Attorney Grievance Commission v. Powers ( 2017 )

Attorney Grievance Commission v. James Aloysius Powers, Misc. Docket AG No. 8, September
Term 2016
ATTORNEY GRIEVANCE COMMISSION — DISCIPLINE — INDEFINITE
SUSPENSION
Respondent James Aloysius Powers, violated Maryland Lawyers’ Rules of Professional
Conduct 1.2, 1.4, 1.6, 1.9, 1.16(d), 3.1, 4.4, and 8.4(a), and (d). These violations stemmed from
Respondent’s misconduct during representation as well as post-representation of a client, whom
the attorney sued. During the litigation against his former client, Respondent revealed
information subject to the attorney-client privilege to the detriment of his former client. The
appropriate sanction is indefinite suspension.
Circuit Court for Montgomery County
Case No. 32033-M
Argued: February 6, 2017 IN THE COURT OF APPEALS
OF MARYLAND
Misc. Docket AG No. 8
September Term, 2016
______________________________________
ATTORNEY GRIEVANCE
COMMISSION OF MARYLAND
v.
JAMES ALOYSIUS POWERS
Barbera, C.J.
Greene,
Adkins,
McDonald,
Watts,
Hotten,
Getty,
JJ.
______________________________________
Opinion by Greene, J.
______________________________________
Filed: July 10, 2017
This attorney discipline case involves an attorney who failed to abide by his client’s
instructions concerning the handling of the client’s case, failed to communicate with the
client to permit him to make informed decisions about his case, and publicly disclosed
confidential client information in the course of suing the former client and a third person
in federal court, in a state where neither the former client nor the third party either resided
or had any contacts, in an effort to collect attorney’s fees.
On April 20, 2016, Petitioner, the Attorney Grievance Commission of Maryland
(“Commission”), acting through Bar Counsel, filed a Petition for Disciplinary or Remedial
Action against Respondent, James Aloysius Powers, pursuant to Maryland Rule 16-
751(a).1 The Commission charged Respondent with violating the Maryland Lawyers’
Rules of Professional Conduct (“MLRPC” or “Rule”) 1.2 (Scope of Representation); 1.4
(Communication); 1.6 (Confidentiality of Information); 1.9 (Duties to Former Clients);
1.16(d) (Termination of Representation); 3.1 (Meritorious Claims and Contentions); 4.4
(Respect for Rights of Third Persons); 8.4 (Misconduct).
This Court transmitted the matter to the Circuit Court for Montgomery County on
April 21, 2016 and designated the Honorable Michael D. Mason (the “hearing judge”) to
conduct an evidentiary hearing and make findings of fact and conclusions of law. The
hearing judge scheduled the case for a hearing on September 26 and 27, 2016, subject to
1
Effective July 1, 2016, the Maryland Lawyers’ Rules of Professional Conduct
(“MLRPC”) were renamed The Maryland Attorneys’ Rules of Professional Conduct
(“MARPC”) and re-codified, without substantive change, in Title 19 of the Maryland
Rules. Because we judge Respondent’s conduct against the extant law at the time of his
actions, we refer to the MLRPC throughout.
the approval of this Court. On July 25, 2016, this Court granted a motion to extend the
time to complete the hearing because it was scheduled to be completed more than 120 days
after service on Respondent of the order designating a judge to hear the case. See Md. Rule
16-575(a) (noting that the judicial hearing in a disciplinary matter “shall be completed
within 120 days after service on the respondent of the order designating a judge.”).
Petitioner served the Respondent with discovery requests in the form of
Interrogatories, Request for Production of Documents, and Requests for Admissions of
Fact and Genuineness of Documents on July 13, 2016. In addition, Petitioner filed various
other pre-trial motions; however, Respondent failed to file any response. On September
26, 2016, Petitioner appeared for a hearing on the merits; however, Respondent failed to
appear or respond as of that date to any of Petitioner’s discovery requests. As a result of
Respondent’s failure to appear at the hearing on the merits or respond to the request for
admissions of fact, the hearing judge deemed admitted Petitioner’s Requests for
Admissions of Fact and Genuineness of Documents. The hearing culminated with the
hearing judge’s adoption of Petitioner’s Proposed Findings of Fact and Conclusions of
Law.
I.
The Hearing Judge’s Findings
The hearing judge made the following findings of fact by clear and convincing
evidence. See Md. Rule 16-757(c) (noting that “Bar Counsel has the burden of proving the
averments of the petition by clear and convincing evidence.”). Respondent was admitted
to practice law in Maryland on June 23, 1993. He is also admitted to practice in New York
2
and Virginia.2 On February 22, 2012, Jeff A. Braun, a resident of Allendale, New Jersey,
retained Respondent to represent him in anticipation of litigation involving a dispute
between Mr. Braun and his business partner. Initially, Mr. Braun payed Respondent $5,000
as a retainer. The events that led up to Mr. Braun’s retention of Respondent began in
November 2010 when “Mr. Braun [had] purchased a sports park business know as Golden
Goal Tournament located in Fort Ann, New York.” The dispute between Mr. Braun and
his business partner began in 2011 and led to a lawsuit filed against Mr. Braun (hereinafter,
“the Golden Goal litigation,” or “New York litigation”) on March 5, 2012 in the Supreme
Court of the State of New York, Fort Edward, New York (a trial court). “Fort Edward is
approximately 180 miles or 3 hours from Mr. Braun’s [New Jersey] residence.”
In the Golden Goal litigation, Mr. Braun’s business partner requested a Temporary
Restraining Order (“TRO”) against Mr. Braun. At the inception of the lawsuit, Respondent
explained to Mr. Braun that “this case can be substantially won over the next 20 days.”
Respondent assured Mr. Braun that “he would have the suit removed to federal court or
move for a change of venue to the New York City area (where virtually all of the parties
reside).” Mr. Braun instructed Respondent not to consent to the TRO. Inconsistent with
Mr. Braun’s directions, Respondent consented to the TRO, failed to seek removal of the
2
In Petitioner’s Proposed Findings of Fact and Conclusions of Law, which the hearing
judge adopted in toto, Petitioner has stated in the “Procedural Posture” section that
Respondent is a member of the Bar of New York and the District of Columbia but has
stated in the “Aggravating and Mitigating Factors” section that Respondent is a member of
the Bar of New York and Virginia. This Court’s independent review reveals that
Respondent is a member of the Bar of Virginia and not a member of the Bar of the District
of Columbia.
3
case to federal court or move for a change of venue to the New York City area and failed
to respond to the plaintiff’s request for discovery. Although the court found Mr. Braun in
contempt of court for failure to respond to discovery, Respondent neither informed Mr.
Braun of the discovery violation nor the fact that Respondent had consented to the TRO on
Mr. Braun’s behalf.
Nathan Fink was a friend of Mr. Braun and also a tax attorney licensed in the state
of New Jersey. Apparently, Mr. Braun had communicated with his friend about the legal
and business problems confronting Mr. Braun before Mr. Braun retained Respondent. As
a result of this prior relationship, Mr. Braun authorized Mr. Fink to communicate with
Respondent “so that Mr. Braun could better understand what was going on in the Golden
Goal litigation” and “because [Respondent] failed to communicate with Mr. Braun in
laymen’s terms.” Seven months after Mr. Braun retained Respondent, “[i]n September
2012, Respondent withdrew from representation of Mr. Braun.” It appears that “Mr. Braun
requested that Respondent return his file on September 24, 2012[;] however, Respondent
did not do so until November 15, 2012” even though the Golden Goal litigation was
ongoing.
After Respondent terminated his representation, he sent a final bill to Mr. Braun for
$9,470. Mr. Braun disputed the final bill because he had already paid Respondent
approximately $48,000 and, in Mr. Braun’s opinion, the invoices were vague. In response
to Mr. Braun’s refusal to pay the final bill, Respondent “sent threating emails to Mr. Braun
and Mr. Fink. [He] threatened to report Mr. Fink to the New York attorney disciplinary
4
authorities, and threaten[ed] to sue both Mr. Braun and Mr. Fink.” Although Mr. Braun
asked to arbitrate the fee dispute, Respondent rejected the offer of arbitration.
In June of 2013, Respondent sued Mr. Braun and Mr. Fink in the United States
District Court for the District of Maryland alleging Breach of Contract with respect to Mr.
Braun and Tortious Interference and Unfair Competition with respect to Mr. Fink.
Respondent claimed damages in the amount of $1,015,000. Specifically, he alleged “that
Mr. Braun owed him attorney’s fees (plus interest) of approximately $15,000 and that Mr.
Fink had hindered the representation of Mr. Braun and interfered with the attorney/client
relationship between Respondent and Mr. Braun.”
Allegations contained in the complaint filed in the federal court touched upon
“matters from the New York litigation that were privileged due to the attorney/client
relationship and the accountant/client relationship.” In response to a Motion to Dismiss or,
in the Alternative, to Strike, Mr. Braun’s attorney argued that the federal court had “no
personal jurisdiction over Mr. Braun, no subject matter jurisdiction, and that the Complaint
contained privileged information.” In formulating a response to the Motion to Dismiss,
“Respondent filed affidavits from Mr. Braun’s former attorney (Mr. Goodman), former
accountant (Mr. Gallo), and from Respondent, all of which revealed privileged
information, strategic information related to the Golden Goal litigation, and information
intended to disparage Mr. Braun.” After Mr. Braun’s attorney filed a reply to Respondent’s
pleading, Respondent withdrew his complaint.
The hearing judge in this disciplinary case had before him, as evidence, the
documents that contained the privileged information. The hearing judge noted that when
5
the District Court judge issued her Memorandum Opinion and Order for dismissal of the
federal case, she ordered, among other things, that “the ‘majority’ of the information that
Mr. Braun sought to redact was confidential according to the attorney-client privilege and
‘much’ of the information [that] Mr. Braun sought to redact was confidential according to
the accountant-client privilege.”
The plaintiff in the Golden Goal litigation, having obtained the privileged
information that Respondent disclosed in his complaint against Mr. Braun, used that
information against Mr. Braun in the New York litigation.
Approximately ten months after Respondent had withdrawn as counsel for Mr.
Braun in the Golden Goal litigation, Respondent, on July 23, 2013, filed, with the court in
Fort Edward, an “Expedited Motion to Show Cause before the New York court hearing the
Golden Goal litigation.” In that motion, he requested that Mr. Braun show cause why he
should not pay the legal fees owed to Respondent and requested that the court investigate
Mr. Fink’s alleged misconduct. In his motion, Respondent specifically contended that “[a]
prior motion on this matter was filed, wisely sealed by this court[,] and eventually
withdrawn—but not because anything in that motion was false or factually incorrect.
Rather, because it was filed in haste including more personal affect than legal effect which
this motion endeavors to address.” In addition to the July 23, 2013 Expedited Motion to
Show Cause, a previous Expedited Motion was also filed on May 6, 2013, after Respondent
had withdrawn from the representation of Mr. Braun. The Fort Edward court did not rule
on either Expedited Motion. Eventually, venue in the Golden Goal litigation was
transferred from the Fort Edward, New York area to the Manhattan, New York City area.
6
Apparently, in a continuing effort to collect attorney’s fees, in January 2014, Respondent
wrote to Judge Charles E. Ramos, Judge of the New York State Supreme Court,
Commercial Division, and requested that Judge Ramos advise Respondent on how he could
best present a Motion to Compel Payment of Fees to the Court. Judge Ramos declined the
request.
II.
The Hearing Judge’s Conclusions of Law
The hearing judge adopted Petitioner’s proposed conclusions of law and found by
clear and convincing evidence that Respondent violated MLRPC 1.2; 1.4; 1.6; 1.9; 1.16(d);
3.1; 4.4; 8.4(a) and 8.4(d).
Conclusions of Law
Rule 1.2 Scope of Representation and allocation of authority between
client and lawyer
Rule 1.2(a) provides that a lawyer “shall abide by a client’s decisions concerning
the objectives of the representation and, when appropriate, shall consult with the
client as to the means by which they are to be pursued.” Further, “[a] lawyer may
take such action on behalf of the client as is impliedly authorized to carry out the
representation. A lawyer shall abide by a client’s decision whether to settle a
matter.” An attorney violates Rule 1.2(a) if 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 decisions. Attorney Grievance [Comm’n] v. Hamilton, 444 Md. 163,
182, 118 A.3d 958, 968 (2015).
In order for a lawyer to abide by a client’s decisions concerning
representation, the client must be able to make informed decisions as to the
objectives of the representation. Id. at 182, 968–69. In order for a client to make
informed decisions, an attorney must give the client honest updates regarding the
status of his or her case. Id., citing Attorney Grievance [Comm’n] v. Shapiro, 441
Md. 367, 380, 108 A.3d 394, 402 (2015). An attorney may violate Rule 1.2(a) if
he or she fails to follow the instructions of the client. Attorney Grievance
[Comm’n] v. Sperling, 432 Md. 471, 493, 69 A.3d 478, 490–91 (2013) (quoting
Attorney Grievance [Comm’n] v. Reinhardt, 391 Md. 209, 220, 222, 892 A.2d,
7
533, 539–40 (2006) (internal quotations omitted).
In this case, Respondent violated Rule 1.2 when he failed to abide by Mr.
Braun’s instructions not to consent to the Temporary Restraining Order
(hereinafter, “TRO”). He also failed to file a motion to change venue to New
York City, and he failed to have the case removed to federal court. See
Petitioner’s Exhibit 1, Tab 1. Further, Respondent failed to inform Mr. Braun
that Respondent agreed to produce Mr. Braun’s tax returns to opposing counsel.
When such tax returns were not produced, the court held Mr. Braun in contempt
of court. Id.Rule 1.4 Communication
Rule 1.4 provides that:
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with
respect to which the client’s informed consent, as defined in Rule
1.0(f), is required by these Rules;
(2) keep the client reasonably informed about the status of the matter;
(3) promptly comply with reasonable requests for information; and
(4) consult with the client about any relevant limitation on the
lawyer’s conduct when the lawyer knows that the client expects
assistance not permitted by the Maryland Lawyers’ Rules of
Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to
permit the client to make informed decisions regarding the representation.
Attorneys violate Rule 1.4 when they fail to communicate with their clients
and keep them informed of the status of their legal matters. Attorney
Grievance [Comm’n] v. Kwarteng, 411 Md. 652, 658, 984 A.2d 865, 868–69
(2009). In Attorney Grievance [Comm’n] v. De La Paz, Respondent in that
matter failed to tell his client that his case had been dismissed, which fact the
client learned only after traveling to the courthouse to inquire. 418 Md. 534,
554, 16 A.3d 181, 192–93 (2011). Similarly, in Attorney Grievance
[Comm’n] v. Fox, the attorney violated Rule 1.4 when he did not know that
the client’s case was dismissed and accordingly did not communicate that
fact to the client. 417 Md. 504, 517, 11 A.3d 762, 769 (2010). In Attorney
Grievance [Comm’n] v. Thomas, the attorney violated Rule 1.4 when he
ceased communicating with the client after he told the client not to appear at
his removal (deportation) hearing, and then failed to tell the client that he had
been ordered removed in absentia. 440 Md. 523, 553–54, 103 A.3d 629, 647
(2014).
In the case at bar, Respondent violated Rule 1.4(a) when he failed to
inform Mr. Braun that he had consented to the TRO. See Petitioner’s Exhibit
8
1 at 18. He also violated Rule 1.4(a) by failing to tell Mr. Braun that he
needed to produce his tax returns, and later, after he failed to do so, that Mr.
Braun had been found in contempt of court. Id. at 21. Respondent violated
Rule 1.4(b) because he failed to explain what was happening in the Golden
Goal litigation in a manner that Mr. Braun could understand. Id. at 25. As
such, Mr. Braun had enlisted the help of his friend, attorney Nathan Fink, to
communicate with Respondent. Id. at 24–25.
Rule 1.6 Confidentiality of information
“A lawyer shall not reveal information relating to representation of a client
unless the client gives informed consent [and] the disclosure is impliedly
authorized in order to carry out the representation[.]” Rule 1.6(a). Only the
client has the power to waive the attorney-client privilege. Newman v. State,
384 Md. 285, 863 A.2d 321 (2004). The importance of the attorney client
privilege has been described as follows:
By turns both sacred and controversial, the principle of the
confidentiality of client information is well-embedded in the
traditional notion of the Anglo-American client-lawyer relationship.
CHARLES W. WOLFRAM, MODERN LEGAL ETHICS § 6.1.1, at
242 (1986). “The professional rules ... [embrace] a broad ethical duty
not to divulge information about a client.” Id. (emphasis added). An
attorney’s duty of confidentiality applies not only to privileged
“confidences,” but also to unprivileged secrets; it “exists without
regard to the nature or source of the information or the fact that others
share the knowledge.” Perillo v. Johnson, 205 F.3d 775, 800 n. 9 (5th
Cir. 2000) (quoting ABA Model Code of Professional Responsibility
Canon 4, DR 4-101 and EC 4-4) (internal quotation marks and
alterations omitted). “The confidentiality rule applies not merely to
matters communicated in confidence by the client[,] but also to all
information relating to the representation, whatever its source.” Id.at 800 n. 10 (quoting ABA Model Rules of Professional
Responsibility 1.6 & cmt.5) (emphasis added); accord, United States
v. Edwards, 39 F. Supp.2d 716, 724 (M.D. La. 1999) (collecting
authorities); United States v. Mackey, 405 F. Supp. 854, 860
(E.D.N.Y. 1975) (Weinstein, 1.) (emphasizing breadth of attorney’s
obligation).
In re Gonzalez, 773 A.2d 1026, 1030-1031 (D.C. 2001).
In this case, Respondent violated the sacred and well-embedded
concept embodied by Rule 1.6 by disclosing information that Respondent
obtained by way of his representation of Mr. Braun in the Golden Goal
litigation. He disclosed this information in a public forum, i.e., in a lawsuit
brought in federal court, in order to recoup money that he believed Mr. Braun
owed him. Mr. Braun did not consent to these disclosures. See Affidavit of
9
Jeff Braun in Support of Motion to Dismiss Pursuant to Fed. R. Civ. P.
12(b)(2), at Petitioner’s Exhibit 1, Tab 15, page 73–74, § 13. Mr. Braun had
to hire an attorney in Maryland to assist him not only with the underlying
controversy, but with getting the privileged information redacted from the
record. See Petitioner’s Exhibit 1 at Tabs 15 and 16. Judge Hollander held
that the “majority” of the information that Mr. Braun sought to redact was
confidential according to the attorney-client privilege and “much” of the
information Mr. Braun sought to redact was confidential according to the
accountant-client privilege. See Petitioner’s Exhibit 1, Tab 19, pages 142–
143.
Rule 1.9. Duties to former clients
Rule 1.9 provides that:
(c) A lawyer who has formerly represented a client in a matter
or whose present or former firm has formerly represented a
client in a matter shall not thereafter:
(1) use information relating to the representation to the
disadvantage of the former client except as these Rules
would permit or require with respect to a client, or when
the information has become generally known; or
(2) reveal information relating to the representation
except as these Rules would permit or require with
respect to a client.
In Attorney Grievance [Comm’n] v. Siskind, the Court of Appeals held that
an attorney violated Rule 1.9 when he filed a suit sounding in contract against
a former client, a corporation, which was an entity he created, over a business
transaction he helped construct by creating the relevant documents central to
the contract suit. 401 Md. 41, 64, 930 A.2d 328, 342 (2007). In this case,
Respondent revealed confidential information of his former client, Mr.
Braun, to Mr. Braun’s disadvantage, to wit: he filed three affidavits in federal
court, via the electronic filing system, that were available to the public to
view. See Petitioner’s Exhibits 15, 16, and 22–26. The disclosure of this
privileged information hurt Mr. Braun in the Golden Goal litigation. Id. at
Tab 1, pages 11–12.
Rule 1.16(d) Termination of Representation
When the lawyer/client relationship ends, Rule 1.16(d) requires that:
([d]) Upon termination of representation, a lawyer shall take steps to
the extent reasonably practicable to protect a client’s interests, such as
giving reasonable notice to the client, allowing time for employment
of 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 or incurred. The lawyer may retain papers
10
relating to the client to the extent permitted by other law.
In Attorney Grievance [Comm’n] v. Landeo, 446 Md. 294, 335–337,132 A.3d
196, 220–221 (2016), an attorney violated Rule 1.16(d) after she was
terminated by two different clients. In both cases, she took several months
to transmit her clients’ files to their new attorneys when they had active
applications for benefits in process with United States Citizenship and
Immigration Services. Id. She did not refund the clients’ fees until the eve
of the trial in her attorney grievance matter. Id.In Mr. Braun’s case, it was Respondent who ended the attorney-client
relationship, but he took two months to return Mr. Braun’s file to him in its
entirety. See Petitioner’s Exhibit 1 at ¶¶27–28. The delay in receiving his
complete file was particularly damaging to Mr. Braun because the Golden
Goal matter was, and still is, being actively litigated. It also took Respondent
two months to send Mr. Powers Respondent’s final bill. See also Final
Invoice from Respondent to Mr. Braun dated November 15, 2012, in the
record at Petitioner’s Exhibit 1, Tab 13. Respondent’s delay in transmitting
Mr. Braun’s file and final invoice to him is in violation of Rule 1.16(d).
Rule 3.1. Meritorious claims and contentions
“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.” See Rule 3.1. In Attorney Grievance [Comm’n] v. Mixter, the
Court upheld the trial court’s finding that Respondent had violated Rule 3.1
when he attempted to enforce over one-hundred and twenty unenforceable
subpoenas through meritless motions to compel in order to coerce his
opposing parties into compliance with his excessive discovery requests. 441
Md. 416, 511, 109 A.3d 1, 58 (2015). In another case where an attorney was
found to have violated Rule 3.1, the Court held that “[t]he legal process
should never be used as the Respondent did here, i.e., merely [as] a device to
apply pressure to the other parties . . . ”. Attorney Grievance [Comm’n] v.
Gisriel, 409 Md. 331, 356–57, 974 A.2d 331, 346 (2009). Here, Respondent
violated Rule 3.1 when he used the legal process as “a device to apply
pressure” to Mr. Braun. After being unsuccessful in recouping his fees by
filing motions with the New York courts, Respondent sued Mr. Braun and
Mr. Fink in the U.S. District Court for the District of Maryland, a court which
had no personal or subject matter jurisdiction over either of them. See
Petitioner’s Exhibit 1, Tabs 15–16. Mr. Braun’s and Mr. Fink’s attorneys
filed Motions to Dismiss in which they pointed out the flaws in Respondent’s
case.
Respondent then filed his own Motion to Withdraw, stating that the
New York courts were handling his motion for attorney’s fees, an avenue
which was available to him previously. Respondent’s claims against Mr.
Braun and Mr. Fink plainly lacked subject matter and personal jurisdiction,
11
and were filed in an effort to pressure Mr. Braun to pay his final bill. Id.Respondent’s use of the federal court system of Maryland to collect
$9,470.00 in overdue legal fees clearly violated Rule 3.1.
Rule 4.4. Respect for rights of third persons
Rule 4.4 provides that:
(a) In representing a client, a lawyer shall not use means that have no
substantial purpose other than to embarrass, delay, or burden a third
person, or use methods of obtaining evidence that the lawyer knows
violate the legal rights of such a person.
In Attorney Grievance [Comm’n] v. Mixter, the Court found that the attorney
violated Rule 4.4(a) when, during litigation in which he represented himself,
Mixter had attempted “to harass and intimidate the defendants” by requesting
their entire driving histories under “a multitude of disingenuous
arguments[.]” As the Circuit Court Judge in Mixter stated, the driving
records “had absolutely nothing to do with the pending claim for defamation
and that the subpoena was aimed solely at harassing the defendant[s].”
Mixter intentionally pursued the defendants’ driving records without basis,
causing his opposition to use time and resources to obtain protective orders
as to their driving records, and delaying litigation, thereby violating Rule
4.4(a). 441 Md. at 522, 109 A.3d at 65.
In the instant case, Respondent, in representing himself in his case
against Mr. Braun and Mr. Fink, filed his collections case in the U.S. District
Court of Maryland, which was a tactic that had “no substantial purpose other
than to embarrass, delay, or burden” Mr. Braun and Mr. Fink. Respondent
knew, or should have known, that the U.S. District Court of Maryland had
neither personal nor subject matter jurisdiction over Mr. Braun and Mr. Fink,
both of whom lived in New Jersey, worked in New Jersey and New York,
and participated in the Golden Goal litigation in New York.
Additionally, the act of suing Mr. Fink, who is Mr. Braun’s friend and
long-time tax attorney, was also an act with “no substantial purpose other
than to embarrass, delay, or burden” Mr. Fink. Respondent sued his former
client’s friend for $1,000,000 for “willfully” interfering with Respondent’s
contractual relationship with Mr. Braun, “clandestinely instructing his client
and other professionals to take actions materially affecting the New York
litigation,” and causing Respondent to be “damaged in the form of lost
income and lost time and in amounts to be proved at trial.” See Complaint,
in the record at Petitioner’s Exhibit 1, Tab 23. Respondent also sued Mr.
Fink for “taking over aspects of the New York litigation and by competing
with Mr. Powers in so doing.” Id. Finally, Respondent states in his complaint
that “Mr. Fink has and continues to enjoy a lucrative financial relationship
with Mr. Braun and his intentional interference ... was a part of his campaign
of unfair competition.” Id. The above quoted statements indicate that
12
Respondent valued his potential financial enrichment from Mr. Braun far
more so than keeping Mr. Braun’s confidences and respecting Mr. Braun’s
choice regarding how, if at all, he chose to involve Mr. Fink in his litigation.
Rule 8.4. Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Maryland Lawyers’ Rules of
Professional Conduct, knowingly assist or induce another to do so, or
do so through the acts of another;
***
(d) engage in conduct that is prejudicial to the administration of justice;
Rule 8.4(a) makes it professional misconduct for a lawyer to violate
or attempt to violate the Maryland Lawyers’ Rules of Professional Conduct,
knowingly assist or induce another to do so, or do so through the acts of
another. Rule 8.4(a) is violated when other Rules of Professional Conduct
are breached. Attorney Grievance [Comm’n] v. Gerace, 433 Md. 632, 645,
72 A.3d 567, 575 (2013). As noted above and further described below,
Respondent violated several Rules of Professional Conduct and therefore,
also violated Rule 8.4(a).
Finally, Rule 8.4(d) states that it is professional misconduct for a
lawyer to engage in conduct that is prejudicial to the administration of justice.
Conduct prejudicial to the administration of justice is that which “reflects
negatively on the legal profession and sets a bad example for the public at
large[.]” Attorney Grievance [Comm’n] v. Goff, 399 Md. 1, 22, 922 A.2d
554, 567 (2007). In this case, Respondent’s conduct is unquestionably
prejudicial to the administration of justice and has brought the legal
profession into disrepute. Respondent, acting as Mr. Braun’s former lawyer,
sued Mr. Braun and Mr. Braun’s friend for $1,015,000.00 collectively, in a
federal court in a state in which neither defendant resided or had any contacts
with, in an effort to collect $9,470.00 in attorney’s fees. Mr. Braun and Mr.
Fink had to hire attorneys in Maryland to defend themselves. The Complaint
and several affidavits filed in support of his opposition to Mr. Braun’s
Motion to Dismiss revealed confidential information that was subject to the
attorney-client and accountant-client privilege. After [Mr. Braun’s] attorney
filed a response, Respondent withdrew the complaint, and stated that he
would pursue the matter in New York. His conduct undeniably brings the
legal profession into disrepute.
III.
Standard of Review
13
In attorney discipline proceedings, “this Court has original and complete
jurisdiction.” Attorney Grievance Comm’n v. Page, 430 Md. 602, 626, 62 A.3d 163, 177
(2013). Upon review of the findings of facts, this Court accepts “the hearing judge’s
findings of fact unless shown to be clearly erroneous[.]” Attorney Grievance Comm’n v.
Blair, 440 Md. 387, 400, 102 A.3d 786, 793 (2014). Where no exceptions to the hearing
judge’s findings of fact are filed, this Court “may treat the findings of fact as established
for the purpose of determining appropriate sanctions.” Attorney Grievance Comm’n v.
Gray, 444 Md. 227, 250, 118 A.3d 995, 1008 (2015). We review the hearing judge’s
conclusions of law de novo. Attorney Grievance Comm’n v. Storch, 445 Md. 82, 89, 124
A.3d 204, 208 (2015).
Neither party has taken exception to the hearing judge’s findings of facts.
Therefore, we deem Judge Mason’s findings of fact as established by clear and convincing
evidence. See Rule 16-727(c); see also Gray, 444 Md. at 250, 118 A.3d at 1008. As to
his conclusions of law, the hearing judge determined that Respondent violated MLRPC
1.2, 1.4, 1.6, 1.9, 1.16(d), 3.1, 4.4, and 8.4(a) and 8.4(d). Based upon our independent
review of the record, we are satisfied that the facts support the hearing judge’s conclusions
of law.
Discussion
Rule 1.2(a) provides that a lawyer “shall abide by a client’s decisions concerning
the objectives of the representation and, when appropriate, shall consult with the client as
to the means by which they are to be pursued.” Further, “[a] lawyer may take such action
on behalf of the client as is impliedly authorized to carry out the representation.” An
14
attorney’s failure to inform a client of the status of his or her case, which denies the client
the ability to make informed decisions may be a violation of Rule 1.2(a). See Attorney
Grievance Comm’n v. Hamilton, 444 Md. 163, 182, 118 A.3d 958, 968 (2015).
Additionally, an attorney may violate Rule 1.2(a) if he or she fails to follow the client’s
instructions. See Attorney Grievance Comm’n v. Sperling, 432 Md. 471, 493, 69 A.3d 478,
490-91 (2013). During his representation of Mr. Braun, Respondent failed to abide by his
client’s instructions regarding the course of action of the litigation, specifically as it related
to the TRO and the change of venue of the court. Additionally, Respondent failed to inform
his client that Respondent had agreed to produce the client’s tax returns to opposing
counsel. Respondent’s client was later held in contempt when he failed to produce the tax
documents.
Under Rule 1.4, attorneys are required to keep their clients informed of the status of
the case. Rule 1.4 provides that:
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect
to which the client’s informed consent, as defined in Rule 1.0(f), is required
by these Rules;
(2) keep the client reasonably informed about the status of the matter;
(3) promptly comply with reasonable requests for information; and
(4) consult with the client about any relevant limitation on the lawyer’s
conduct when the lawyer knows that the client expects assistance not
permitted by the Maryland Lawyers’ Rules of Professional Conduct or other
law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to
permit the client to make informed decisions regarding the representation.
15
In Attorney Grievance Comm’n v. Fox, 417 Md. 504, 517, 11 A.3d 762, 769 (2010), the
attorney violated Rule 1.4 when he was unaware that his client’s case had been dismissed
and thus did not communicate this fact to the client. Here, Respondent failed to inform his
client that Respondent had consented to the TRO. Respondent also failed to tell Mr. Braun
that he needed to produce tax returns to the opposing party. Further, Respondent violated
Rule 1.4 when he failed to communicate with his client in a way that his client could
understand. Respondent’s failure in this respect made it necessary for Mr. Braun to enlist
the help of an attorney friend.
Respondent’s conduct during his representation of Mr. Braun demonstrated clear
violations of the Maryland Lawyers’ Rules of Professional Conduct; however, his most
egregious actions occurred after his representation of Mr. Braun. Casting the darkest
shadow over Respondent’s conduct are his violations of Rules 1.6 and 1.9. Rule 1.6
provides that “[a] lawyer shall not reveal information relating to representation of a client
unless the client gives informed consent [and] the disclosure is impliedly authorized in
order to carry out the representation[.]” The attorney-client privilege belongs to the client;
the attorney cannot legally waive the privilege on behalf of the client without the client’s
consent. See Newman v. State, 384 Md. 285, 301, 863 A.2d 321, 330 (2004). Petitioner
has not cited, and we have not found, a Maryland case in which an attorney violated Rule
1.6 by disclosing, without consent, information that was subject to the attorney-client
privilege.
The Supreme Court of Appeals of West Virginia, however, has had occasion to
address this type of violation. In Lawyer Disciplinary Bd. v. Farber, 488 S.E.2d 46016
(W.Va. 1997), the attorney of record, Farber, filed a motion to withdraw as counsel in a
case where his client, also an attorney, had entered a plea of nolo contendere to a
misdemeanor charge of obstructing an officer in the performance of duty. In the motion,
Farber contended that his client either had testified falsely at the nolo contendere plea
hearing or would testify falsely at an up-coming hearing at which the client intended to set
aside the plea. Id. at 462. In an affidavit attached to the motion to withdraw as counsel,
Farber revealed that the client had expressed a belief that he would have been convicted of
battery had the issue been presented to the jury. Id. at 462-63. This disclosure concerning
the apparent admission of a battery had been made to Farber during the course of the
attorney-client relationship. Id. at 463. Farber also sent a letter to his client, which stated,
in part, “I’m going to do everything in my power to even the score with you.” Id. The
Supreme Court of Appeals of West Virginia explained that Farber’s statements “revealed
confidential information, were potentially to the disadvantage of [his client] and were
threatening.” Id. at 466. In the case at bar, Respondent disclosed, without consent,
information that he had obtained during the course of his representation of Mr. Braun.
Respondent disclosed the information in a public forum via the federal court’s electronic
filing system, which enabled the opposing party in the Golden Goal litigation to use that
information against Mr. Braun. Additionally, when Respondent was unsuccessful at
resolving the dispute regarding his legal fees, Respondent wrote to Mr. Braun and Mr.
Fink, stating:
Dear Jeff and Nate,
Power can be used.
17
Power can be abused.
In my opinion, you both have abused the considerate financial and
legal powers you hold.
I gave you every opportunity to just let me go and leave you both to
your own devices.
You ignored every outreach and thereby compelled this action.
So, let us get another opinion of my entitlement to payment and of
your joint conduct.
We can settle and resolve this immediately by payment – in full – of
my fees.
And Nate, if you want to fight this, here’s my strategy: The court can
investigate this and will likely find that you tortuously [sic] interfered
(and the NY bar will have its role). I will use the findings of my NY
judges and my NY bar and then use them in civil action for damages
and an exemplary/punitive award against you.
Jaime Powers
Rule 1.9 provides, in relevant part, that:
(c) An attorney who has formerly represented a client in a matter or whose
present or former firm has formerly represented a client in a matter shall not
thereafter:
(1) use information relating to the representation to the disadvantage
of the former client except as these Rules would permit or require with
respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as
these Rules would permit or require with respect to a client.
An attorney violated Rule 1.9 when he filed a breach of contract action against a former
client, a corporation, which the attorney had previously represented. Attorney Grievance
Comm’n v. Siskind, 401 Md. 41, 930 A.2d 328 (2007). The suit against the former client
involved enforcement of a purchase agreement, which the attorney had drafted in his legal
representation of the corporate client. Id. As we previously discussed, here, Respondent
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revealed confidential information related to his former client in the complaint that he filed
in federal court. Upon Mr. Braun’s filing of a motion to dismiss Respondent’s complaint,
Respondent filed affidavits from Mr. Braun’s former attorney, Mr. Braun’s former
accountant, and Respondent. The affidavits revealed information related to Mr. Braun’s
strategy in the pending Golden Goal litigation, information Respondent had obtained from
conversations with Mr. Braun’s accountants, as well as information Respondent had
acquired in his capacity as Mr. Braun’s attorney. Furthermore, the affidavits revealed
information that was intended to disparage Mr. Braun.
Rule 1.16(d) provides that:
Upon termination of representation, a lawyer shall take steps to the extent
reasonably practicable to protect a client’s interests, such as giving
reasonable notice to the client, allowing time for employment of 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
or incurred. The lawyer may retain papers relating to the client to the extent
permitted by other law.
An attorney may violate Rule 1.16(d) when, following the termination of representation,
the attorney delays in returning the case file to the client. See Attorney Grievance Comm’n
v. Landeo, 446 Md. 294, 335-37, 132 A.3d 196, 220–21 (2016). Respondent violated Rule
1.16(d) when, after he ended the attorney-client relationship with Mr. Braun, he delayed in
returning his client’s file. Respondent also delayed in transmitting his client’s final invoice.
Rule 3.1 provides that “[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. . .”.
In Attorney Grievance Comm’n v. Grisriel, 409 Md. 331, 356–57, 974 A.2d 331, 346
19
(2009), we held that where an attorney used a “shotgun approach to get everyone’s
‘attention’” by including individuals in a lawsuit without any basis for doing so, the
attorney violated Rule 3.3. We imposed a sanction for the attorney’s misconduct and
explained that “[t]he legal process should never be used as the [attorney] did here, i.e.
merely [as] a device to apply pressure to the other parties[.]” Here, Respondent did just
that: he filed suit against his now-former client and a third party in a federal court that
lacked personal and subject matter jurisdiction over the defendants, merely in an effort to
extract legal fees by any means. Respondent knew or should have known that the federal
court lacked personal and subject matter jurisdiction over his former client and the third
party. Respondent apparently did know that the District Court of Maryland lacked
jurisdiction because Respondent withdrew his pleadings from that court and pursued the
parties in the New York court system, which was an avenue available to him from the
outset. Furthermore, Respondent sued the third party for $1,000,000 based on a claim of
contractual interference.
Rule 4.4(a) provides that:
(a) In representing a client, a lawyer shall not use means that have no
substantial purpose other than to embarrass, delay, or burden a third
person, or use methods of obtaining evidence that the lawyer knows
violate the legal rights of such a person.
In Attorney Grievance Comm’n v. Mixter, 441 Md. 416, 522, 109 A.3d 58, 65 (2015), we
held that an attorney violated Rule 4.4 when he “intentionally pursued the defendants’
driving records without basis, causing his opposition to use time and resources to obtain
protective orders as to their driving records, and delaying litigation, thereby violating Rule
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4.4(a).” In the case at bar, Respondent filed suit against his former client and a third-party
as a means of compelling his former client to pay Respondent’s outstanding legal bill.
Respondent’s former client as well as the third party incurred legal fees as a result of having
to defend against Respondent’s suit in Maryland. Respondent’s tactics had “no substantial
purpose other than to embarrass, delay, or burden” his former client and the third party.
Rule 8.4 provides, in relevant part, that:
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Maryland Lawyers’ Rules of Professional
Conduct, knowingly assist or induce another to do so, or do so through
the acts of another;
* * *
(d) engage in conduct that is prejudicial to the administration of justice.
An attorney violates Rule 8.4(a) when he or she violates other Rules of Professional
Conduct. See Attorney Grievance Comm’n v. Gerace, 433 Md. 632, 645, 72 A.3d 567, 575
(2013). Furthermore, an attorney who engages in conduct that is prejudicial to the
administration of justice violates Rule 8.4(d). We have described conduct prejudicial to
the administration of justice as that which “reflects negatively on the legal profession and
sets a bad example for the public at large.” Attorney Grievance Comm’n v. Goff, 399 Md.
1, 22, 922 A.2d 554, 567 (2007). Respondent’s act of filing suit in a federal court in a state
where neither defendant resided nor had any contacts, in an effort to collect $9,470 of legal
fees, is conduct that brings the legal profession into disrepute. Respondent caused both
defendants to incur legal fees to defend against a complaint that never should have been
filed in Maryland and that he later withdrew. As discussed, he disclosed, in a public forum,
confidential information that was obtained during his prior representation and subject to
21
the attorney-client privilege and the accountant-client privilege. This conduct denigrates
the legal profession.
IV.
Sanction
When deciding the proper sanction for Respondent’s misconduct, we are well aware
that “the purpose of attorney discipline is to protect the public, not punish the attorney.”
Attorney Grievance Comm’n v. Framm, 449 Md. 620, 664-65, 144 A.3d 827, 853 (2016).
Additionally, we remain mindful that attorney discipline is “directed at deterring other
lawyers from violating the Maryland Lawyers’ Rules of Professional Conduct and to
maintain the integrity of the legal profession.” Mixter, 441 Md. at 527, 109 A.3d at 68.
The appropriate sanction for Respondent’s misconduct is a question of whether the
sanction is “commensurate with the nature and gravity of the violations and the intent with
which they were committed.” Attorney Grievance Comm’n v. Moore, 451 Md. 55, 88, 152
A.3d 639, 658 (2017). When determining the proper sanction, we measure the attorney’s
misconduct against any mitigating and aggravating factors. Framm, 449 Md. at 664, 144
A.3d at 854.
The Petitioner recommends that we suspend Respondent from the practice of law
indefinitely due to the severity of his misconduct and the presence of multiple aggravating
factors. The Petitioner contends that Respondent knowingly and intentionally violated the
Rules, as evidenced, for example, by his correspondence with Mr. Braun and Mr. Fink.
Further, the Petitioner notes that even after Mr. Braun filed a complaint against Respondent
with the Attorney Grievance Commission of Maryland, Respondent continued to litigate
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the fee dispute in the New York courts. Respondent recommends that we impose a sanction
no greater than a reprimand because of what he characterizes as mitigating factors affecting
his misconduct. However, we conclude that the aggravating factors outweigh the
mitigating factors even assuming that those mitigating factors had been found by the
hearing judge.
At oral argument, before this Court, Mr. Powers urged us to find that an indefinite
suspension would be inappropriate. Mr. Powers raised his personal circumstances as
mitigating factors. He indicated that he missed the discovery deadline and the disciplinary
hearing because they occurred during a difficult time in his life when his wife had left him,
his daughter refused to speak to him, and he had recently lost his brother-in-law, father,
mother, and dog. It is important to note that Mr. Powers did not timely present any of these
mitigating factors to the hearing judge in this case. Moreover, the hearing judge did not
find any mitigating factors.
We have recognized the following mitigating factors in imposing sanctions:
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 consequences 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 proceedings; interim
rehabilitation; imposition of other penalties or sanctions; remorse; and
finally, remoteness of prior offenses.
Attorney Grievance Comm’n v. Hodes, 441 Md. 136, 209, 105 A.3d 533, 576 (2014)
(internal citation omitted). Under Md. Rule 16-757(b), at a disciplinary hearing “the
respondent has the burden of proving an affirmative defense or a matter of mitigation or
23
extenuation by a preponderance of the evidence.” Attorney Grievance Comm’n v.
Christopher, 383 Md. 624, 638, 861 A.2d 692, 700 (2004).
We have said that in order “[f]or a mental disability to be considered as a potential
mitigating factor, there must be evidence that it existed and caused the attorney’s
misconduct.” Attorney Grievance Comm’n v. Kremer, 432 Md. 325, 341, 68 A.3d 862,
871–72 (2013). Mr. Powers’ reliance upon the personal losses that he sustained in his
explanation to this Court do not mitigate the sanction to be imposed in this case. He offers
no compelling extenuating circumstances based upon supporting testimony from medical
professionals or evidence of a medical condition or treatment that caused his intentional
misconduct. See Attorney Grievance Comm’n v. Palmer, 417 Md. 185, 212–13, 9 A.3d
37, 53 (2010) (reasoning that, “any alleged psychological issues Respondent was dealing
with contemporaneously with his misconduct do not rise to a level sufficient to meet
Vanderlinde’s requirements, and therefore, without more, do not mitigate the sanction here
to less than disbarment”); Attorney Grievance Comm’n v. Guida, 391 Md. 33, 62, 891 A.2d
1085, 1102 (2006) (determining that, “while Respondent suffered from a severe major
depression at the relevant times, his depression (and related sequelae) was not so great that
it satisfied the Vanderlinde threshold for mitigation of the sanction for his violations of the
MRPC”); Attorney Grievance Comm’n v. Goodman, 381 Md. 480, 496, 850 A.2d 1157,
1167 (2004) (finding, despite respondent’s claims that physical problems, emotional
problems, or any other host of problems he noted, caused or mitigated his behavior in this
case, “the record in this case does not demand or even support a finding that ‘the most
serious and utterly debilitating mental or physical health conditions’ caused Respondent’s
24
inability to conform his conduct in accordance with the law and with the rules.”); see also
Attorney Grievance Comm’n v. Kovacic, 389 Md. 233, 236, 884 A.2d 673, 675 (2005)
(holding that bar counsel’s recommendation of indefinite suspension would be imposed as
“respondent did not appear for the hearing and thus the reasons, or motive, for her inaction
were not, and could not have been explored. . . . While the respondent represented that she
was suffering from a medical condition [at oral argument] that caused her to cease
practicing law and made her return to the practice in the foreseeable future uncertain, the
respondent has failed to submit documentation to confirm its existence, despite having been
requested, and having agreed, to do so.”).
Having found no basis for mitigation, the hearing judge found five aggravating
factors. See Sperling, 432 Md. at 495-96, 69 A.3d at 492 (citing aggravating factors from
Standard 9.22 of the American Bar Association Standards for Imposing Lawyer Sanctions).
Respondent displayed dishonest or selfish motives in pursuing litigation against his former
client in an attempt to collect $9,470 in legal fees, basing the litigation on the belief that
Mr. Fink was interfering with Respondent’s representation of Mr. Braun. In addition,
Respondent violated multiple disciplinary Rules, specifically 1.2, 1.4(a) and (b), 1.6,
1.9(c), 1.16(d), 3.1, 4.4(a), 8.4(a) and (d). Respondent failed to acknowledge the wrongful
nature of his misconduct. Rather than provide evidence of remorse or an appreciation for
the impropriety of his conduct, he responded to the Petition for Disciplinary or Remedial
Action by describing his actions as “lawful and undertaken in direct response to, and as a
consequence of Mr. Braun’s intentional misconduct[,]” stating that he would “show how
the revelations made by Respondent were integral to the dispute that Respondent had with
25
Mr. Braun and all as authorized under both Maryland and New York ethical rules and
obligations.” Respondent’s experience in the practice of law is an aggravating factor
because he has been a member of the Maryland Bar for twenty-three years and he is also a
member of the Bar of New York and Bar of Virginia. Finally, Respondent demonstrated
indifference to making restitution because he has maintained that he has done nothing
wrong and, during these disciplinary proceedings, continued to pursue litigation against his
former client and a third party.
Turning now to the case law, we must determine the proper sanction in light of our
goals to protect the public, deter intolerable conduct, and maintain the integrity of the
profession. See Mixter, 441 Md. at 527, 109 A.3d at 68. In Framm, we disbarred an
attorney who had violated Rules 1.1, 1.2, 1.4, 1.5, 1.7, 1.15, 3.3, and 8.4(a), (c) and (d) as
well as former Maryland Rule 16-606.1. 449 Md. at 668, 144 A.3d at 855. In that case,
the attorney failed to properly advise her client of the cost-benefit analysis of pursuing
litigation based upon the client’s limited potential benefits. See id. at 645, 144 A.3d at 842.
Like Respondent in the case before us, in Framm, the attorney failed to abide by her client’s
wishes and took a contrary position to that of her client. Id. at 646, 144 A.3d at 843.
Furthermore, in Framm, the attorney made material misrepresentations to the court about
her client’s mental capacity in a fee-related suit, even when those misrepresentations were
“directly contrary to the position she advanced before the court in the [client’s] divorce and
guardianship cases.” Id. at 657, 144 A.3d at 849. Among the many instances of
misconduct in Framm, we noted that the attorney’s most egregious act was that she “lied
26
to and deceived the court to the detriment of her former client for her own monetary gain.”
Id. at 668, 144 A.3d at 855.
Most recently in Moore, we sanctioned an attorney with indefinite suspension for
violating Rules 1.1, 1.2(a), 1.3, 1.4(b), 1.16(d), 8.4(a) and (d). 451 Md. at 92, 152 A.3d at
661. In Moore, the attorney failed to make a settlement demand in a personal injury matter
upon the client’s request, failed to keep his client informed of the status of her case, as well
as failed to timely inform the client that he was closing his law practice. Id. at 79–82, 152
A.3d at 653–55. Notwithstanding the attorney’s twenty-two years in the practice of law
and his nearly year-long neglect of the client’s personal injury matter, we noted there that
the attorney’s conduct was “isolated to one client, who seemingly ‘fell through the cracks’
during [the attorney’s] transition from the bar to [the position of Administrative Law
Judge].” Id. at 91, 152 A.3d at 660. We concluded that the sanction of disbarment would
be too severe in Moore. Id.
We recognize that, unlike Framm, Respondent’s violations neither represent a
pattern of misconduct, nor involve intentional deceit to the court. Respondent’s conduct
more closely aligns with the circumstances in Moore in that the violations stemmed from
an isolated case. Framm, nevertheless, informs our analysis because Respondent acted to
the detriment of his former client in his dogged attempts to recoup an alleged financial loss.
See Framm, 449 Md. at 668, 144 A.3d at 855. Given the severity of Respondent’s conduct,
this case was a close call between our imposing the sanction of disbarment or indefinite
suspension.
27
Respondent’s violations, particularly of Rules 1.6 and 1.9, seriously undermine his
integrity as a member of this Bar. Respondent has demonstrated not only indifference
towards the attorney discipline process, but an inexplicable absence of serious regard for
his ethical duties to former clients. See Attorney Grievance Comm’n v. Lee, 393 Md. 385,
415, 903 A.2d 360, 378 (2006) (“Respondent presents no evidence of remorse or
appreciation of the serious impropriety of his conduct.”). We are, however, constrained by
the facts before us and our jurisprudence. We conclude that indefinite suspension is the
appropriate sanction.
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 19-709, FOR
WHICH SUM JUDGMENT IS ENTERED
IN FAVOR OF THE ATTORNEY
GRIEVANCE COMMISSION AGAINST
JAMES ALOYSIUS POWERS.
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