BELL, Chief Judge.
The Attorney Grievance Commission of Maryland, the petitioner, by Bar Counsel, acting pursuant to Maryland Rule 16-751,
filed a Petition For Disciplinary or Remedial Action against John A. Elmendorf, the respondent. The petition charged that the respondent violated Rules 1.2, Scope of Representation,
Rule 4.1, Truthfulness in Statements to Others,
and 8.4, Misconduct,
of the Maryland Rules of Professional Conduct, as adopted by Maryland Rule 16-812.
We referred the ease, pursuant to Rule 16-752(a),
to the Honorable S. Michael Pincus, of the Circuit Court for Montgomery County, for hearing and to make findings of fact and draw conclusions of law. The respondent filed an answer to the Petition and both parties appeared at and presented testimony, documentary evidence and argument at the hearing held on the Petition. Following the hearing, the hearing court, pursuant to Rule 16-757(c),
found facts by the clear and convincing standard and drew conclusions of law, as follows:
“Findings of Fact and Conclusions of Law
“1.)
Suggesting to a Person That it is Acceptable to Misrepresent Information to the Court
“a.)
Findings of Fact
“In July 2003, Respondent became acquainted with a woman named Laura McCarthy through an internet dating site. Respondent’s communications and interactions with Ms. McCarthy were principally of a social nature. On the afternoon of
July 28, 2003, Ms. McCarthy and the Respondent exchanged a series of electronic mail messages in which Ms. McCarthy sought information about grounds for divorce. Specifically, Ms. McCarthy inquired as to whether there was any way to get around the requirement that the parties be separated one year in order to obtain a no-fault divorce. Respondent sent a brief, off-the-cuff response via e-mail, to wit:
“You can file whatever you want so long as the parties say that it has been a year, the court won’t question it so long as the parties agree to that.”
Although this statement does not expressly state that it is acceptable to lie to the Court in order to obtain certain relief, Ms. McCarthy could have reasonably construed it to suggest that the parties could agree to present false testimony to obtain a divorce earlier than permitted by law.
“Respondent had dinner with Ms. McCarthy two days later. At dinner, Ms. McCarthy told Respondent that she did not recall seeing his e-mail. She clarified that she was looking to find out whether she would have to be separated for a year if she alleged abuse by her husband. There is no indication that Ms. McCarthy did not seek any further information or direction from the Respondent on this subject. Ms. McCarthy never retained the Respondent to represent her and there is no evidence that she ever intended to do so.
“b.)
Conclusions of Law
“The Commission contends that by engaging in this behavior, Respondent violated sections 1.2(d) and 8.4(d) of the Maryland Rules of Professional Conduct.... This Court concludes that although Ms. McCarthy knew that the Respondent was an attorney, and although the subject matter of the conversation concerned legal issues, the overall nature of their relationship and the content of the communication in question were such that no attorney-client relationship was established. Consequently, Respondent can not be, and is not, in violation of Rule 1.2(d). However, this Court reaches a different result by applying Rule 8.4(d) to Respondent’s conduct----As stat
ed above, this Court is of the opinion that Respondent’s e-mail of July 28, 2003 was such that it could have given Ms. McCarthy the impression that intentionally misrepresenting information to the Court is acceptable so long as all parties involved set forth the same information. Because the administration of justice is premised on the notion that the parties and witnesses should tell the truth to the Court, the Court finds by clear and convincing evidence that Respondent’s actions in this matter are prejudicial to the administration of justice. Accordingly, this Court finds that Respondent stands in violation of Rule 8.4(d) on this issue.
“2.) Miscommunications About Whether a Lien was Recorded
“Respondent represented Huntley Square Condominium Association in various matters including the collection of delinquent accounts. Respondent was required to collect fees owed to the Condominium by Amelia C. Dodson, who owned a residential unit therein. As a result, on November 1, 2003, Respondent prepared and sent to Ms. Dodson a ‘Notice of Intention to File Lien.’ This Notice informed Ms. Dodson of her current indebtedness and further informed her that, if she did not pay the debt within 30 days, a lien may be recorded against the property. Ms. Dodson subsequently signed a Confessed Judgment Promissory Note, agreeing to make payments on the debt from January 2004 to June 2004. In December 2003, Respondent prepared a Statement of Lien, but did
not
record this lien. No further action was taken on this case between December 2003 and April 2004. Further, and of significant importance, Ms. Dodson allegedly did not make her promised payments during this period.
“Respondent, on April 12, 2004, issued a standard ‘Final Notice of Foreclosure’ to Ms. Dodson. Among other things, this letter mistakenly stated that a lien had been recorded against the property and that foreclosure would be the next step, in the event the debt was not paid by Dodson within 30 days. Although Respondent could have seen from a review of
the file that the lien had not actually been recorded, Respondent was operating under the mistaken assumption that the subject lien had in fact been recorded by his paralegal back in December, 2003.
“On May 12, 2004, Respondent had a conversation with the law offices of James Almand, Esquire. Mr. Almand was now representing Ms. Dodson in connection with her divorce. During this exchange, Respondent realized that the lien in question had in fact
not
been recorded, and Respondent subsequently informed Mr. Almand that he would ‘immediately’ remedy this error by filing the lien. Unfortunately, the lien could not be filed immediately because the Huntley Square Condominium Association, Respondent’s client, had not deposited the requisite funds needed for this transaction into the escrow account. Despite the fact that Respondent had told Mr. Almand that he would ‘immediately’ file the lien, Respondent failed to promptly notify Mr. Almand that, in fact, the lien still could not be recorded. However, Respondent and Mr. Almand began another series of communications beginning on or about May 18, 2004, in which the two attorneys agreed to suspend any collection activities regarding Ms.
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BELL, Chief Judge.
The Attorney Grievance Commission of Maryland, the petitioner, by Bar Counsel, acting pursuant to Maryland Rule 16-751,
filed a Petition For Disciplinary or Remedial Action against John A. Elmendorf, the respondent. The petition charged that the respondent violated Rules 1.2, Scope of Representation,
Rule 4.1, Truthfulness in Statements to Others,
and 8.4, Misconduct,
of the Maryland Rules of Professional Conduct, as adopted by Maryland Rule 16-812.
We referred the ease, pursuant to Rule 16-752(a),
to the Honorable S. Michael Pincus, of the Circuit Court for Montgomery County, for hearing and to make findings of fact and draw conclusions of law. The respondent filed an answer to the Petition and both parties appeared at and presented testimony, documentary evidence and argument at the hearing held on the Petition. Following the hearing, the hearing court, pursuant to Rule 16-757(c),
found facts by the clear and convincing standard and drew conclusions of law, as follows:
“Findings of Fact and Conclusions of Law
“1.)
Suggesting to a Person That it is Acceptable to Misrepresent Information to the Court
“a.)
Findings of Fact
“In July 2003, Respondent became acquainted with a woman named Laura McCarthy through an internet dating site. Respondent’s communications and interactions with Ms. McCarthy were principally of a social nature. On the afternoon of
July 28, 2003, Ms. McCarthy and the Respondent exchanged a series of electronic mail messages in which Ms. McCarthy sought information about grounds for divorce. Specifically, Ms. McCarthy inquired as to whether there was any way to get around the requirement that the parties be separated one year in order to obtain a no-fault divorce. Respondent sent a brief, off-the-cuff response via e-mail, to wit:
“You can file whatever you want so long as the parties say that it has been a year, the court won’t question it so long as the parties agree to that.”
Although this statement does not expressly state that it is acceptable to lie to the Court in order to obtain certain relief, Ms. McCarthy could have reasonably construed it to suggest that the parties could agree to present false testimony to obtain a divorce earlier than permitted by law.
“Respondent had dinner with Ms. McCarthy two days later. At dinner, Ms. McCarthy told Respondent that she did not recall seeing his e-mail. She clarified that she was looking to find out whether she would have to be separated for a year if she alleged abuse by her husband. There is no indication that Ms. McCarthy did not seek any further information or direction from the Respondent on this subject. Ms. McCarthy never retained the Respondent to represent her and there is no evidence that she ever intended to do so.
“b.)
Conclusions of Law
“The Commission contends that by engaging in this behavior, Respondent violated sections 1.2(d) and 8.4(d) of the Maryland Rules of Professional Conduct.... This Court concludes that although Ms. McCarthy knew that the Respondent was an attorney, and although the subject matter of the conversation concerned legal issues, the overall nature of their relationship and the content of the communication in question were such that no attorney-client relationship was established. Consequently, Respondent can not be, and is not, in violation of Rule 1.2(d). However, this Court reaches a different result by applying Rule 8.4(d) to Respondent’s conduct----As stat
ed above, this Court is of the opinion that Respondent’s e-mail of July 28, 2003 was such that it could have given Ms. McCarthy the impression that intentionally misrepresenting information to the Court is acceptable so long as all parties involved set forth the same information. Because the administration of justice is premised on the notion that the parties and witnesses should tell the truth to the Court, the Court finds by clear and convincing evidence that Respondent’s actions in this matter are prejudicial to the administration of justice. Accordingly, this Court finds that Respondent stands in violation of Rule 8.4(d) on this issue.
“2.) Miscommunications About Whether a Lien was Recorded
“Respondent represented Huntley Square Condominium Association in various matters including the collection of delinquent accounts. Respondent was required to collect fees owed to the Condominium by Amelia C. Dodson, who owned a residential unit therein. As a result, on November 1, 2003, Respondent prepared and sent to Ms. Dodson a ‘Notice of Intention to File Lien.’ This Notice informed Ms. Dodson of her current indebtedness and further informed her that, if she did not pay the debt within 30 days, a lien may be recorded against the property. Ms. Dodson subsequently signed a Confessed Judgment Promissory Note, agreeing to make payments on the debt from January 2004 to June 2004. In December 2003, Respondent prepared a Statement of Lien, but did
not
record this lien. No further action was taken on this case between December 2003 and April 2004. Further, and of significant importance, Ms. Dodson allegedly did not make her promised payments during this period.
“Respondent, on April 12, 2004, issued a standard ‘Final Notice of Foreclosure’ to Ms. Dodson. Among other things, this letter mistakenly stated that a lien had been recorded against the property and that foreclosure would be the next step, in the event the debt was not paid by Dodson within 30 days. Although Respondent could have seen from a review of
the file that the lien had not actually been recorded, Respondent was operating under the mistaken assumption that the subject lien had in fact been recorded by his paralegal back in December, 2003.
“On May 12, 2004, Respondent had a conversation with the law offices of James Almand, Esquire. Mr. Almand was now representing Ms. Dodson in connection with her divorce. During this exchange, Respondent realized that the lien in question had in fact
not
been recorded, and Respondent subsequently informed Mr. Almand that he would ‘immediately’ remedy this error by filing the lien. Unfortunately, the lien could not be filed immediately because the Huntley Square Condominium Association, Respondent’s client, had not deposited the requisite funds needed for this transaction into the escrow account. Despite the fact that Respondent had told Mr. Almand that he would ‘immediately’ file the lien, Respondent failed to promptly notify Mr. Almand that, in fact, the lien still could not be recorded. However, Respondent and Mr. Almand began another series of communications beginning on or about May 18, 2004, in which the two attorneys agreed to suspend any collection activities regarding Ms. Dodson (so that she could pay off the debt as soon as her divorce case provided sufficient funds.) ...
“The Commission contends that by engaging in the above behavior, Respondent violated Sections 4.1(a) and 8.4(c) of the Maryland Rules of Professional Conduct.... In this case, the Court does not find by clear and convincing evidence that Respondent violated Rule 4.1(a). The evidence presented at trial shows that [Respondent was negligent in not reviewing the file in the Dodson matter on April 12, 2004, when he issued the ‘Final Notice of Foreclosure’ letter under the mistaken assumption that a lien had already been filed in the matter. On May 12, 2004, Respondent became aware of the error, and promptly notified opposing counsel’s office of the fact that the lien had not yet been filed, but that it would be filed to protect the interests of Respondent’s client.
“Based on the lack of intent evidenced by Respondent’s mistaken belief that the lien had been recorded, Respondent’s efforts in May, 2004 to inform opposing counsel of the error, and the subsequent communications whereby Respondent agreed to suspend collection activities against Ms. Dodson, the Court cannot find that Respondent ‘knowingly made a false statement of material fact to a third person.’ Accordingly, Respondent did not violate Rule 4.1(a).
“Additionally, this Court does not find by clear and convincing evidence that the Respondent violated Rule 8.4(c) by his behavior during this incident. For the reasons stated above, Respondent may have been negligent in his failure to properly review the file before sending out the April 12, 2004 letter, but his actions in April and May 2004 do not rise to the level of ‘conduct involving fraud, deceit, or misrepresentation.’ ”
Taking no exceptions to the hearing court’s findings of fact and conclusions of law, the petitioner recommends, as a sanction, that the respondent be suspended from the practice of law for at least two years. Acknowledging that the respondent did not represent Ms. McCarthy, but emphasizing that she was aware that he was a lawyer and sought legal information from him “regarding ways to get around the requirement of a one-year separation,” it likens the respondent’s conduct to subornation of perjury, of which, the petitioner points out, it has been said, “[n]o more serious offense can be committed against our system of justice, which cannot function without truthful sworn testimony.”
Louisiana State Bar Ass’n v. Stewart,
500 So.2d 360, 363 (La.1987). To justify the recommended sanction, the petitioner relies on cases in which the sanctioned attorney’s misconduct consisted of, or involved, “advising or assisting clients and others to act dishonestly or to disobey court orders.” to wit:
Attorney Grievance Comm’n v. Protokowicz,
329 Md. 252, 258, 619 A.2d 100, 103 (1993);
Attorney Grievance Comm’n v. Pak,
400 Md. 567, 607, 929 A.2d 546, 569-70 (2007);
Attorney Grievance Comm’n v. Culver,
381 Md. 241, 275-76, 849 A.2d 423, 443-44 (2004);
Attorney Grievance Comm’n v. Hall,
298 Md. 230, 235-36, 468 A.2d
347, 350-51 (1983);
Attorney Grievance Comm’n v. Kerpelman,
288 Md. 341, 379-80, 420 A.2d 940, 958 (1980).
The respondent also does not except to the hearing court’s factual findings or conclusions of law. He maintains, however, that there are “mitigating facts and evidence brought out at the evidentiary hearing, and contained in the record transcript,” which must be taken into account, although “not alluded to in the Judge’s Memorandum Opinion.” Conceding that the e-mail to Ms. McCarthy “was both, ill-advised, as well as poorly worded, such that it left open the possibility that she might construe the email as an encouragement to misrepresent facts to the Court,” the respondent asserts that subsequent discussions he had with her made manifest his lack of intent that she so construe it and, in fact, is “evidence ... of his steps to remediate any potential misinterpretation by Ms. McCarthy had she ever seen[
] the subject email.” Therefore, taking full responsibility for his careless use of language in the e-mail, the respondent submits that “an” appropriate sanction for the unintentional violation of Rule 8.4(d) is a public reprimand, and the sanction that he “requests” this Court to impose in this case.
Neither party having taken exceptions to the factual findings, and, indeed, having no disagreement with regard to the facts, we treat the findings of fact as established. Rule 16-759(b) (2)(A).
See Attorney Grievance Comm’n v. Logan,
390 Md. 313, 319, 888 A.2d 359, 363 (2005). This leaves for resolution only the question as to the appropriate sanction to be imposed.
The cases on which the petitioner relies are not apposite.
In all of them, except Hall,
the respondent was found to have violated Rules other than Rule 8.4(d) and to have engaged in conduct other than that which is at the heart of this case— assisting or advising clients to act dishonestly or fraudulently. In
Protokowicz,
in addition to Rule 8.4, the respondent was found to have violated Rule 1.2(d),
and Rule 3.4(a).
Rules 3.3 (Candor Toward the Tribunal), 4.1 (Truthfulness in Statements to Others), 5.5 (Unauthorized Practice of Law), and
8.4(c) and (d) (Misconduct) were at issue in
Pah
400 Md. at 574-75, 929 A.2d at 550. In
Culver,
the Rules found to have been violated were 1.2 (Scope of Representation), 1.3 (Diligence), 1.5 (Fees), 1.7 (Conflict of Interest: General Rule), 1.15 (Safekeeping Property), 3.1 (Meritorious Claims and Contentions), 3.2 (Expediting Litigation), 3.4 (Fairness to Opposing Party and Counsel), and 8.4(b), (c), (d) (Misconduct). 381 Md. at 249, 849 A.2d at 427-28. At issue in
Kerpelman,
were DR 1-102(A)(1), (4), (5), and (6); DR 7-102(A)(7); and DR 7-106(A).
288 Md. at 344, 420 A.2d at 941. In each of the cases, more importantly, the attorney actually engaged in the conduct alleged, he or she actually assisted his or her client or intentionally gave the offending advice, intending that it be followed and acted upon; there was no suggestion of negligence or inadvertence about it.
By way of contrast, the hearing court found, not that the respondent intentionally engaged in the conduct, or gave the advice intending it to be followed, but simply that it “was such that it
could have
given Ms. McCarthy the impression that intentionally misrepresenting information to the Court is acceptable as long as the parties set forth the same information.” When the circumstance that the respondent discussed the e-mail with Ms. McCarthy a couple of days later and learned that she did not remember seeing the e-mail, and the fact that there is no indication that she acted on the e-mail, are taken into account, it is clear that there is a huge difference, so far as culpability is concerned, between what the respondents in the cases on which the petitioner relies did and what the respondent in this case did.
We have made clear so many times as not to require citation to authority that the purpose of attorney disciplinary proceedings is not to punish the erring attorney, only to protect the clients whom attorneys serve. To impose a sanction other than a reprimand, under the circumstances exant, would be, we believe, simply punishment. Accordingly, the respondent is hereby reprimanded.
IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING COSTS OF ALL TRANSCRIPTS, PURSUANT TO MARYLAND RULE 16-761, FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST JOHN A. ELMENDORF.