm the hearing judge’s conclusion.

Md. Rule 19
- 407 (

Attorney Trust Account Record Keeping ) At the attorney grievance hearing, Bar Counsel contended that Mr. Kane violated Md. Rule 19

- 407 as it relates to his representation of Mr. Arvin. Specifically, Bar Counsel argued that Mr. Kane violated the Rule because he either failed to create the record as62

required by the Rule or failed to maintain records for the requisite period of time. Although the hearing judge concluded that Mr. Kane failed t o produce the records at trial, the hearing judge was not convinced by clear and convincing evidence that the reason for the failure to produce the documents (its own separate v iolation o f the Rules) was because Mr. Kane has either failed to create or maintain the records, as opposed to his failure to retrieve them. The hearing judge noted that Mr. Kane testified to difficu lty with his computers. Bar Counsel did not file an exception to this conclusion. Although Mr. Kane filed an exception, stating that , while he could have done a better job of managing his law office and personal finances, there was no evidence to support a conclusion that he willfully mismanaged his bookkeeping. However, since no such legal conclusion was reached by the hearing judge and no violation was found, we overrule Mr. Kane’s exception. Mitigating Factors
In Att orney Grievance Commission v. Hodes, we noted that the following may be considered as mitigating factors: Absence of a prior disciplinary record; absence of a dishonest or selfish motive; personal or emotional problems; timely good faith efforts to make restitution or to rectify c onsequences of misconduct; full and free disclosure to disciplinary board or cooperative attitude toward proceedings; inexperience in the practice of law; character or reputation; physical or mental disability or impairment; delay in disciplinary proceedin gs; interim rehabilitation; imposition of other penalties or sanctions; remorse; and finally, remoteness of prior offenses. 441 Md. 136, 209 (201 4 ) (citing Attorney Grievance Comm’n v. Coppola , 419 Md. 370, 407 (2011) (citations omitted) )

.63

The hearing judge found that Mr. Kane proved one mitigating factor by a preponderance of the evidence. Mr. Kane testified that during the time period of this case, he has had personal problems with caring for his ailing in

- laws with whom he was very close. Their fai ling health and ultimate deaths greatly affected Mr. Kane emotionally and required significant amounts of his time and energy for their care. The Court found Mr. Kane credible on this point. No exceptions were filed by Ba r Counsel to this finding. Based upon our independent review of the record, we agree with the hearing judge’s finding. Aggravating Factors The hearing judge found clear and convincing evidence that five aggravating factors were present: (1) prior discipline; (2) a pattern of misconduct ; (3) multiple offenses; (4) refusal to acknowledge the wrongful nature of conduct; and (5) substantial experience in the practice of law. 28 We agree with the hearing judge’s conclusions, which are
summarized as follows.

28 We have recognized the following aggravating factors in considering sanctions in attorney grievance proceedings: (1) Prior disciplinary offenses; (2) A dishonest or shellfish mo tive; (3) A pattern of misconduct; (4) Multiple offenses; (5) Bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency; (6) Submission of false evidence, false statements, or other deceptive p ractices during the disciplinary process; (7) Refusal to acknowledge the wrongful nature of conduct; (8) Vulnerability of the victim; (9) Substantial experience in the practice of law;64

T he hearing judge noted that Mr. Kane received a reprimand from the Attorney Grievance Commission on January 18, 2017 , for violating Rules 1.1 ( Competence), 1.3 (D iligence), 1.4 ( Communication), 1.16(d) (T erminating representation), and 3.4(d) (F airness to opposing counsel). The hearing judge noted that in that matter, Mr. Kane failed to provide competent and diligent representation, and failed to adequately communicate with his clien t. Specifically, Mr. Kane failed to adhere to discovery guidelines, comply with opposing counsel’s discov ery requests, and communicate with his client regarding the scope and ramifications of his actions. Bar Counsel also requested that the hearing judge consider a warning from the Attorney Grievance Commission dated August 30, 2016 , for alleged viol ations of Rules 1.3 (D il igence) and 1.4 (C ommunication). The hearing judge concluded that it would not
consider the warning as part of an aggravating factor because the warning explicitly provided “[a] warning is not discipline u nder Maryland Rule 19

- 700 [.]” Bar C ounsel excepted to the hearing judge’s failure to find Mr. Kane’s prior warning to be an aggravating factor under the circumstances. W e agree with Bar Counsel and sustain Counsel’s exception. Although the warning is not discipline, as set forth below, it evidences a pattern of misconduct.

(10) Whether he or she displayed indifference to making restitution; and (11) [I]llegal conduct. See Attorney Grievance Comm’n v. Sperling , 434 Md. 658, 676

– 77 (2013) (citing Standard 9.22 of the American Bar Association Standards for Imposing Lawyer Sanctions).65

The warning that Bar Counsel issued on August 30, 2016 , stated that although the complaint made against Mr. Kane had been dismissed: We did determine, ho w e ver, that you violated Maryland Lawyers’ Rules of Professional Conduct 1.3 and 1.4. You violated Rule 1.3 by failing to act with reasonable diligence and promptness in pursuing the return of your client’s $20,000 deposit made toward the purchase of a home . You violated 1.4 by failing to keep your client reasonably informed of the status of her case and failing to explain the case to the extent reasonably necessary to permit her to make informed decisions regarding your representation. We are issuing a wa rning to you for those violations. A warning is not discipline

. . . but should guide you in the future to avoid a complaint of a similar nature that might result in a disciplinary sanction. This Court has recognized that a warning is “an admonition a gainst repetition of conduct.” Attorney Grievance Comm’n v. Stolarz , 379 Md. 387, 406 (2004). We agree with Bar Counsel that the conduct described in the warning is similar to the conduct at issue in the Lonergan and Arvin matters. While the warning was not a disciplinary action, it is nonetheless evidence of a pattern of misconduct, which is an aggravating factor in determining the appropriate sanction. See Attorney Grievance Comm’n v. Kirwan , 450 Md. 447, 463

– 64 (2016) (agreeing with hearing judge’s c onclusion that the attorney’s prior warning supported a finding that the attorney had engaged in a pattern of misconduct); Attorney Grievance Comm’n v. Hill , 398 Md. 95 , 104

– 05 (2007) (considering the attorney’s two prior warnings as “prior grievance histo ry” in determining the appropriate sanction to impose); Attorney Grievance Comm’n v. Reinhardt , 391 Md. 209, 230 (2006) (considering a warning to be “prior history ” with the Commission). Accordingly, there is clear and convincing evidence that the warning issued to Mr. Kane should be considered by the Court as a pattern of misconduct.66

In addition to the prior disciplinary action, the hearing judge concluded that Bar Counsel had established, by clear and convincing evidence, a pattern of misconduct and

mu ltiple offenses. The hearing judge noted the multiple rules violat ed in connection with Mr. Kane’s representation of the Lonergans and Mr. Arvin, as well as the violations found in connection with Mr. Kane’s personal bankruptcy and tax filings. The hearing judge found that at the Decem

ber 2018 hearing, Mr. Kane failed to acknowledge the wrongful nature of his conduct, instead maintaining that there was no conflict of interest and that the clients should have contacted him if they were uninformed abo ut their cases. The hearing judge further noted that Mr. Kane has substantial experience in the practice of law, having been admitted in 1983.
IV. Sanction The purpose of a sanction in an attorney discipline case is not so much to punish the attorney a s “to protect the public and the public’s confidence in the legal profession.” Attorney Grievance Comm’n v. Greenleaf , 438 Md. 151, 163 (2014) (quoting Attorney Grievance Comm’n v. Worthy , 436 Md. 633, 643 (2014))

. T he sanction imposed depends on the fac ts and circumstances of each case, and in arriving at an appropriate sanction, we “consider the nature of the ethical duties violated in light of any aggravating or mitigating circumstances.” Attorney Grievance Comm’n v. Paul , 423 Md. 268, 284 (20 11).
Ac cordingly, the sanction imposed should be “commensurate with the nature and gravity of the violations and the intent with which they were committed.” Attorney Grievance Comm’n v. Stein , 373 Md. 531, 537 (2003).67

Bar C ounsel has recommended that we disbar Mr. Kane from the practice of law. In support of this recommendation, Bar Counsel notes that Mr. Kane violated numerous Rules in his representation of the Lonergans and Mr. Arvin, as well as Bar Counsel’s associated investigation into those complaints, t o wit: Rules 1.1 ( C ompetence), 1.2 ( S cope of R epresentation and A llocation of A uthority B etween C lient and L awyer), 1.3 ( D iligence), 1.4 ( C ommunication), 1.7 ( C onf lict of I nteres t; G eneral R ule) (as to the
Lon ergans), 1.16 ( D eclining or T er minating R epresentation), 3.4 (F airness to O pposing
P arty and A ttorney), 8. 1(b) ( B ar A dmission and D isciplinary M atters), and 8.4(a) and (d) ( M isconduct) . Bar Counsel also notes Mr. Kane’s violation of Rule 3.3 (Candor T oward the T ribunal) and 8.4(a) and (d) ( M isco nduct) in connection with his personal bankruptcy. Bar Counsel contends that in addition to Mr. Kane’s misconduct, there are substantial aggravating factors, including prior misconduct, Mr. Kane’s substantial experience in the practice of law, and his ref usal to acknowledge the wrongful nature of his conduct. To support their recommended sanction of disbarment, Bar Counsel rel ies upon the hearing judge’s findings that Mr. Kane violated Rule 8.4(b) and 8.4(c) in connection with his bankruptcy filings and t ax deduction for cell phone expenses. Bar Counsel relies upon Fraidin , 438 Md. 171, and Byrd , 408 Md. 449. As noted supra , we sustained Mr. Kane’s exception to the hearing judge’s conclusion that Mr. Kane’s conduct in his personal bankruptcy and his tax filings violated Rule 8.4(b) and (c ). At oral argument, in response to the Court’s questions, Bar Counsel admitted that if the Court were only to consider the
misconduct in the Lonergan and Arvin cases, Bar Counsel would recommend an indefinite
suspe nsion. Bar Counsel stated that the “recommendation for disbarment is based on the68

conduct in the Lonergan and Arvin matters, compiled with the Respondent’s personal bankruptcy filings and tax returns.”
Mr. Kane contends that the facts of this case do not support disbarment as Mr. Kane’s conduct in his bankruptcy and tax filings were neither criminal, nor intentionally dishonest. Mr. Kane notes that cases where we have determined that the respondents have tax problems , but do not involve willful and inte n tional tax fraud , have not resulted in disbarment. Mr. Kane relies upon Attorney Grievance Comm’ n v. Gavin , 350 Md. 176 (1998), in which the Court imposed a reprimand where the respondent failed to timely file his tax returns and failed to rectify his tax delinquencies. Mr. Kane also directs us to Attorney Grievance Comm’n v. Worthy , 436 Md. 633 (2014), where the Court imposed a six

- month suspension for two separate convictions of failure to file tax returns amounting to over $70,000 in unpaid
taxes. Mr. Kane asserts that he did not willfully evade pay ing taxes

— rather, he took some minor deductions that might arguably seem questionable. Mr. Kane asserts that this conduct was not criminal and does not support disbarment. Mr. Kane further asserts that ther e is insufficient evidence to conclude that he knowingly and willfully committed fraud when he filled out his bankruptcy schedules and filed his income taxes. He states that there is no violation of Rule 8.4(b) or (c), although he admits that the evidence supports a finding that he acted out of ignorance, mistake, carelessness , or negligence. With respect to the findings associated with his representation of the Lonergans and Mr. Arvin, Mr. Kane argues that the case law support s either a reprimand or a “short suspension.” Mr. Kane contends the facts of this case are more similar to Attorney
Grievance Commissio n v. Cohen , 361 Md. 161 (2000), where we imposed an indefinite69

suspension after finding violations of Rules 1.1, 1.3, 1.4 , 8.1(a) , and 8.4(c) and (d) for failing to keep clients informed regarding their cases, lack of competence, and making false statements during a disciplinary investigation. In light of our sustain ing Mr. Kane’s exceptions to the Rule 8.4(b) and (c)

conc lusions of law, we agree that the violations in this matter support the imposition of an indefinite suspension. Our decisions in prior attorney discipline cases support suspending Mr. Kane indefinitely, with the right to apply for reinstatement. In cases similar to Mr. Kane’s where the attorney’s disciplinary actions do not involve dishonesty, the sanction has often been indefinite suspension. See Attorney Grievance Comm’ n v. Kirwan , 450 Md. 447, 466 (2016); see also Attorney Grievance Comm’n v. Green , 4 41 Md. 80, 101

– 102 (2014) (collecting cases). Indefinite suspension ensures that Mr. Kane is not permitted to practice law until this Court is satisfied that he is able to do so consistent with the ML R P C. We have reiterated that indefinite suspension is not permanent, so Mr. Kane may apply for reinstatement under Maryland Rule 19

- 752. However, we decline to set a minimum length for this suspension because there is nothing in the record that would allow this Court to “divine an appropriate minimum ‘sit

- ou t’ period.” Kirwan , 450 Md. at 467, quoting Green , 441 Md. at 102. We would also note that while we did not find a Rule 8.4(b) or (c) violation with respect to Mr. Kane’s bankruptcy filings and tax filings, any future filings by
Mr. Kane would be conside red by the Court as part of any consideration on reinstatement. The suspension shall begin 30 days after the date on which this opinion is filed. IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT,70 INCLUDING COSTS OF ALL T RANSCRIPTS, PURSUANT TO MARYLAND RULE 19
- 709(d) FOR WHICH SUM JUDGMENT IS E NTERED IN FAVOR OF THE ATTO RNEY GRIEVANCE COMMISSION AGAINST EUGENE IGNATIUS KANE, JR.