Attorney Grievance Commission v. Rand

Attorney Grievance Commission of Maryland v. Charles Stephen Rand, Misc. Docket
AG No. 40, Sept. Term, 2014 Opinion by Battaglia, J.
ATTORNEY DISCIPLINE – SANCTIONS – INDEFINITE SUSPENSION
Indefinite suspension is the appropriate sanction when an attorney fails to keep his client
apprised of the costs of representation and the status of filings, asserts an invalid retaining
lien and fails to comply with requests from Bar Counsel for documents and information.
MLRPC 1.4, 1.5, 1.15(a), 1.16(d), 8.1, 8.4(a), (c) and (d) and Maryland Rule 16-606.1
Circuit Court for Montgomery County,
Maryland
Case No. 30325-M
Argued: September 29, 2015
IN THE COURT OF APPEALS
OF MARYLAND
Misc. Docket AG No. 40
September Term, 2014
ATTORNEY GRIEVANCE
COMMISSION OF MARYLAND
v.
CHARLES STEPHEN RAND
Battaglia
Greene
Adkins
McDonald
Watts
Harrell, Jr., Glenn T.
(Retired, Specially
Assigned),
Cathell, Dale R. (Retired,
Specially Assigned),
JJ.
Opinion by Battaglia, J.
Adkins and McDonald, JJ., dissent.
Filed:
Charles Stephen Rand, Respondent, was admitted to the Bar of this Court on
December 14, 1973. On September 17, 2014, the Attorney Grievance Commission, (“Bar
Counsel”), acting pursuant to Maryland Rule 16-751(a),1 filed a Petition for Disciplinary
or Remedial Action against Rand related to his representation of Nancie Klein, in which
it was alleged that he violated the following Maryland Rules of Professional Conduct
(“Rule”): 1.1 (Competence),2 1.3 (Diligence),3 1.4 (Communication),4 1.5(a) (Fees),5
1
Rule 16-751(a) provides, in relevant part:
(a) Commencement of disciplinary or remedial action. (1) Upon approval
or direction of Commission. Upon approval or direction of the Commission,
Bar Counsel shall file a Petition for Disciplinary or Remedial Action in the
Court of Appeals.
2
Rule 1.1 provides:
A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.
3
Rule 1.3 provides:
A lawyer shall act with reasonable diligence and promptness in
representing a client.
4
Rule 1.4 provides:
(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
(continued . . .)
1.15(a) (Safekeeping Property),6 1.16(d) (Declining or Terminating Representation),7 8.1
(Bar Admission and Disciplinary Matters),8 8.4(a), (c), and (d) (Misconduct),9 as well as
Maryland Rule 16-606.1 (Attorney Trust Account Record-Keeping).10
(. . . continued)
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.
5
Rule 1.5 provides, in relevant part:
(a) A lawyer shall not make an agreement for, charge, or collect an
unreasonable fee or an unreasonable amount for expenses. The factors to be
considered in determining the reasonableness of a fee include the
following:
(1) the time and labor required, the novelty and difficulty of the
questions involved, and the skill requisite to perform the legal
service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the
particular employment will preclude other employment of the
lawyer;
(3) the fee customarily charged in the locality for similar legal
services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the
circumstances;
(6) the nature and length of the professional relationship with the
client;
(7) the experience, reputation, and ability of the lawyer or lawyers
performing the services; and
(8) whether the fee is fixed or contingent.
6
Rule 1.15 provides, in relevant part:
(a) A lawyer shall hold property of clients or third persons that is in a
lawyer's possession in connection with a representation separate from the
lawyer's own property. Funds shall be kept in a separate account maintained
pursuant to Title 16, Chapter 600 of the Maryland Rules, and records shall
(continued . . .)
2
(. . . continued)
be created and maintained in accordance with the Rules in that Chapter.
Other property shall be identified specifically as such and appropriately
safeguarded, and records of its receipt and distribution shall be created and
maintained. Complete records of the account funds and of other property
shall be kept by the lawyer and shall be preserved for a period of at least
five years after the date the record was created.
7
Rule 1.16(d) provides:
(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 relating to the client to the extent
permitted by other law.
8
Rule 8.1 provides:
An applicant for admission or reinstatement to the bar, or a lawyer in
connection with a bar admission application or in connection with a
disciplinary matter, shall not:
(a) knowingly make a false statement of material fact; or
(b) fail to disclose a fact necessary to correct a misapprehension
known by the person to have arisen in the matter, or knowingly fail
to respond to a lawful demand for information from an admissions or
disciplinary authority, except that this Rule does not require
disclosure of information otherwise protected by Rule 1.6.
9
Rule 8.4 provides, in relevant part:
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;
* * *
(continued . . .)
3
(. . . continued)
(c) engage in conduct involving dishonesty, fraud, deceit or
misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice[.]
10
Maryland Rule 16-606.1 states, in relevant part:
(a) Creation of records. The following records shall be created and
maintained for the receipt and disbursement of funds of clients or of third
persons:
* * *
(2) Deposits and disbursements. A record for each account that
chronologically shows all deposits and disbursements, as follows:
(A) for each deposit, a record made at or near the time of the deposit
that shows (i) the date of the deposit, (ii) the amount, (iii) the
identity of the client or third person for whom the funds were
deposited, and (iv) the purpose of the deposit;
(B) for each disbursement, including a disbursement made by
electronic transfer, a record made at or near the time of disbursement
that shows (i) the date of the disbursement, (ii) the amount, (iii) the
payee, (iv) the identity of the client or third person for whom the
disbursement was made (if not the payee), and (v) the purpose of the
disbursement;
(C) for each disbursement made by electronic transfer, a written
memorandum authorizing the transaction and identifying the
attorney responsible for the transaction.
(3) Client matter records. A record for each client matter in which the
attorney receives funds in trust, as follows:
(A) for each attorney trust account transaction, a record that shows
(i) the date of the deposit or disbursement; (ii) the amount of the
deposit or disbursement; (iii) the purpose for which the funds are
intended; (iv) for a disbursement, the payee and the check number or
other payment identification; and (v) the balance of funds remaining
in the account in connection with the matter; and
(B) an identification of the person to whom the unused portion of a
fee or expense deposit is to be returned whenever it is to be returned
to a person other than the client.
(continued . . .)
4
By Order dated September 22, 2014, this Court referred the matter to Judge Gary
E. Bair of the Circuit Court for Montgomery County,11 for a hearing in accordance with
Maryland Rule 16-757(a).12 Rand was served with the Petition for Disciplinary or
(. . . continued)
(4) Record of funds of the attorney. A record that identifies the funds of the
attorney held in each attorney trust account as permitted by Rule 16-607 b.
* * *
(c) Electronic records. Whenever the records required by this Rule are
created or maintained using electronic means, there must be an ability to
print a paper copy of the records upon a reasonable request to do so.
(d) Records to be maintained. Financial institution month-end statements,
any canceled checks or copies of canceled checks provided with a financial
institution month-end statement, duplicate deposit slips or deposit receipts
generated by the financial institution, and records created in accordance
with section (a) of this Rule shall be maintained for a period of at least five
years after the date the record was created.
11
Maryland Rule 16-752 states, in relevant part:
(a) Order. Upon the filing of a Petition for Disciplinary or Remedial Action,
the Court of Appeals may enter an order designating a judge of any circuit
court to hear the action and the clerk responsible for maintaining the record.
The order of designation shall require the judge, after consultation with Bar
Counsel and the attorney, to enter a scheduling order defining the extent of
discovery and setting dates for the completion of discovery, filing of
motions, and hearing.
12
Maryland Rule 16-757 states:
(a) Generally. The hearing of a disciplinary or remedial action is governed
by the rules of evidence and procedure applicable to a court trial in a civil
action tried in a circuit court. Unless extended by the Court of Appeals, the
hearing shall be completed within 120 days after service on the respondent
of the order designating a judge. Before the conclusion of the hearing, the
judge may permit any complainant to testify, subject to cross-examination,
regarding the effect of the alleged misconduct. A respondent attorney may
(continued . . .)
5
Remedial Action, our Order, Petitioner’s First Set of Interrogatories, Petitioner’s First
Request for Production of Documents and the Writ of Summons on October 4, 2014; he
filed a Motion for More Definite Statement on October 23, 2014, which was denied. An
answer to the Petition for Disciplinary or Remedial Action was filed by Rand on
November 13, 2014, followed by a Revival of his Motion for More Definite Statement,
which was denied on January 13, 2015. On December 12, 2014, Bar Counsel filed an
Amended Petition for Disciplinary or Remedial Action in which the allegations that Rand
violated Rules 1.1 and 1.3 were withdrawn.
(. . . continued)
offer, or the judge may inquire regarding, evidence otherwise admissible of
any remedial action undertaken relevant to the allegations. Bar Counsel
may respond to any evidence of remedial action.
(b) Burdens of proof. The petitioner has the burden of proving the
averments of the petition by clear and convincing evidence. A respondent
who asserts an affirmative defense or a matter of mitigation or extenuation
has the burden of proving the defense or matter by a preponderance of the
evidence.
(c) Findings and conclusions. The judge shall prepare and file or dictate
into the record a statement of the judge's findings of fact, including findings
as to any evidence regarding remedial action, and conclusions of law. If
dictated into the record, the statement shall be promptly transcribed. Unless
the time is extended by the Court of Appeals, the written or transcribed
statement shall be filed with the clerk responsible for the record no later
than 45 days after the conclusion of the hearing. The clerk shall mail a copy
of the statement to each party.
(d) Transcript. The petitioner shall cause a transcript of the hearing to be
prepared and included in the record.
(e) Transmittal of record. Unless a different time is ordered by the Court of
Appeals, the clerk shall transmit the record to the Court of Appeals within
15 days after the statement of findings and conclusions is filed.
6
Judge Bair held hearings on January 21 and 22, 2015 during which Bar Counsel
presented testimony from Nancie Klein and her husband, Stephen Klein. Rand testified
on his own behalf.
In addition, both Bar Counsel and Rand submitted substantial documentation,
which was received in evidence, including Rand’s fee agreement with Ms. Klein, various
letters and email correspondence between Ms. Klein and Rand and Rand’s account
ledger, bank statements and IOLTA checks. On February 13, 2015, Bar Counsel filed
Proposed Findings of Fact and Conclusions of Law, and Rand filed a Recommended
Statement of Findings of Fact and Conclusions of Law.
The essence of Ms. Klein’s complaint was that she had retained Rand to assist her
in bringing a claim for age and race discrimination against her supervisor at the public
school where Ms. Klein taught. Rand, after meeting with Ms. Klein and her husband,
entered into a fee arrangement that provided for an hourly rate of $350, later reduced to
$250 an hour, and, in an “evergreen” clause,13 required Ms. Klein to provide a retainer of
13
An “evergreen” clause providing for a retainer contemplates that the retainer is to
remain funded at a certain level, with the debtor replenishing it as needed to maintain the
original value. In re GSB Liquidating Corp., No. 94 B 24672, 1995 WL 521528, at *14
n.13 (Bankr. N.D. Ill. Aug. 21, 1995) (“An ‘evergreen’ retainer mirrors the tree after
which it was named. The debtor is responsible for replenishing the retainer after his
attorney has drawn down or used that retainer for compensation for services rendered.”);
see In re Pan American Hosp. Corp., 312 B.R. 706, 709 (2004) (“The evergreen retainer
is yet another type of special retainer. The evergreen retainer agreement contemplates
that the retainer shall remain intact and that the debtor's professionals' interim
compensation shall be paid from the debtor's operating capital.”).
7
$1,500 which would be replenished by her to maintain a minimum of $1,500, to cover
fees, costs and expenses related to the matter.14
Ms. Klein paid the initial $1,500 as well as an additional $2,000, in two separate
$1,000 payments, when Rand requested replenishment, without his ever having provided
a bill which in any way reflected time spent. During the course of the representation, Ms.
Klein took early retirement from the school because of stress and the mental and physical
symptoms related to the job situation, without having been counseled by Rand about the
possibility of a disability retirement.
Although Ms. Klein and Rand had also worked on drafting an addendum to her
original complaint with the Equal Employment Opportunity Commission (“EEOC”),
detailing specific instances of discrimination in addition to those earlier cited, Rand did
14
The fee agreement contained the following, relevant, provisions:
1. Fees shall be based on time … No substantial work shall be performed
before payment of a deposit (“retainer”) toward fee (refundable if not
earned) of $1,500.00, plus a non-refundable initial consultation fee of
(N/A), payable prior to said consultation. Client understands that
substantial Attorney time input, and therefore fees, must be expended as
and when necessary. Therefore, it is agreed that Client shall pay the
Attorney those monies necessary, on a 30-day, as-billed basis to
maintain the retainer at its original level. …
* * *
5. Statement for services performed and costs advanced are due when
rendered and Client agrees that in the event a statement remains unpaid for
thirty (30) days, the Attorney shall be under no obligation to take any action
on behalf of Client and may take action to withdraw his appearance from
any court action and proof of nonpayment shall represent Client’s consent
thereto.
(emphasis in original)
8
not file the addendum, deciding unilaterally to incorporate it into a later response filed
with the EEOC. Rand did not advise Ms. Klein of his decision regarding the addendum.
Ms. Klein, believing Rand was not giving sufficient attention to her matter,
discharged him and requested both an invoice—having not received a single bill—and a
copy of her file. Rand provided an enigmatic invoice, containing some duplicate entries,
which demanded $11,230.00. Rand refused to provide Ms. Klein a copy of her file, and
asserted an attorney retaining lien.15
After she discharged Rand, Ms. Klein hired new counsel to continue her attempts
at mediation and conciliation with the EEOC and the school system, as she had received a
determination from the EEOC that discrimination had occurred. After she filed a
complaint with the Attorney Grievance Commission on April 15, 2013, Bar Counsel
contacted Rand, and, over a protracted period, attempted to obtain data and documents
15
We have defined attorney retaining liens as follows:
Attorney's liens are categorized as either a retaining lien or a charging lien.
See Ashman v. Schecter, 196 Md. 168, 173-74, 76 A.2d 139, 141-42 (1950)
(noting that a charging lien binds a judgment recovered through the
attorney's efforts, whereas a retaining lien is a general lien, dependent on
possession, that gives an attorney the right to retain all papers, securities
and money belonging to his client which comes into his possession until all
his charges against his client are paid.). Under Maryland common law,
attorneys do not have a charging lien, but a retaining lien is recognized. See
Md. Rule 2-652(a); Tucker v. Dudley, 223 Md. 467, 472, 164 A.2d 891,
895 (1960). The charging lien has only been available in Maryland since
1985, when the General Assembly established a statutory attorney's lien.
See 1985 Md. Laws, ch. 723; Consolidated Construction Servs. v. Simpson,
372 Md. 434, 460-61, 813 A.2d 260, 276 (2002).
Rhoads v. Sommer, 401 Md. 131, 148 n.12, 931 A.2d 508, 518 n.12 (2007).
9
from Rand regarding his representation of Ms. Klein. Those efforts continued until the
morning of the first day of the disciplinary hearing, January 21, 2015.16
I. Judge Bair’s Findings of Fact and Conclusions of Law
Judge Bair issued, on March 6, 2015, Findings of Fact and Conclusions of Law in
which he determined that Rand violated Rules 1.4, 1.5, 1.15(a), 1.16(d), 8.1(a) and (b),
8.4(a), (c) and (d), as well as Maryland Rule 16-606.1. Judge Bair’s Findings of Fact and
Conclusions of Law state: 17
Representation of Ms. Klein
Respondent received his undergraduate education at the University
of North Carolina and his law degree from the University of Baltimore Law
School. He was admitted to the Maryland Bar in December 1973 and is also
licensed to practice law in the District of Columbia and before several
federal courts. After serving three years as a Naval Officer, he worked from
1974 until 1980 as an Assistant County Attorney in Montgomery County.
Since then, he has been in private practice in Rockville as a general civil
trial practitioner. At all times relevant to this case, Respondent operated his
law practice as a professional corporation in the name of McKernonRand,
LLC.
In July 2011, Ms. Nancie Klein contacted Respondent to represent
her in a case alleging discrimination claims against Montgomery County
Public Schools (“MCPS”). Ms. Klein was referred to Respondent by
another MCPS teacher whom Respondent had represented in a common-
law tort matter involving MCPS. Ms. Klein was a psychologist in the
county and had worked for MCPS as a teacher for 33 years. Ms. Klein, a
white woman over 60 years old, was working at Takoma Park Elementary
School, and believed the principal at the school had been engaging in age
and racial discrimination. On July 26, 2011, at the initial meeting, Ms.
16
On the morning of the first day of the disciplinary hearing, January 21, 2015, Rand
provided several bank statements and canceled checks related to the issue of $300 that
was shown as remaining in Ms. Klein’s trust account on the date of his deposition,
November 25, 2014.
17
Internal record citations within the Findings of Fact have been omitted.
10
Klein executed a retainer agreement with Respondent. The agreement
provided that Ms. Klein would pay Respondent at a rate of $350/hour with
an initial retainer of $1,500. After the initial retainer amount, Ms. Klein was
to pay Respondent “those monies necessary, on a 30-day, as billed basis to
maintain the retainer at its original level.”1
______________________________
1
In December 2011, the hourly rate was reduced to $250/hour.
______________________________
At the time of this initial consultation, Respondent had handled
approximately six Equal Employment Opportunity Commission (“EEOC”)
cases.
Ms. and Mr. Klein testified that, at the initial consultation,
Respondent told them that the maximum liability for MCPS was $300,000
and that he expressed optimism that Ms. Klein’s case would be worth an
amount close to $300,000. Respondent denied valuing her case at $300,000,
and testified that his fee agreement states that clients should disregard any
value he places on a case. The retainer agreement states “I acknowledge
that no representation, warranty or guarantee has been made as to what
amount, if any, may be recovered in this case.” Based on a review of all the
evidence, and notwithstanding the provision in the retainer agreement, the
Court does not find Respondent’s testimony credible, and the Court accepts
the testimony of Ms. and Mr. Klein.
On or about August 19, 2011, Ms. Klein filed a complaint with the
EEOC. The narrative of the complaint was prepared by Respondent but was
filed, at Respondent’s suggestion, by Ms. Klein pro se. The EEOC failed to
notify MCPS of the claim until on or about October 20 2011. While the
EEOC case was still pending, the school year had begun and Ms. Klein was
still experiencing discrimination. During the fall of 2011, Ms. Klein and
Respondent were in communication about this continued discrimination.
She repeatedly discussed with him the mental and physical symptoms she
suffered as a result of the discrimination and discussed her plans to retire
early. Respondent recommended that she hold off until the end of the
school year, but that if she could only last until the end of the semester,
they would “carry on from there." On November 30, 2011, Ms. Klein
retired. Respondent testified that Ms. Klein never discussed her plans to
retire prior to November 30, 2011, the date of her retirement. Based on a
review of all the evidence, the Court finds the testimony of Ms. Klein more
credible than that of Respondent and thus, the Court accepts the testimony
of Ms. Klein.
11
In December 2011, Ms. Klein and Respondent began working on an
addendum to be filed to the August EEOC complaint, which would include
the additional discrimination that Ms. Klein faced in the fall of 2011. The
circumstances surrounding the filing of this addendum was a significant
focus of the hearing before the Court. On January 20, 2012, Ms. Klein
emailed the Respondent with certain edits and additions to the addendum.
The email stated “[w]hen it is ready [I] will sign it and let’s get it on its
way.” On January 24, 2012, Ms. Klein emailed Respondent and asked,
“[w]hen do you think [you] will be done with the final copy of the
addendum and letter for the EEOC for my part?” On February 4, 2012,
having not received any response, Ms. Klein again emailed Respondent
stating, “[t]his is a second email about the addendum. I have one with my
numbers and corrections. It does not look like the completed one. Would
you please e-mail me the new addendum and hold off on sending it until I
ok it?" Respondent provided an updated draft to Ms. Klein. On February 7,
2012, Ms. Klein emailed Respondent stating, “I received the letter and
complaint. It looks great. There is one small error. In the letter, middle
paragraph on the second page the number should be 5. Other than that —
great. Please sign my name and send it off.” Respondent never responded to
this February 7th email. On February 23, 2012, having heard nothing from
Respondent, Ms. Klein emailed him and asked: “[j]ust checking in on the
addendum. Did you send it to the EEOC? If so, when was it received? How
do we get the addendum actually attached to the original complaint? I don’t
want it going in as a separate complaint with an additional examiner and a 6
month lag in investigation.” Ms. Klein did not recall whether Respondent
responded to this email. Respondent never provided Ms. Klein a final copy
of “what was filed.” Based on the evidence provided, the Court finds that
Respondent did not, in fact, ever file the addendum as instructed by Ms.
Klein. Furthermore, Respondent did not advise Ms. Klein that the
addendum had not been filed.
On March 28, 2012, the EEOC forwarded a copy of MCPS’s
position statement to Ms. Klein. Ms. Klein and Respondent worked
together to draft a reply. On or about April 6, 2012, Respondent, signing
Ms. Klein’s name, filed a reply to MCPS’s response to the complaint.
Respondent included in the Reply information which he had led Ms. Klein
to believe had been filed, by addendum, in February, and Ms. Klein did not
know that the addendum she approved on February 7, 2012, had not been
filed as of April 6, 2012.
On January 28, 2013, the EEOC issued its determination that Ms.
Klein was harassed because of her age and race and invited the parties to
join in conciliation. On February 6, 2013, Ms. Klein, Mr. Klein, and
12
Respondent met to discuss the conciliation process as well as an
appropriate settlement number. Both Mr. and Ms. Klein testified that, at the
February 6 meeting, they, along with Respondent, agreed that the value of
Ms. Klein’s case met or exceeded the $300,000 cap on MCPS claims.
Respondent testified that he never mentioned the $300,000 cap to the
Kleins. The Court does not find Respondent’s testimony about the
$300,000 figure credible, and the Court accepts the testimony of Ms. and
Mr. Klein.
On March 7, 2013, Ms. Klein terminated Respondent’s services as
her attorney by sending him a letter. The letter stated that she was seeking
other counsel “based on the fact that I believe you are not giving my case
the attention it deserves, and using my case without my approval to benefit
another client” and requested that he “cease and desist using the
information pertaining to my case in any action you are taking on behalf of
your other clients."2
______________________________
2
Ms. Klein believed that Respondent had used the favorable determination
in her case to leverage a case he was handling for another client (who
worked with Ms. Klein) against MCPS and Takoma Park Elementary
School. When Ms. Klein instructed Respondent to stop, he responded that
because her case was a published public opinion he was free to use it.
Respondent testified that this other client was brought to Respondent by
Ms. Klein herself, and in fact he would have meetings with both clients
together. Ms. Klein also testified at this other client’s trial. Respondent’s
actions regarding his handling of the other client’s case was not a subject of
the Amended Petition.
______________________________
She further requested Respondent forward her file and “any other
information pertaining to [her] case to her home.” Respondent emailed a
response on March 11, 2013, stating: “Your accusations of misconduct on
my part are wholly unfounded, as you well know, and poor repayment for
the difficult and painstaking work I performed for you to drive your
improbable case to a favorable result.” Respondent sent a follow-up letter
on March 18, 2013:
Rather to engage in a lengthy explanation of my reaction to
your recent email and letter to me discharging me as your
attorney and threatening me with suggestions of misconduct,
let me simply give you the bottom line, and you may take
whatever action you wish.
13
l. I accept that I am discharged as your attorney, which is
your right. I deny any suggestion that I neglected your case,
particularly so soon after winning it.
2. There has been no violation of your private or confidential
legal matters. Further, while I am amazed that you are now
attempting to tum your back on your friend, fellow teacher
and co-client, your right to attempt to do so is limited. To the
extent that your case is a matter of public record, it may be
used as such, and you have no ability to forbid it. Your
attempt to do so is particularly opprobrious in that your
victory is the product of my achieving the vindication for you
that you sought: it is wholly the result of my efforts on your
behalf. Your lack of gratitude is stunning.
3. Our agreement was that I be paid hourly. While I kept time
during your case, only a portion of it was billed for payment
by you due to the necessity to dedicate many more hours to
achieving victory that I believed should have been billed to a
school teacher who was out of a job and had not yet won (and
whose percentage-chances of winning were low)....
On March 22, 2013, Ms. Klein again requested a copy of her file.
She stated: “I have been advised by my present attorney that I am entitled
to copies of my file if I pay all copying charges. I will do so. I need ASAP
both my signed EEOC charges, your contract and bills, and the March 17,
2012 rebuttal from MCPS. The rest of the file can wait until the following
week. These files are absolutely necessary for me to continue on with the
conciliatory mediation with the EEOC. If you would please e-mail me or
call my husband [] when these documents are copied I would appreciate it.
He will come by your office to pick up the documents and pay for
copying.” Respondent responded to the email, stating: “I disagree with your
new attorney’s analysis, and my retaining lien will remain in effect absent
new facts not yet presented to me.”
On March 28, 2013, Respondent sent an invoice and ledger to Ms.
Klein charging her a total of $11,230. Ms. Klein estimated that she
requested invoices from Respondent eight times during the course of the
representation, and Respondent would say that they should let it ride and he
would send bills. Respondent never gave an estimate of the current attorney
fees, and the first invoice Respondent sent to Ms. Klein was the March 28,
2013 invoice. Respondent testified that Ms. Klein never made any requests
for bills. The Court credits the testimony of Ms. Klein and finds that she did
in fact request copies of her bills, and that the March 28, 2013 invoice was
the first bill sent to her by Respondent.
14
Both Mr. and Ms. Klein stated that they replenished the initial
$1,500 retainer with two checks, both for $1,000, on December 22, 2011
and January 19, 2012. Respondent’s ledger also shows these payments.
Respondent testified that the ledger’s showing that a check had been
deposited in January 2012 was made in error and that there was no deposit
made on January 19, 2012. Based on all the evidence presented, the Court
does not find Respondent’s testimony that the Kleins never made the
second $1,000 payment in January 2012 credible, and accepts the testimony
of Mr. and Ms. Klein. Thus, when Ms. Klein received the March 28, 2013
invoice and ledger, she had already paid Respondent a total of $3,500.
Respondent also sent Ms. Klein an email on March 28, 2013
corresponding with the invoice; the email stated “your payments are not
entirely credited, but I believe them to be approximately $4,000. I will
accept $5,000 in full satisfaction....”
On April 2, 2013, Ms. Klein again requested a copy of her file and a
complete copy of her bill. On April 9, 2013, Ms. Klein informed
Respondent that MCPS was not interested in conciliation and requested
information about the “mediation proposal.” Respondent refused to provide
Ms. Klein with the requested information, explaining, “I am disinclined to
expend time in fielding your latest request.” Respondent never provided
Ms. Klein with copies of his communications with the EEOC or with the
information that the EEOC valued her case at approximately $25,000. On
April 15, 2013, he emailed her stating: “[p]lease advise in the next 24 hours
if you intend to pay my outstanding fee, and if so, when.”
On April 16, 2013, Ms. Klein emailed Respondent noting several
duplications on the invoice. Additionally, the email stated: “you also billed
me $75 on 2/11/2012 for correspondence with the EEOC. I have no
knowledge or a copy of this correspondence- so I will not pay for it. Since
your previous e-mail said you think my payments are approx. $4000 and I
received no itemized bills for over a year I have no way to know if these
charges are [legitimate] or not. I am not paying your bill. You keep
threatening to place a lien on my suit so do what you will.” Respondent
never acknowledged these duplicate charges or provided Ms. Klein with his
correspondence to the EEOC. However, Respondent acknowledged on the
stand and in his Proposed Findings of Facts and Conclusions of Law that
the ledger sent to Ms. Klein had errors and duplicate entries.
On January 3, 2014, Respondent sent a letter to Ms. Klein’s new
attorney, Alan Banov, Esquire, in response to Mr. Banov’s letter requesting
15
that Respondent provide information and related documents regarding any
settlement negotiations with MCPS. Respondent denied Mr. Banov’s
demand and stated that he was imposing a statutory lien on her file in the
amount of $6,605, and that he was “only required to furnish the client with
documents from the file which are necessary for the prosecution of her
claim or defense.” Respondent stated that information and documents
concerning settlement negotiations “can hardly be classified as documents
necessary for the prosecution of Ms. Klein’s claim” because they are
“settlement discussions” which are inadmissible, and this
information/documentation is available from other sources.
Bar Counsel Investigation
On April 15, 2013, Ms. Klein filed a complaint with the Attorney
Grievance Commission. On April 26, 2013, Bar Counsel forwarded a copy
of Ms. Klein’s complaint to Respondent and in an accompanying letter,
requested a written response to the complaint within fifteen days. On May
10, 2013, Respondent sent a letter to Bar Counsel in response to Ms.
Klein’s complaint. That letter included the following statements:
1. “I won her case (including an award of attorney’s fees)...”
2. “Ms. Klein paid $4,000. . .” and
3. “When the EEOC ruled in her favor, it also ruled that I was
entitled to attorneys fees.”
The letter conveys that Respondent believes Ms. Klein’s complaint
arises out of a fee dispute. Although Respondent testified at trial and wrote
in his Proposed Findings of Fact and Conclusions of Law that he was
incorrect when he stated Ms. Klein had paid him $4,000, Respondent was
somewhat unclear as to when in fact he came to the realization that he was
incorrect.
On May 21, 2013, Bar Counsel forwarded a copy of Respondent’s
May 10, 2013 letter to Ms. Klein and requested her written comments. On
May 27, 2013, Ms. Klein provided additional information in a letter. In a
letter dated June 11, 2013, Bar Counsel requested that by June 28, 2013,
Respondent provide comments in reply to Ms. Klein’s letter as well as:
1. A copy of his retainer agreement with Ms. Klein;
2. Copies of all records created and maintained pursuant to
Maryland Rule 16-606.1 for the receipt, maintenance and
disbursement of Ms. Klein’s funds;
3. Copies of all correspondence between himself and Ms.
Klein including all email correspondence; and
16
4. Any and all documentation to support the billing entries in
the undated “Client Ledger” provided to Bar Counsel by Ms.
Klein including but not limited to copies of all
correspondence related to the representation of Ms. Klein,
notes of all telephone conversations or meetings relating to
the representation of Ms. Klein and all filings.
On June 28, 2013, Respondent sent the following letter to Bar
Counsel, reproduced in full:
As you know, your list entails more than everything
concerning the fee in her case (e.g. IOLTA account records,
original time sheets, all email traffic, etc.). I am certain that a
thorough adherence to your list would take six to ten hours of
my time to compile, which, as you no doubt know, is far more
than the balance due from Ms. Klein.
Your request is not reasonable, because it is facially excessive
and has no factual basis in the issues raised by the
Complainant in her correspondence to you regarding the
matter. Further, this matter is patently a fee dispute, and it is
your well-publicized policy not to be involved in fee disputes.
Again, you have made an exception to your policies where I
am involved.
Indicative of the excessiveness and oppressiveness of your
demand is that you do not even allow me the 30 days to
produce documents that are afforded to an actual litigant
seeking Production of Documents under the Rules. And you
are not a litigant; you appear to be a regulatory agency
without enough ‘factual basis’ to initiate a lawsuit were you
in this case a private party, without danger running afoul of
Rule l-341. Further, your demand that this voluminous
documentation be produced in half the time allowed to
litigants in fact requires that I ‘drop everything’ and rush to
comply. In this regard, I only received your letter when I
returned from a week’s vacation on June 17, 2013. I had a
very significant trial for which to prepare on June 24, 2013
(for which I was required to dedicate every available working
hour, including the entire weekend), and the usual array of
remaining and new matters which inevitably a solo
practitioner must address upon his return to work.
17
I am acutely aware of the legally impregnable position your
agency holds: once you commence to investigate or charge a
practitioner (apparently reserved for solos only — never large
firms), there are no counterclaims, or injunctions or even
allowable motions to dismiss or other usual means available
to mitigate the onslaught you visit upon us.
This situation is aggravated by the fact that there is no
realistic ‘Internal Affairs’ division to regulate arbitrary,
capricious, unlawful and/or vindictive conduct by your
agency. Indeed, there is realistically no one to whom to
complain except perhaps the Court of Appeals or the
Governor, neither of which could arguably be thought of as a
‘hands-on’ arbiter of the conduct of your agents’ activities.
And, of course, your power to discipline and/or disbar
attorneys is ever-present: I note that you were not hesitant to
advise me in the last paragraph of your letter that you hold the
power to discipline/disbar me if I fail to respond timely
pursuant to Rule 8.1.
You indeed have the ever-present power to take away the
right to earn a livelihood of a practitioner who has always
invested no less than three years of his/her life in obtaining a
license to practice law, or in my case more than forty. And
my far-too broad experience with you has made it clear that
you are not bashful about threatening practitioners (solos a
specialty), and carrying out those threats regardless of the
validity, vel non, of the charges and the dire consequences
that they bring to the lives of the innocent and/or honest
attorneys—‘that isn’t your problem, you’re just doing your
job’.
You have seen fit to charge me personally with misconduct so
often in the last five years that I have no question that I am
the most-prosecuted practitioner in the history of the legal
profession in the State of Maryland. I hold that dubious
distinction only because your “nuanced” charges have never
been found to be valid; therefore, I have been able to get off
the canvas repeatedly, only to be greeted by more of your
serial Sunday punches.
18
You have seen fit to bring public charges of misconduct
against me twice in these five years to be tried to judges of
the court before which I primarily practice. Dissatisfied with
the “foot faults" each trial judge found, you filed appeals to
Maryland’s highest court, inevitably demanding more of my
professional flesh. In both those proceedings I was found not
to have engaged in misconduct. However, in those two
proceedings, along with several other prosecutions of lesser
reach, you have managed to cost me hundreds of thousands of
dollars, untold clients and have destroyed, most critically, my
reputation before my peers, my bench and the public. In short,
you have dramatically interfered with my right to make a
living as an honest attorney, and be left alone by you.
It is in light of this administrative apparatus and personal
history with you that I have concluded, at my peril, that your
demand for ‘information’ is unreasonable and therefore
invalid. However, in recognition of my duty to respond and to
disclose under Rule 8.1, I will allow you or your investigator
to come to my office, by agreed-upon appointment, to
examine the subject case file and such other items for which
you can demonstrate some articulable ‘probable cause’.
Please do not regard this letter as the opening of a
negotiation: this is my response to you. If you take the
position that this letter does not constitute ‘substantial
compliance,’ please advise so that such may become the grist
of an action for Declaratory Judgment.
On August 26, 2013, Bar Counsel sent a letter to Respondent
advising him that Ms. Klein’s complaint had been docketed for further
investigation and asking “that you reconsider your position and provide me
with the information and documentation I requested in my letter of June 11,
2013 within fifteen (15) days. My investigator, William M. Ramsey, will be
in touch with you in the near future to make arrangements to pick up the
requested documentation if you are unable to deliver it to our office....You
are also advised that the Maryland Rules of Professional Conduct 8.1
provides that a lawyer, in connection with a disciplinary matter, shall not
knowingly fail to respond to a lawful demand for information by a
disciplinary authority.”
On September 9, 2013, Respondent requested an extension of time
to “formulate [his] response.” On September 11, 2013, Bar Counsel granted
19
Respondent’s request for an extension and requested the information and
documentation be provided no later than September 30, 2013. On
September 30, 2013, Respondent requested a second extension, stating that
his schedule had “precluded [his] finalizing a reasonable response.” Bar
Counsel granted Respondent’s request for a second extension on October 8,
2013.
On October 11, 2013, Respondent mailed Bar Counsel a letter
stating that he had “taken the entire file to the printer and it will be here for
pickup by your Investigator from this point forward. If you do not believe
this is an adequate response, please contact me." Sometime around late
October or early November 2013, a representative from Bar Counsel came
and picked up Ms. Klein’s client file; no bank statements had been
produced, but the ledger was included in the file. On May 9, 2014,
Respondent finally provided some bank statements for “months that
showed every transaction on the client ledger that had been made with her
escrow money,” cancelled checks, and deposit slips. Respondent did not
provide all bank records for the entire time Ms. Klein was his client, but
stated that he believed that providing the ledger was sufficient to comply
with Bar Counsel’s request for “all records created and maintained pursuant
to [Maryland Rule 16-606.1].”
On November 25, 2014, Petitioner’s counsel took Respondent’s
deposition. During his deposition, Respondent agreed to provide additional
documentation related to Ms. Klein’s funds; namely, documentation
evidencing whether there remained $300 of Ms. Klein’s funds in trust or
whether the funds had been withdrawn. Besides that information,
Respondent believed he had provided all documents relating to Maryland
Rule 16-606.1 and MLRPC 1.15. On the morning of trial, January 21, 2015,
Respondent provided selected additional bank account statements.
The Conclusions of Law made by Judge Bair were as follows:18
In its Amended Petition for Disciplinary or Remedial Action, Bar
Counsel alleged the following six violations of the Maryland Lawyers’
Rules of Professional Conduct (“MLRPC”) and Attorney Trust Account
Record Keeping: (A) Rule 1.4 Communication; (B) Rule 1.5 Fees; (C) Rule
1.15(a) Safekeeping Property and Maryland Rule 16-606.1 Attorney Trust
Account Record-Keeping; (D) Rule 1.16(d) Declining or Terminating
18
Internal record citations and Maryland Rules, where indicated, in the Conclusions of
Law have been omitted.
20
Representation; (E) Rule 8.1(a) and (b) Bar Admission and Disciplinary
Matters; and (F) Rule 8.4 (a), (c) and (d) Misconduct.3
______________________________
3
In its Amended Petition for Disciplinary or Remedial Action, Petitioner
charged seven separate rule violations, but the Court is combining the
violations of MLRPC Rule 1.15(a) Safekeeping Property and Maryland
Rule 16-606.1 Attorney Trust Account Record-Keeping into one alleged
violation under subpart C, for a total of six separate categories of violations.
______________________________
A. MLRPC Rule 1.4. Communication
[Rule omitted]
Respondent violated MLRPC Rule 1.4(a-b) in three ways. First,
Respondent failed to provide Ms. Klein with periodic invoices about his
attorney fees and he also failed to request replenishment of his retainer. The
retainer agreement signed by Ms. Klein states that she was to pay
Respondent “those monies necessary, on a 30-day, as billed basis to
maintain the retainer at its original level.” As stated supra, the Court credits
the testimony of Mr. and Ms. Klein and found that Ms. Klein requested
invoices between seven and eight times during the course of the
representation. Moreover, at Respondent’s deposition, he testified “Oh, I
don’t think so. Pretty sure she didn’t. I don’t know,” in response to whether
Ms. Klein had requested an invoice. At trial however, Respondent testified
that Ms. Klein never requested a bill from him. The Court found that Ms.
Klein provided two additional payments of $1,000 to Respondent, for a
total payment of $3,500 before Respondent sent her the first invoice billing
her for over $11,000. By failing to provide any monthly statements when
requested and failing to request replenishment as needed, Respondent
violated MLRPC Rule 1.4 Communication. Attorney Grievance Comm'n of
Md. v. Calhoun, 391 Md. 532, 569 (2006) (finding that sending out
monthly statements that simply stated what the client owed without
providing further details was a violation of MLRPC Rule 1.4).
Second, Respondent violated MLRPC Rule 1.4(a)(2) with respect to
his failure to file the addendum to Ms. Klein’s original complaint. In
December 2011, Respondent and Ms. Klein began drafting an addendum to
her original complaint. On February 7, 2012, Ms. Klein approved the final
draft and instructed Respondent to “please sign my name and send [the
addendum] off.” Respondent did not follow Ms. Klein’s instruction and
21
failed to inform her that the addendum had not been filed. On February 23,
2012, Ms. Klein requested information about the addendum from
Respondent. Respondent failed to respond in any manner to Ms. Klein’s
requests for information. While the addendum was eventually incorporated
by Respondent into Ms. Klein’s response to MCPS and filed on or about
April 6, 2012, Respondent never communicated with Ms. Klein that the
addendum had not been filed in February and failed to provide her with the
requested information about the procedure associated with filing the
addendum.
Third, the Court finds the Respondent violated Rule 1.4(b) when he
failed to communicate with Ms. Klein about potential ramifications of her
early retirement in the fall of 2011. Specifically, he failed to advise her
about the option of taking medical retirement or filing a claim for
constructive discharge.
Although it appears that Ms. Klein and Respondent did
communicate frequently during the course of the representation, that does
not negate Respondent’s violations of Rule 1.4 in that he failed to provide
Ms. Klein with invoices, he failed to file a timely addendum, and he failed
to advise Ms. Klein about the ramifications of her retirement or potential
constructive discharge claim.
B. MLRPC Rule 1.5. Fees
[Rule omitted]
The Court finds that Respondent violated MLRPC Rule 1.5(a) when he
failed to provide Ms. Klein invoices and failed to request sufficient
replenishment of his retainer, despite both being required in his retainer
agreement and by repeated requests for invoices from Ms. Klein. MLRPC
Rule 1.5 prohibits lawyers from charging unreasonable fees. The Rule
provides a list of non-exclusive factors to consider when determining the
reasonableness of fees. The Court of Appeals noted that it is not necessary
to prove that the total fee sought was unreasonable in order to find a
violation of the rule. Attorney Grievance Comm'n of Md. v. Green, 441 Md.
80, 92 (2014) (finding that the attorney’s fees were unreasonable and that
the attorney violated MLRPC Rule 1.5 by failing to provide monthly
invoices and failing to request the replenishing retainer).
C. MLRPC Rule 1.15. Safekeeping Property, and Maryland Rule 16-
606.1. Attorney Trust Account Record-Keeping
22
[Rule omitted]
[Rule omitted]
The Court finds that Respondent did not create and maintain records
required by Maryland Rule 16-606.1(a)(2) and (a)(3) and thus, Respondent
is in violation of MLRPC Rule 1.15(a). At Respondent’s deposition, the
following colloquy took place:
Bar Counsel Question: ....we charged in the petition a
recording keeping violation of Rule 16-606.1 and the Rule
1.15, the safekeeping rule that accompanies that. And I just
want to make sure that I have everything that’s related to the
receipt, maintenance, and disbursement of [Ms.] Klein’s
funds as discussed with you of June 11th, 2013, which is
Deposition Exhibit No. 8. And just so that you’re clear, I have
the three bank statements and accompanying documents that
have been marked as Deposition Exhibits No. 9, 10, and 11,
and then I have the three versions of the invoices that we’ve
discussed, the most up to date or the last one being the April
3rd, 2013 invoice.
Respondent Answer: Well, you know, I owe you the answer
on $300 and whether it remains. That you don’t have, clearly.
The other stuff, I think you got. The sequence of events is you
asked for all this stuff. I sent you the billing invoice which
does have all of that. The backup to all of that, as far as I’m
concerned, is prima facie compliance. And then, you know, I
gave you all the backup that I thought was reasonable in
Exhibits 9, 10, and 11. So you know, I thought I gave you
everything.
Additionally, when questioned about the source of his representation to Bar
Counsel that Ms. Klein had paid him $4,000, he stated that the number
came from his “recollection.”
At trial, Respondent testified that his software program, PCLaw,
generates reports which have “all the activity, financial, as well as time
input. . .” for each client. Respondent also represented that the client ledger
from the PCLaw program is “always the same” and that once the entries are
made they cannot change, but the Court notes that when comparing the
ledgers for the same client printed on different days, there was in fact
different information. Moreover, Respondent stated that he did not
incorporate bank statements into Ms. Klein’s file.
23
As discussed supra, Respondent acknowledged he was incorrect in
his initial assertion that the Kleins had paid him $4,000. At trial, the Kleins
testified that they believed they had paid the Respondent a total of $3,500.
The Respondent testified that the Kleins paid him a total of $2,500. Had
Respondent kept more accurate records that included bank statements, he
would not have needed to rely on his incorrect recollection. The Court finds
the Kleins’ testimony to be more credible than the Respondent’s.
Additionally, had the records been properly kept, there would not have
been duplicate charges, or at the very least Respondent would have realized
his errors sooner. By failing to keep complete and accurate records,
Respondent is in violation of Maryland Rule 16-606.1.
D. MLRPC Rule 1.16. Declining or Terminating Representation
[Rule omitted]
“When a client requests his or her file from an attorney at the end of
the representation, MLRPC l.l6(d) requires the attorney to surrender the
portions of the file (or a copy) to which the client is entitled (assuming no
proper charging lien exists)” Attorney Grievance Comm'n of Md. v. Brown,
426 Md. 298, 322 (2012). Maryland Rule 2-652(a) provides that except as
otherwise provided under the Maryland Lawyers’ Rules of Professional
Conduct, “an attorney who has a common-law retaining lien for legal
services rendered to a client may assert the lien by retaining the papers of
the client in possession of the attorney until the attorney’s claim is
satisfied.”
The Court finds Respondent violated MLRPC Rule 1.16(d) when he
failed to provide Ms. Klein with her file upon his termination. While
Respondent asserts that he had a retaining lien on Ms. Klein’s file, the
Court notes that this does not give Respondent an absolute right to retain
Ms. Klein’s file. Even if Respondent had a valid lien, the “mere existence
of a legal right does not entitle a lawyer to stand on that right if ethical
considerations require that he forego it” and the Court “will not
countenance in a disciplinary proceeding such a self-help argument for
vigilante lawyers who decide to take disputes over attorney’s fees into their
own hands.” Attorney Grievance Comm'n of Md. v. Sheridan, 357 Md. 1,
35 (1999) (where lawyer had taken client funds and used them for personal
or professional use) (internal citations omitted). As discussed supra,
Respondent failed to comply with both MLRPC Rule 1.5(a), because he
failed to provide Ms. Klein with invoices or requests to replenish the
retainer, and MLRPC Rule 1.15(a) because Respondent failed to keep
24
proper records in accordance with Maryland Rule 16-606.1. Where
Respondent failed to provide invoices and failed to keep proper billing
records for this client, Respondent could not then assert a retaining lien on
her file based on his questionable billing practices.
Moreover, upon Respondent’s termination, the potential for
mediation or conciliation was pending in Ms. Klein’s case. Thus, Ms. Klein
was entitled to all information that Respondent had received from the
EEOC related, in any way, to the pending conciliation process. An attorney
may be required to turn over such papers, or photocopies thereof, to the
client or successor counsel to enable an ongoing action to go forward. See
Pomerantz v. Schandler, 704 F.2d 681 (2d Cir. 1983); Upgrade Corp. v.
Michigan Carton Co., 410 N.E.2d 159 (Ill. App. Ct. 1980); Frenkel v.
Frenkel, 599 A.2d 595 (N.J. Super. Ct. App. Div. 1991); Rosen v. Rosen,
97 A.D.2d 837 (N.Y. App. Div. 1983); Fleming v. Bernauer, 138 Misc. 2d
267 (N.Y. Sup. Ct. 1987); M.E. v. S.G., 124 Misc. 2d 851 (N.Y. Fam. Ct.
1984); People v. Altvater, 78 Misc. 2d 24 (N.Y. Sup. Ct. 1974). This would
include the complaint Ms. Klein had filed pro se, MCPS’s response, and
her reply, also submitted pro se. Ms. Klein was not in possession of final
drafts of the complaint or reply and did not have a copy of MCPS’s
response when she terminated Respondent’s services.
E. MLRPC Rule 8.1. Bar Admission and Disciplinary Matters
[Rule omitted]
Respondent admitted that he made misrepresentations to Bar
Counsel. He admitted that he misrepresented the amount of money paid to
him. Second, Respondent admitted that it was an “exaggeration” that he
was awarded attorney’s fees by the EEOC. Indeed, he was not awarded
attorney’s fees. Finally, Ms. Klein wrote to Bar Counsel that it was a
“combination of gross exaggeration of the facts and blatant lies” for
Respondent to claim he “won” her case. According to Ms. Klein, she
received a ruling in favor from the EEOC that supported her discrimination
case against the EEOC and the case was ongoing. The Court finds these
misrepresentations by Respondent were material and made knowingly. The
Court therefore concludes that each misrepresentation constitutes a
violation of Rule 8.1(a).
Additionally, Respondent violated MLRPC Rule 8.1(b) when he
knowingly and intentionally failed to respond to Bar Counsel’s requests for
information. The Court notes that “a request for information by Bar
Counsel does not have to come in any particular form in order to trigger the
25
compliance requirements of MRPC 8.1.” Attorney Grievance Comm’n of
Md. v. Khandpur, 421 Md. 1, 12 (2011). Respondent’s response on June 28,
2013, states: “in recognition of my duty to respond and to disclose under
Rule 8.1, I will allow you or your investigator to come to my office, by
agreed-upon appointment, to examine the subject case file and such other
items...” Despite Respondent’s assertion that making the file available to
Bar Counsel was compliance with Rule 8.1(b), the Court disagrees. See
Attorney Grievance Comm'n of Md. v. Tanko, 427 Md. 15, 35-36 (2012)
(overruling Respondent’s exception that he had violated Rule 8.1); Attorney
Grievance Comm'n of Md. v. James, 385 Md. 637, 651-52, 654, 658-59
(2005). Moreover, although Respondent did send letters back to Petitioner,
the letters mostly contained inflammatory accusations against Petitioner
and, as stated supra, did not include any documents. When Petitioner
ultimately picked up Ms. Klein’s file, the file did not contain any of the
bank records required by Rule 16-606.1. See Attorney Grievance Comm'n
of Md. v. Fraidin, 438 Md. 172, 185, 200 (2014). Respondent finally
provided some records at his deposition on November 25, 2014, and then
additional documents the morning of trial, January 21, 2015, long after the
investigatory phase by Bar Counsel had ended.
F. MLRPC Rule 8.4. Misconduct
[Rule omitted]
MLRPC Rule 8.4(a) is subsumed by the other violations of the
Maryland Lawyers’ Rules of Professional Conduct, as found by the Court.
Having concluded that Respondent violated some of these rules, the Court
concludes that Respondent also committed a violation of Rule 8.4(a). See
Attorney Grievance Comm’n of Md. v. Foltz, 411 Md. 359, 411 (2009).
Additionally, the MLRPC Rule violations are also a violation of
Rule 8.4(c). The Court of Appeals has found that dishonesty encompasses
conduct which shows a lack of honesty, probity or integrity of principle, a
lack of fairness and straightforwardness. See Attorney Grievance Comm'n
of Md. v. Thomas, 440 Md. 523, 555 (2014). Thus, “what may not legally
be characterized as an act of fraud, deceit or misrepresentation may still
evince dishonesty.” Moreover, Respondent’s mishandling of Ms. Klein’s
client funds by failing to provide invoices or keep accurate accounting
records, as well as his misrepresentations to bar counsel, were both
prejudicial to the administration of justice under MLRPC 8.4(d). See
Attorney Grievance Comm'n of Md. v. Brigerman, 441 Md. 23, 40 (2014);
Attorney Grievance Comm'n of Md. v. Mungin, 439 Md. 290, 315 (2014).
Finally, Respondent’s failure to comply with his former client’s requests
26
for papers following termination obstructed and delayed her ability to
pursue her claim through new counsel.
Judge Bair also made findings as to mitigating and aggravating factors:
Maryland Rule 16-757(b) provides that at a disciplinary hearing, “[a]
respondent who asserts an affirmative defense or a matter of mitigation or
extenuation has the burden of proving the defense or matter by a
preponderance of the evidence.” At the hearing on January 21 and 22, 2015,
Respondent presented no affirmative defenses or any matters of mitigation
or extenuation.
On January 26, 2015, however, the Respondent filed a request for
judicial notice. He filed a corrected request on January 28, 2015. Petitioner
filed a Response to Defendant’s Request for Judicial Notice on February 3,
2015. In Respondent’s motion, he noted that “whether and how Respondent
answered [Ms. Klein’s] email inquiries concerning the
Addendum....became an issue." Respondent attached docket entries to his
motion that show that during the time of these emails correspondence
“Respondent was fully involved in defending himself against AGC’s
accusations throughout the period in question.” According to Respondent,
“it can be at least understood to some extent why written responses to
Complainant Klein regarding these two inquiries were not made,” and thus,
Respondent requested that the Court take judicial notice of the attached
docket entries.
The Court denied Respondent’s Request for Judicial Notice. With
this motion, Respondent was attempting to enter possible mitigating factors
into evidence after the trial had completed. The Court notes that the trial
was a two-day trial, where Respondent‘s counsel made a closing argument
on January 22, 2015. At no time did Respondent request that he be
permitted to submit additional information or evidence. Moreover, no form
of the word “mitigate” is contained in the transcript across both trial days.
The Court finds that the Respondent has not proven any mitigating or
extenuating circumstances.
The Court of Appeals has identified certain aggravating factors that
the Court considers in attorney discipline matters: (a) prior disciplinary
offenses; (b) dishonest or selfish motive; (c) pattern of misconduct; (d)
multiple offenses; (e) bad faith obstruction of the attorney disciplinary
proceeding by intentionally failing to comply with rules or orders of the
Commission; (t) submission of false evidence, false statements, or other
deceptive practices during the attorney disciplinary proceeding; (g) refusal
27
to acknowledge wrongful nature of conduct; (h) vulnerability of the victim;
(i) substantial experience in the practice of law; (j) indifference to making
restitution; and (k) illegal conduct, including that involving the use of
controlled substances. Attorney Grievance Comm’n of Md. v. Zhang, 440
Md. 128, 171-72 (2014), reconsideration denied (Aug. 27, 2014).
Factor (a), prior disciplinary offenses, is present in this case, to an
extent. Respondent received a reprimand from Bar Counsel in May 2012
relating to his personal bankruptcy filings “in which he included unverified
and inaccurate information, some of which [were] offered under the penalty
of perjury.” Attorney Grievance Comm’n of Md. v. Rand, 429 Md. 674, 724
(2012) (Harrell, J., dissenting). In December, 2012, a petition against
Respondent was dismissed because the Court of Appeals found that there
was not clear and convincing evidence that Respondent had violated
MLRPC Rule 1.4 Communication. Respondent also had an earlier petition
against him dismissed when the Court found Respondent's delay in
returning records to opposing counsel was not prejudicial to the
administration of justice under MLRPC 8.4(d). Attorney Grievance
Comm'n of Md. v. Rand, 411 Md. 83, 95-96 (2009).
The case at issue involves multiple offenses implicating factor (d).
The Respondent engaged in bad faith obstruction of the disciplinary
proceeding by failing to comply with lawful requests for information,
failing to timely comply with lawful requests for information, and making
misrepresentations to Bar Counsel during the course of its investigation
implicating factor (t). Finally, the Respondent has refused to acknowledge
wrongful nature of conduct implicating factor (g) and has substantial
experience in the practice of law implicating factor (i).
II. Standard of Review
We recently again articulated our oft-cited standards for reviewing attorney
disciplinary proceedings in Attorney Grievance v. Hodes, 441 Md. 136, 168, 105 A.3d
533, 552 (2014) as:
This Court has original and complete jurisdiction over attorney discipline
proceedings in Maryland. We conduct an independent review of the record
and we accept the hearing judge's findings of fact unless shown to be
clearly erroneous. Under our independent review of the record, we must
determine whether the findings of the hearing judge are based on clear and
28
convincing evidence. With respect to exceptions, upon our review of the
record, the hearing judge's findings of fact generally will be accepted unless
they are clearly erroneous. A hearing judge's factual finding is not clearly
erroneous if there is any competent material evidence to support it. As to
the hearing judge's conclusions of law, such as whether provisions of the
Maryland Rules of Professional Conduct were violated, our consideration is
de novo.[19]
(internal citation omitted) (internal quotation omitted).
Bar Counsel did not file any exceptions to Judge Bair’s findings of fact or
conclusions of law. Rand filed exceptions both to Judge Bair’s findings of fact and his
conclusions of law, suggesting that disciplinary action was not warranted, that his
conduct did not violate the Maryland Rules of Professional Conduct and that we should
dismiss this case.
III. Rand’s Exceptions to Findings of Fact
We will address Rand’s exceptions to Judge Bair’s findings of facts seriatim.
Rand first excepts to Judge Bair’s finding that he “did not, in fact, ever file the
addendum as instructed by Ms. Klein.” Regarding the filing of the addendum, Judge Bair
found:
In December 2011, Ms. Klein and Respondent began working on an
addendum to be filed to the August EEOC complaint, which would include
the additional discrimination that Ms. Klein faced in the fall of 2011. The
circumstances surrounding the filing of this addendum was a significant
focus of the hearing before the Court. On January 20, 2012, Ms. Klein
emailed the Respondent with certain edits and additions to the addendum.
The email stated “[w]hen it is ready [I] will sign it and let’s get it on its
way.” On January 24, 2012, Ms. Klein emailed Respondent and asked,
19
Rule 16–759(b)(1) provides:
The Court of Appeals shall review de novo the circuit court judge's
conclusions of law.
29
“[w]hen do you think [you] will be done with the final copy of the
addendum and letter for the EEOC for my part?” On February 4, 2012,
having not received any response, Ms. Klein again emailed Respondent
stating, “[t]his is a second email about the addendum. I have one with my
numbers and corrections. It does not look like the completed one. Would
you please e-mail me the new addendum and hold off on sending it until I
ok it?" Respondent provided an updated draft to Ms. Klein. On February 7,
2012, Ms. Klein emailed Respondent stating, “I received the letter and
complaint. It looks great. There is one small error. In the letter, middle
paragraph on the second page the number should be 5. Other than that —
great. Please sign my name and send it off.” Respondent never responded to
this February 7th email. On February 23, 2012, having heard nothing from
Respondent, Ms. Klein emailed him and asked: “[j]ust checking in on the
addendum. Did you send it to the EEOC? If so, when was it received? How
do we get the addendum actually attached to the original complaint? I don’t
want it going in as a separate complaint with an additional examiner and a 6
month lag in investigation.” Ms. Klein did not recall whether Respondent
responded to this email. Respondent never provided Ms. Klein a final copy
of “what was filed.” Based on the evidence provided, the Court finds that
Respondent did not, in fact, ever file the addendum as instructed by Ms.
Klein. Furthermore, Respondent did not advise Ms. Klein that the
addendum had not been filed.
In support of his exception, Rand argues that Ms. Klein did not complain about a lack of
communication with respect to the addendum, “not in her initial complaint, in her
subsequent letter of response to Respondent, or in her testimony.” He further asserts that
Judge Bair’s later acknowledgment that, “Respondent included in the Reply information
which he had led Ms. Klein to believe had been filed, by addendum, in February….”,
evidences that the addendum was in fact filed.
Ms. Klein testified during the hearing that she made several requests both by e-
mail and by letter to Rand requesting information on the status of the addendum and
whether it had been filed, and received no response. She directed Rand in an e-mail
February 7, 2012, to “Please sign my name and send [the addendum] off.” When pressed
30
by Bar Counsel during the hearing about his lack of an independent recollection of how
the addendum was filed, Rand stated “It’s not filed.” Rand did not file the addendum
separately, as Ms. Klein instructed, but, instead, unilaterally incorporated it into a
response sent on April 6, 2012, without discussion with Ms. Klein. Judge Bair’s finding
that Rand did not file the addendum as instructed by Ms. Klein was supported by clear
and convincing evidence, and we overrule Rand’s exception.
Rand next excepts to the finding that he “failed to advise Ms. Klein about the
ramifications of her retirement or potential constructive discharge, prior to November 30,
2011.” Judge Bair found:
During the fall of 2011, Ms. Klein and Respondent were in communication
about this continued discrimination. She repeatedly discussed with him the
mental and physical symptoms she suffered as a result of the discrimination
and discussed her plans to retire early. Respondent recommended that she
hold off until the end of the school year, but that if she could only last until
the end of the semester, they would “carry on from there." On November
30, 2011, Ms. Klein retired. Respondent testified that Ms. Klein never
discussed her plans to retire prior to November 30, 2011, the date of her
retirement.
During the hearing, Ms. Klein testified:
[Bar Counsel]: And did Mr. Rand provide you with any advice about your
retirement?
[Ms. Klein]: Oh, he told me it would be better if I could hold off until the
end of the year, and retire then. And I said, you know, as we discussed, I, I
can’t hold off until the end of the year; I can make a semester, that’s it. And
he said, well, if you have to retire, retire, and we’ll carry on from there.
[Bar Counsel]: Did he give you any advice on how to retire?
[Ms. Klein]: No.
31
[Bar Counsel]: And were there different options available to you as to how
to retire?
[Ms. Klein]: There was a different option, which was medical retirement,
which I, I could have taken but I did not know about it at the time; all I
knew about was standard retirement.
Rand, however, insists that Ms. Klein did not seek advice concerning her retirement or
the option of medical retirement prior to November 30, 2011.
Judge Bair, assessing both the testimony of Ms. Klein and Rand, found Ms.
Klein’s testimony to be more credible regarding Mr. Rand’s discussion with her about her
retirement. We have stated that the hearing judge “is in the best position to assess first
hand a witness’s credibility”, Attorney Grievance v. Sheridan, 357 Md. 1, 17, 741 A.2d
1143, 1152 (1999), and “it is elementary that the judge ‘may elect to pick and choose
which evidence to rely upon.’” Id., quoting Attorney Grievance Comm’n v. Kemp, 303
Md. 664, 675, 496 A.2d 672, 677 (1985). Accordingly, we overrule Rand’s exception.
Rand next excepts to the finding that he “failed to provide Ms. Klein invoices and
failed to request sufficient replenishment of his retainer, despite both being required in
his retainer agreement and by repeated requests for invoices from Ms. Klein.” Judge Bair
found, specifically:
On March 28, 2013, Respondent sent an invoice and ledger to Ms. Klein
charging her a total of $11,230. Ms. Klein estimated that she requested
invoices from Respondent eight times during the course of the
representation, and Respondent would say that they should let it ride and he
would send bills. Respondent never gave an estimate of the current attorney
fees, and the first invoice Respondent sent to Ms. Klein was the March 28,
2013 invoice. Respondent testified that Ms. Klein never made any requests
for bills. The Court credits the testimony of Ms. Klein and finds that she did
32
in fact request copies of her bills, and that the March 28, 2013 invoice was
the first bill sent to her by Respondent.
Both Mr. and Ms. Klein stated that they replenished the initial
$1,500 retainer with two checks, both for $1,000, on December 22, 2011
and January 19, 2012. Respondent’s ledger also shows these payments.
Respondent testified that the ledger’s showing that a check had been
deposited in January 2012 was made in error and that there was no deposit
made on January 19, 2012. Based on all the evidence presented, the Court
does not find Respondent’s testimony that the Kleins never made the
second $1,000 payment in January 2012 credible, and accepts the testimony
of Mr. and Ms. Klein. Thus, when Ms. Klein received the March 28, 2013
invoice and ledger, she had already paid Respondent a total of $3,500.
Ms. Klein testified that she had made requests for bills and invoices from Rand,
both by phone and in person, “maybe seven, eight times.” Rand testified that he did not
send any bills or invoices to Ms. Klein during the course of representation.
Ms. Klein also testified that on two separate occasions Rand requested additional
funds for his retainer, but did not provide an invoice or billing statement at the time of the
request, although the fee agreement between Ms. Klein and Rand stated, in relevant part:
1. Fees shall be based on time …
* * *
Therefore, it is agreed that Client shall pay the Attorney those monies
necessary, on a 30-day, as-billed basis to maintain the retainer at its
original level. It is further understood that four months prior to the trial of
your matter, and from time to time thereafter as circumstances dictate, the
retainer balance will be adjusted to reflect the Attorney’s estimate of full
trial fees, costs and expenses.
* * *
5. Statement for services performed and costs advanced are due when
rendered and Client agrees that in the event a statement remains unpaid for
thirty (30) days, the Attorney shall be under no obligation to take any action
33
on behalf of Client and may take action to withdraw his appearance from
any court action and proof of nonpayment shall represent Client’s consent
thereto.
Judge Bair’s findings were based on clear and convincing evidence and supported by the
record and we, therefore, overrule this exception.
Rand excepts to the finding that “Respondent did not create and maintain records
required by Maryland Rule 16-606.1(a)(2) and (a)(3).” Judge Bair, in relevant part,
found:
At trial, Respondent testified that his software program, PCLaw, generates
reports which have “all the activity, financial, as well as time input. . .” for
each client. Respondent also represented that the client ledger from the
PCLaw program is “always the same” and that once the entries are made
they cannot change, but the Court notes that when comparing the ledgers
for the same client printed on different days, there was in fact different
information. Moreover, Respondent stated that he did not incorporate bank
statements into Ms. Klein’s file.
As discussed supra, Respondent acknowledged he was incorrect in his
initial assertion that the Kleins had paid him $4,000. At trial, the Kleins
testified that they believed they had paid the Respondent a total of $3,500.
The Respondent testified that the Kleins paid him a total of $2,500. Had
Respondent kept more accurate records that included bank statements, he
would not have needed to rely on his incorrect recollection. The Court finds
the Kleins’ testimony to be more credible than the Respondent’s.
Additionally, had the records been properly kept, there would not have
been duplicate charges, or at the very least Respondent would have realized
his errors sooner.
Rand argues that the PCLaw program he used to maintain client ledgers is prima facie
compliant with Rule 16-606.1, that his records “fully account for every cent paid” by Ms.
Klein and that the duplicate entries and late addition of a $300 trust account disbursement
were simply clerical errors. Received in evidence was a ledger for Ms. Klein’s case
34
printed on January 20, 2015 that included entries not appearing on a ledger printed
earlier, on April 3, 2013, which led Judge Bair to find that “when comparing the ledgers
for the same client printed on different days, there was in fact different information.” The
additional entries on the January 20, 2015 ledger detailed the payment of $300 from the
trust account to cover fees, and the resulting zero balance in Ms. Klein’s trust account.
Again, we overrule this exception as the finding was supported by clear and convincing
evidence.
Judge Bair also found that Rand “failed to provide Ms. Klein with a copy of her
file upon his termination”, to which Rand excepts. Rand asserts that he “voluntarily
provided [Ms. Klein] with her Narrative, Addendum, and other documents requested by
her free of charge just prior to her discharging him.” He urges that upon termination he
discussed with Ms. Klein that she had sufficient information to proceed with her claim
against the school system. Judge Bair’s finding, however, was not related to the
sufficiency of the information provided to Ms. Klein by Rand, but was concerned with
whether Rand had supplied his entire file to Ms. Klein.
Ms. Klein had made several requests, both generally and specifically, for her file
and any accompanying documents: on March 7, 2013, Ms. Klein stated in an e-mail to
Rand “Please forward my file and any other information pertaining to my case to my
home address[.]”; this was followed, on March 22, 2013, by an e-mail specifically
requesting her signed EEOC charges, Rand’s contract and bills and the March 17, 2012
rebuttal from the school system.
35
Ms. Klein testified regarding the documents she had in her possession at the time
she terminated Rand’s services, which included “letters that [she had] written to a couple
of people” and “the judgment”. She testified she did not have the school system’s
position statement, her original complaint with the EEOC or any correspondence between
Rand and the EEOC regarding the conciliation process. Rand testified that he had not
provided Ms. Klein with any of his correspondence with the EEOC. We overrule this
exception, as the finding was supported by clear and convincing evidence.
Rand further excepts to the finding that he misrepresented his having “won” Ms.
Klein’s EEOC case and been awarded attorneys’ fees. Judge Bair found:
On April 15, 2013, Ms. Klein filed a complaint with the Attorney
Grievance Commission. On April 26, 2013, Bar Counsel forwarded a copy
of Ms. Klein’s complaint to Respondent and in an accompanying letter,
requested a written response to the complaint within fifteen days. On May
10, 2013, Respondent sent a letter to Bar Counsel in response to Ms.
Klein’s complaint. That letter included the following statements:
1. “I won her case (including an award of attorney’s fees)...”
2. “Ms. Klein paid $4,000. . .” and
3. “When the EEOC ruled in her favor, it also ruled that I was
entitled to attorney’s fees.”
The letter conveys that Respondent believes Ms. Klein’s complaint arises
out of a fee dispute.
* * *
Respondent admitted that he made misrepresentations to Bar Counsel. He
admitted that he misrepresented the amount of money paid to him. Second,
Respondent admitted that it was an “exaggeration” that he was awarded
attorney’s fees by the EEOC. Indeed, he was not awarded attorney’s fees.
In his May 10, 2013 letter to Bar Counsel, Rand stated:
This is another case where the client signed a fee agreement based on a
reduced charging rate (because she was a public school educator), I won her
36
case (including award of attorney’s fees) . . . When the EEOC decided the
case in her favor, it also ruled that I was entitled to my attorneys fees.”
Rand argues that, by securing a determination from the EEOC that Ms. Klein was
discriminated against at her school, he achieved Ms. Klein’s goal and, therefore, “won.”
Further, by responding to Bar Counsel that he had been awarded attorneys’ fees, Rand
asserts that, rather than a misrepresentation, his statement was merely an exaggeration; it
was his expectation that he would receive an award of fees.
The determination by the EEOC, dated January 28, 2013, of harassment because
of age and race does not assure that Rand was entitled to attorneys’ fees and in fact,
makes no mention of any:
Based on this analysis, I have determined that the evidence obtained during
the investigation establishes that [Principal] harassed [Ms. Klein] because
of her age and race, in violation of the ADEA and Title VII. EEOC is
unable to conclude that the information obtained establishes any other
violation of the statutes.
This determination is final. . . . Therefore, I invite the parties to join with
the Commission in reaching a just resolution of this matter.
We overrule this exception and determine that Judge Bair’s finding was based on clear
and convincing evidence.
Rand further excepts to the finding he “failed to respond to Bar Counsel’s requests
for information”, asserting that he, eventually, provided all of the requested information.
Judge Bair found:
On August 26, 2013, Bar Counsel sent a letter to Respondent advising him
that Ms. Klein’s complaint had been docketed for further investigation and
asking “that you reconsider your position and provide me with the
information and documentation I requested in my letter of June 11, 2013
37
within fifteen (15) days. My investigator, William M. Ramsey, will be in
touch with you in the near future to make arrangements to pick up the
requested documentation if you are unable to deliver it to our office....You
are also advised that the Maryland Rules of Professional Conduct 8.1
provides that a lawyer, in connection with a disciplinary matter, shall not
knowingly fail to respond to a lawful demand for information by a
disciplinary authority.”
On September 9, 2013, Respondent requested an extension of time to
“formulate [his] response.” On September 11, 2013, Bar Counsel granted
Respondent’s request for an extension and requested the information and
documentation be provided no later than September 30, 2013. On
September 30, 2013, Respondent requested a second extension, stating that
his schedule had “precluded [his] finalizing a reasonable response.” Bar
Counsel granted Respondent’s request for a second extension on October 8,
2013.
On October 11, 2013, Respondent mailed Bar Counsel a letter stating that
he had “taken the entire file to the printer and it will be here for pickup by
your Investigator from this point forward. If you do not believe this is an
adequate response, please contact me." Sometime around late October or
early November 2013, a representative from Bar Counsel came and picked
up Ms. Klein’s client file; no bank statements had been produced, but the
ledger was included in the file. On May 9, 2014, Respondent finally
provided some bank statements for “months that showed every transaction
on the client ledger that had been made with her escrow money,” cancelled
checks, and deposit slips. Respondent did not provide all bank records for
the entire time Ms. Klein was his client, but stated that he believed that
providing the ledger was sufficient to comply with Bar Counsel’s request
for “all records created and maintained pursuant to [Maryland Rule 16-
606.1].”
On November 25, 2014, Petitioner’s counsel took Respondent’s deposition.
During his deposition, Respondent agreed to provide additional
documentation related to Ms. Klein’s funds; namely, documentation
evidencing whether there remained $300 of Ms. Klein’s funds in trust or
whether the funds had been withdrawn. Besides that information,
Respondent believed he had provided all documents relating to Maryland
Rule 16-606.1 and MLRPC 1.15. On the morning of trial, January 21, 2015,
Respondent provided selected additional bank account statements.
(internal citations omitted).
38
Rand initially replied to Bar Counsel’s request for information, sent on April 26,
2013, on May 10, 2013, but provided no documentation. Bar Counsel, in a second letter
dated June 11, 2013, requested the following specific documentation:
1. A copy of his retainer agreement with Ms. Klein;
2. Copies of all records created and maintained pursuant to Maryland Rule
16-606.1 for the receipt, maintenance and disbursement of Ms. Klein’s
funds;
3. Copies of all correspondence between himself and Ms. Klein including
all email correspondence; and
4. Any and all documentation to support the billing entries in the undated
“Client Ledger” provided to Bar Counsel by Ms. Klein including but not
limited to copies of all correspondence related to the representation of Ms.
Klein, notes of all telephone conversations or meetings relating to the
representation of Ms. Klein and all filings.
On June 28, 2013, Rand replied in a lengthy letter to Bar Counsel, yet provided none of
the requested documentation. Bar Counsel again sought the documentation from Rand on
August 26, 2013, stating, in part, “I ask that you reconsider your position and provide
[Bar Counsel] with the information and documentation requested in [the] letter of June
11, 2013 within fifteen (15) days.” In response to Bar Counsel’s request, Rand asked for,
and was granted, an extension on September 9, 2013 and again on September 30, 2013.
Bar Counsel eventually collected documents from Rand in late October or early
November of 2013, but bank statements were missing. Rand provided some bank
statements on May 9, 2014, and agreed during his deposition on November 25, 2014 to
provide additional documentation, which was received by Bar Counsel on January 21,
2015. Judge Bair’s finding that Rand failed to respond to Bar Counsel’s requests was
supported by clear and convincing evidence, and we overrule this exception.
39
We overrule each of the exceptions raised by Rand as to the findings of fact. All of
Judge Bair’s findings of fact were supported by clear and convincing evidence in the
record.
We now turn to Rand’s various exceptions to Judge Bair’s conclusions of law.
IV. Rand’s Exceptions to Conclusions of Law
Rand also filed exceptions to Judge Bair’s Conclusions of Law in which Judge
Bair determined that Rand violated a number of our Rules of Professional Conduct. We
review the hearing judge’s conclusions of law de novo, addressing each of Rand’s
exceptions. Rule 16-759(b).
The initial exceptions Rand interposes are to Judge Bair’s conclusions that he
violated Rules 1.4(a) and 1.5(a) related to Rand’s failure to provide Ms. Klein with
invoices when he requested replenishment of the “evergreen” retainer as well as by
failing to file the addendum and communicating with Ms. Klein about his decision not to
file it. Rule 1.4(a) provides:
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.
40
Rule 1.5 provides, in relevant part:
(a) A lawyer shall not make an agreement for, charge, or collect an
unreasonable fee or an unreasonable amount for expenses. The factors to be
considered in determining the reasonableness of a fee include the
following:
* * *
(4) the amount involved and the results obtained[.]
Rand argues that he did not violate Rule 1.4(a) or 1.5(a), as he was not required to send
monthly invoices to Ms. Klein and the addendum was incorporated into a response sent
to the EEOC.
The fee agreement between Rand and Ms. Klein included an “evergreen” clause,20
which provided that Rand would request replenishment to the initial level of $1,500, by
having Ms. Klein pay “those monies necessary, on a 30-day, as-billed basis[.]” Rand’s
obligation, under the agreement, was to charge his time spent on Ms. Klein’s matter to
the “evergreen” retainer, and, as needed, request replenishment of the retainer by sending
a statement (invoice) to Ms. Klein.
Judge Bair found that on two occasions Rand requested, and received, $1,000 to
replenish the retainer, but did not provide Ms. Klein with a statement for services, as
20
An “evergreen” retainer has been defined as:
An “evergreen” retainer mirrors the tree after which it was named. The
debtor is responsible for replenishing the retainer after his attorney has
drawn down or used that retainer for compensation for services rendered.
In re GSB Liquidating Corp., No. 94 B 24672, 1995 WL 521528, at *14 n.13 (Bankr.
N.D. Ill. Aug. 21, 1995)
41
necessitated by his retainer agreement. In addition, Judge Bair found that Ms. Klein
requested, several times, that Rand send her an invoice. We recently stated in Attorney
Grievance v. Green, 441 Md. 80, 91-2, 105 A.3d 500, 507-08 (2014), that a failure to
provide invoices, as agreed upon in the attorney’s fee agreement, violated Rules 1.4(a)
and 1.5(a). In the present case, Rand’s failure to provide an invoice both when requested
by Ms. Klein and when he requested replenishment of the retainer, in derogation of the
terms of his fee agreement, violated Rules 1.4(a) and 1.5(a).
As to the second aspect of the violation of Rule 1.4(a), Judge Bair found that Rand
did not file the addendum as instructed in Ms. Klein’s February 7, 2011 e-mail, but
incorporated it into a response filed with the EEOC without ever informing Ms. Klein.
We have held that failure to keep the client informed and failure to respond to client
requests for information violates Rule 1.4(a). Attorney Grievance v. Brown, 426 Md. 298,
321-22, 44 A.3d 344, 358 (2012) (failure to inform clients of discovery sanctions, failure
to notify a client that his claims had been dismissed and failure to respond to clients’
numerous requests about the status of their cases violated Rule 1.4(a)); Attorney
Grievance v. McCulloch, 404 Md. 388, 398-99 946 A.2d 1009, 1015 (2008) (failure to
advise the client of the status of efforts, failure to keep the client informed and failure to
respond to numerous requests about the status of the case violated Rule 1.4(a)).
Therefore, we conclude that Rand also violated Rule 1.4(a) with respect to the addendum
when he did not inform Ms. Klein of his unilateral decision to incorporate the addendum
into a different document.
42
Rand also excepts to Judge Bair’s conclusion that he violated Rule 1.4(b) when he
“failed to communicate with Ms. Klein about potential ramifications of her early
retirement in the fall of 2011.” Rand argues that no evidence of any adverse consequence
to Ms. Klein having taken early retirement was presented at trial and that Ms. Klein did
not discuss with him her retirement before she retired in November 2011. Judge Bair
found, to the contrary, that Ms. Klein discussed her situation with Rand prior to her
retirement in November 2011 and that Rand failed to advise Ms. Klein regarding both her
decision to retire early and the option of a medical retirement and the potential effects of
either on her EEOC complaint.
Rule 1.4(b) states, “A lawyer shall explain a matter to the extent reasonably
necessary to permit the client to make informed decisions regarding the representation.”
We have determined that failure to provide a client with accurate information to aid in
making informed decisions violates Rule 1.4(b). Attorney Grievance v. Narasimhan, 438
Md. 638, 661-62, 92 A.3d 512, 525 (2014) (failure to provide complete and accurate
information and advice to allow client to make an informed decision on employee
immigration violated Rule 1.4(b)). In the present case, Rand at no time advised Ms. Klein
of her option to pursue medical retirement and the impact of that type of retirement on
her EEOC case, and, therefore, violated Rule 1.4(b).
Rand further excepts to Judge Bair’s conclusion that Rand violated Maryland
Rules 16-606.1(a)(2) and (a)(3), and in so doing, violated Rule 1.15(a) when he sent Ms.
Klein an incomprehensible ledger containing duplicate entries that made it impossible to
determine how much Rand had been paid and how much was owed by Ms. Klein.
43
Maryland Rule 16-606.1 governs record-keeping for attorney trust accounts, and
provides, in relevant part:
(a) Creation of Records. The following records shall be created and
maintained for the receipt and disbursement of funds of clients or of third
persons:
* * *
(2) Deposits and Disbursements. A record for each account that
chronologically shows all deposits and disbursements, as follows:
(A) for each deposit, a record made at or near the time of the deposit
that shows (i) the date of the deposit, (ii) the amount, (iii) the
identity of the client or third person for whom the funds were
deposited, and (iv) the purpose of the deposit;
(B) for each disbursement, including a disbursement made by
electronic transfer, a record made at or near the time of disbursement
that shows (i) the date of the disbursement, (ii) the amount, (iii) the
payee, (iv) the identity of the client or third person for whom the
disbursement was made (if not the payee), and (v) the purpose of the
disbursement;
(C) for each disbursement made by electronic transfer, a written
memorandum authorizing the transaction and identifying the
attorney responsible for the transaction.
Maryland Rule 16-606.1 is included under Rule 1.15(a), which provides, in part:
A lawyer shall hold property of clients or third persons that is in a lawyer's
possession in connection with a representation separate from the lawyer's
own property. Funds shall be kept in a separate account maintained
pursuant to Title 16, Chapter 600 of the Maryland Rules, and records shall
be created and maintained in accordance with the Rules in that Chapter. . .
Complete records of the account funds and of other property shall be kept
by the lawyer and shall be preserved for a period of at least five years after
the date the record was created.
(emphasis added).
44
Rand urges that his billing mistakes were simply clerical and that these clerical
errors did not violate Maryland Rule 16-606.1. The factual findings of Judge Bair, which
we have upheld, however, reflect that Rand’s ledgers, reflecting expenses and payments,
were systematically confusing and sometimes duplicative. We have held that the
inadequacy of maintaining records related to client funds constitutes violations of Rules
16-606.1 and 1.15(a). Attorney Grievance v. Harmon, 433 Md. 612, 625, 72 A.3d 555,
563 (2013) (misidentification of the client from whom an attorney had received and
deposited $300, prior to an overdraft, and failure to maintain records, made at the time of
the disbursements and deposits to the trust account—showing the date of the deposit, the
amount deposited, the payee, the identity of the client and the purpose for the
transaction—indicated inadequate record-keeping in violation of Maryland Rule 16-601.1
and Rule 1.15(a)). We, therefore, conclude that Rand violated Rules 16-606.1 and 1.15(a)
by failing to create and maintain adequate client records.
Judge Bair next concluded that Rand violated Rule 1.16(d) when he failed to
provide Ms. Klein with a copy of her file upon termination of his representation. Rule
1.16(d) provides:
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.
(emphasis added).
45
Judge Bair concluded that, by “fail[ing] to provide invoices and [ ] to keep proper
billing records for this client, [Rand] could not then assert a retaining lien on [Ms.
Klein’s] file based on his questionable billing practices.” Additionally, Judge Bair found
that Ms. Klein was entitled to the papers Rand had in his possession, because of the
impending conciliation of her claim at the EEOC. Rand excepts to Judge Bair’s
conclusions and argues that he was justified in asserting a retaining lien as a result of Ms.
Klein’s refusal to pay his fee; it is to the attorney retaining lien that we now turn.
Under our jurisprudence, an attorney possesses the right to assert “a retaining lien
on all papers, securities and money belonging to his client which comes into his
possession in the course of his professional employment.” Ashman v. Schecter, 196 Md.
168, 173, 76 A.2d 139, 141-42 (1950). In Schecter, we discussed the retaining lien as
differentiated from a charging lien:
One is a retaining lien on all papers, securities and money belonging to his
client which come into his possession in the course of his professional
employment. This is a general lien which gives him the right to retain such
things until all his charges against his client are paid. As the name implies,
it is dependent upon possession. It is, generally speaking, a passive lien and
cannot be actively enforced either at law or in equity. The other lien is a
charging lien, which binds a judgment recovered through the attorney's
efforts.
Id. at 173-74, 76 A.2d 139, 141-42 (1950) (internal citations omitted). In 1995, Maryland
Rule 2-652 was adopted, setting forth the rule for enforcement of attorney liens, covering
46
both the common law retaining lien and the statutory charging lien.21 Md. Rule 2-652
(1996 Repl. Vol.).
21
The attorney charging lien was established by the Legislature in 1985, under Section
46 of Article 10. Md. Code (1957, Repl. Vol. 1987). Under a charging lien, the attorney
could attach a lien for unpaid fees and compensation on certain judgments entered in
favor of the client. In 1989, Section 46 of Article 10 was recodified and incorporated into
Section 10-501 of the Business Occupations and Professions Article. Md. Code, Bus.
Occ. & Prof. § 10-501 (1989).
Maryland Rule 2-652, which addresses both the retaining and charging liens, provides:
(a) Retaining lien. Except as otherwise provided by the Maryland Lawyers'
Rules of Professional Conduct, an attorney who has a common-law
retaining lien for legal services rendered to a client may assert the lien by
retaining the papers of the client in the possession of the attorney until the
attorney's claim is satisfied.
(b) Statutory lien. An attorney who has a lien under Code, Business
Occupations and Professions Article, § 10-501, may assert the lien by
serving a written notice by certified mail or personal delivery upon the
client and upon each person against whom the lien is to be enforced. The
notice shall claim the lien, state the attorney's interest in the action,
proceeding, settlement, judgment, or award, and inform the client or other
person to hold any money payable or property passing to the client relating
to the action, proceeding, settlement, judgment, or award.
(c) Adjudication of Rights and Lien Disputes.
(1) When a circuit court action has been filed. If a lien asserted
pursuant to this Rule relates to an action that has been filed in a circuit
court of this State, on motion filed by the attorney, the attorney's
client in the action, or any person who has received a notice pursuant
to section (b) of this Rule, the court shall adjudicate the rights of the
parties in relation to the lien, including the attorney's entitlement to a
lien, any dispute as to the papers subject to a lien under section (a) of
this Rule, and the amount of the attorney's claim.
(2) When no circuit court action has been filed. If a lien is asserted
pursuant to this Rule and a related action has not been filed in a circuit
court of this State, the attorney, the attorney's client, or any person
(continued . . .)
47
A retaining lien permits the attorney to “secure” his claim for unpaid fees through
retention of client property in his possession. See C. Wolfram, Modern Legal Ethics, §
9.6.3, Attorney Liens, 558-59 (1986). The attorney holds the property until the client pays
the balance of the fee owed or possibly provides some other security.
The retaining lien is predicated on “legal services rendered to a client.” Md. Rule
2-652(a) (1996 Repl. Vol.). We noted in Attorney Grievance v. Sheridan, 357 Md. 1, 34,
741 A.2d 1143, 1161 (1999), that, essentially, the client is coerced into paying the fee
charged for the legal services provided, “because of the embarrassment, inconvenience or
worry caused by the attorney’s asserting the lien.”.
One predicate, of course, to the assertion of a retaining lien is actual possession of
client property. Attorney Grievance v. Potter, 380 Md. 128, 163, 844 A.2d 367, 387
(2004) (“A retaining lien depends upon the attorney having possession of the client’s
papers.”); Diamond v. Diamond, 298 Md. 24, 467 A.2d 510 (1983) (attorney possessed
only a draft, not the actual funds, and, therefore, could not assert a lien on the funds);
Campen v. Talbot Bank of Easton, 271 Md. 610, 319 A.2d 125 (1974) (an attorney did
not possess funds held in escrow by his agent and, therefore, did not have a retaining lien
on the funds); Tucker v. Dudley, 223 Md. 467, 164 A.2d 891 (1960) (funds collected and
(. . . continued)
who has received a notice pursuant to section (b) of this Rule may file
a complaint with a circuit court to adjudicate the rights of the parties
in relation to the lien, including the attorney's entitlement to a lien,
any dispute as to the papers subject to a lien under section (a) of this
Rule, and the amount of the attorney's claim.
Md. Rule 2-652 (2015 Repl. Vol.)
48
held by bank were not reduced to possession by attorney, and no attorney lien was held);
Schecter, 196 Md. 168, 76 A.2d 139 (1950) (no attorney retaining lien to secure fees
exists on real property).
The attorney also must have performed services for the client, for which the
attorney was entitled to recompense, in order to validly assert the retaining lien. See
Attorney Grievance Comm’n v. McIntire, 286 Md. 87, 405 A.2d 273 (1979) (no retaining
lien where “actions were not predicated on any application of principles of law governing
a quantum meruit recovery and justifying the assertion of a lawyer’s retaining lien on
check proceeds”). Important in the instant case and to the validity of the retaining lien
Rand asserted on Ms. Klein’s papers is whether the fee that Rand asserted of $11,230
bore a discernible reasonable relationship to the services that he performed and was in
compliance with the fee agreement with Ms. Klein.
In Matter of Tillman, 462 S.E.2d 283 (S.C. 1995), the client hired Tillman to
represent her following an automobile accident. Id. at 284. They signed a retainer
agreement providing for a contingent fee or, in the event Tillman was discharged prior to
a settlement or verdict, an hourly rate of $105. Id. The client discharged Tillman prior to
a resolution of the case and requested her file. Id. Tillman refused to turn over the file and
demanded payment of $2,400. Id. His time record, however, indicated he had only spent
5.6 hours on the matter. Id. The client disputed the fee charged and hired new counsel,
although Tillman continued working on the file after termination, sending a demand letter
to the client’s insurance carrier, and refused, among other things, to turn over the client
49
file. Id. The Supreme Court of South Carolina, in reviewing whether the attorney could
assert the retaining lien, stated:
Further, respondent cannot meet his burden of showing the circumstances
justified assertion of the common law retaining lien here. In order to
establish the right to the lien, he must show, among other things, that the
client “deliberately refus[ed] to pay a fee [that was] clearly agreed upon and
is due.”
Id. at 285 (alteration original). The Court further determined that the attorney could not
“show even a good faith basis for asserting a retaining lien”. Id. at 286.
An attorney, at the time he asserts a retaining lien, must inform the client of the
liquidated amount of unpaid fees and expenses. Reasonably clear and understandable
substantiation of how the attorney arrived at those liquidated amounts must also be
offered. In reaching this conclusion, we do not say that any dispute over unpaid fees or
expenses initiated by the client vitiates a retaining lien, or that an honest mistake in
calculation obviates the lien.
In the instant case, Rand asserted in his e-mail dated March 28, 2013 that he was
entitled to a fee of $11,230 and submitted confusing and duplicative ledger entries to Ms.
Klein as the basis for his fee. Rand had not complied with the tenets of his own fee
agreement prior to asserting the retaining lien when he failed to submit invoices upon
replenishment, so that not only was the fee agreement breached but also Ms. Klein had no
idea what she may have owed justifiably for services rendered. As a result, Rand was not
entitled to assert a retaining lien for the then-claimed balance of his asserted fee.
Rand also argues, however, even were his retaining lien to lack validity, that he
did not violate Rule 1.16(d) by failing to give Ms. Klein her file, because Ms. Klein
50
already had the Narrative and Addendum and could obtain other documents from the
EEOC or the school system. Judge Bair found that Ms. Klein was entitled to the
documents in Rand’s possession, because of the impending EEOC conciliation process;
we agree. We, therefore, overrule Rand’s exception and conclude that Rand violated Rule
1.16(d) when he refused to provide Ms. Klein with her file.
Rand further excepts to Judge Bair’s conclusion that Rand violated Rules 8.1(a)
and (b) when he knowingly made misrepresentations to Bar Counsel about his having
“won” Ms. Klein’s case and an award of attorneys’ fees and “knowingly and
intentionally” failed to respond to requests for information. Rule 8.1 provides:
An applicant for admission or reinstatement to the bar, or a lawyer in
connection with a bar admission application or in connection with a
disciplinary matter, shall not:
(a) knowingly make a false statement of material fact; or
(b) fail to disclose a fact necessary to correct a misapprehension
known by the person to have arisen in the matter, or knowingly fail
to respond to a lawful demand for information from an admissions or
disciplinary authority, except that this Rule does not require
disclosure of information otherwise protected by Rule 1.6.
Rand asserts that his statements that “I won her case (including an award of attorney’s
fees)” and “When the EEOC ruled in her favor, it also ruled that I was entitled to
attorneys fees” in his May 10, 2013 letter to Bar Counsel were not material with respect
to his claim for fees. He further argues that his letter of June 28, 2013 and other
correspondence with Bar Counsel simply set out initial conditions and requested
extensions. On June 28, 2013, Rand wrote Bar Counsel, stating that:
51
It is in light of this administrative apparatus and personal history with you
that I have concluded, at my peril, that your demand for “information” is
unreasonable and therefore invalid. However, in recognition of my duty to
respond and to disclose under Rule 8.1, I will allow you or your
investigator to come to my office, by agreed-upon appointment, to examine
the subject case file and such other items for which you can demonstrate
some articulable “probable cause”.
We upheld Judge Bair’s finding that Rand misrepresented his having “won” Ms.
Klein’s case, when, in fact, the EEOC had only determined that she had suffered
discrimination. The EEOC, in its determination, recommended conciliation between the
parties and, in fact, the case was ongoing at the time Ms. Klein terminated Rand’s
representation.
Judge Bair also found that Rand had misrepresented to Bar Counsel his being
awarded attorneys’ fees based on the EEOC’s determination that Ms. Klein had
experienced discrimination. The determination that Ms. Klein had suffered harassment
did not guarantee an award of attorneys’ fees, and no mention of fees was made by the
EEOC.
Finally, Rand failed to provide documents in his June 28, 2013 response to Bar
Counsel, and, after receiving the two extensions, produced an incomplete file. Judge Bair
found that none of the specified documents requested by Bar Counsel in the May 10,
2013 letter to Rand was contained in his response on June 28, 2013, prompting Bar
Counsel to again request the information on August 26, 2013. Rather than provide the
requested documents, Rand sought two extensions. Judge Bair further found that when
Rand did provide documents for Bar Counsel to pick up in late October or early
52
November of 2013, the documentation was incomplete. We upheld Judge Bair’s finding
that Rand failed to respond to Bar Counsel’s requests for information.
We have stated that, “[a] Respondent has an obligation to provide Bar Counsel
with any relevant material requested in the course of an investigation.” Attorney
Grievance v. Khandpur, 421 Md. 1, 12, 25 A.3d 165, 172 (2011), quoting Attorney
Grievance v. Obi, 393 Md. 643, 654, 904 A.2d 422, 428 (2006). “A request for
information by Bar Counsel does not have to come in any particular form in order to
trigger the compliance requirements of MRPC 8.1.” Id. at 12, 25 A.3d at 172 (where Bar
Counsel twice asked for the attorney’s IOLTA, and receipt of neither the documents nor a
satisfactory explanation for their absence, presented clear and convincing evidence the
attorney violated Rule 8.1(b)). A refusal to timely respond to a request from Bar Counsel
for information violates Rule 8.1(b). Harmon, 433 Md. at 628, 72 A.3d at 564-65
(“Although we acknowledge that Harmon did, at times, make some effort to respond to
Bar Counsel’s requests, his haphazard and incomplete cooperation, as evidenced by his
letters dated August 22, September 22 (although not received by Bar Counsel), and
February 5, does not justify his failure to provide the records requested by Bar Counsel or
respond to Bar Counsel’s other correspondence.”); Attorney Grievance v. Tanko, 427 Md.
15, 35, 45 A.3d 281, 293 (2012) (refusal to provide Bar Counsel with the client’s file,
despite repeated requests and receipt of approval from the client, and waiting until the
day of the hearing to turn over the client file violated Rule 8.1(b)). We conclude that
Rand violated Rules 8.1(a) and (b), and overrule his exception.
53
Finally, Rand excepts to Judge Bair’s conclusion that Rand violated Rules 8.4(a),
(c) and (d) when he violated others of the Maryland Rules of Professional Conduct,
mishandled Ms. Klein’s funds by failing to provide invoices and keep accurate billing
records and misrepresented information to Bar Counsel. Rule 8.4 provides, in relevant
part:
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;
* * *
(c) engage in conduct involving dishonesty, fraud, deceit or
misrepresentation;
(d) engage in conduct that is prejudicial to the administration of
justice[.]
Rand argues, as he did earlier, that he was not required to provide invoices, that he kept
accurate financial records and that he merely “exaggerated”, but did not misrepresent,
information to Bar Counsel. Each of these exceptions has been overruled.
We have previously held that violations of other rules under the Maryland Rules
of Professional Conduct constitute a violation of Rule 8.4(a). Attorney Grievance v. Foltz,
411 Md. 359, 411, 983 A.2d 434, 465 (2009) (violations of Rules 1.15, 8.4(c) and (d) and
Maryland Rule 16-607 violated Rule 8.4(a)). We already have concluded that Rand
violated Rules 1.4, 1.5, 1.15(a), 1.16(d), 8.1(a) and (b) and Rule 16-606.1, and also
conclude that by so doing he violated Rule 8.4(a).
54
Rand, in arguing that he did not misrepresent information to Bar Counsel, excepts
to the conclusion by Judge Bair that he violated Rule 8.4(c). Judge Bair determined that
Rand violated 8.4(c), because he failed to keep Ms. Klein informed as to the status of the
addendum as well as his services provided and the cost thereof, in addition to Rand’s
misrepresentations to Bar Counsel of his having “won” Ms. Klein’s case and his having
been awarded attorneys’ fees.
Rule 8.4(c) is violated by making misrepresentations to the client, which includes
the concealment of material information from the client. Brown, 426 Md. at 324, 44 A.3d
at 359-60 (misrepresenting the status of the case as pending and concealing dismissal of a
claim from the client); see Attorney Grievance v. Hamilton, 444 Md. 163, 193, 118 A.3d
958, 975 (2015) (misrepresenting the filing of papers in circuit court and failure to
maintain the required financial records relating to the fee violated Rule 8.4(c)). These
misrepresentations need not be intentional. Attorney Grievance v. Bleecker, 414 Md. 147,
169, 994 A.2d 928, 941 (2010); Attorney Grievance v. Harris, 403 Md. 142, 939 A.2d
732 (2008). In the present case, Rand failed to inform Ms. Klein that the addendum was
not filed in February, or that he had unilaterally incorporated the addendum into another
document. Rand also misrepresented to Bar Counsel, and Ms. Klein, that he “won” her
case and was awarded attorney fees. We conclude, therefore, that Rand violated Rule
8.4(c).
Rand excepts to Judge Bair’s conclusion that he violated Rule 8.4(d) when he
failed to provide an invoice to Ms. Klein, failed to keep accurate records, made
misrepresentations to Bar Counsel and asserted an improper retaining lien. We have held,
55
however, that “[c]onduct which is likely to impair public confidence in the profession,
impact the image of the legal profession and engender disrespect for the court is conduct
prejudicial to the administration of justice.” Attorney Grievance v. Agbaje, 438 Md. 695,
717, 93 A.3d 262, 274 (2014). We have also held that failure to provide information in a
timely manner to Bar Counsel is conduct prejudicial to the administration of justice.
Attorney Grievance v. Brigerman, 441 Md. 23, 40, 105 A.3d 467, 477 (2014) (failure to
timely respond to multiple letters from Bar Counsel requesting information); Attorney
Grievance v. Fox, 417 Md. 504, 538, 11 A.3d 762, 782 (2010) (failure to timely respond
to Bar Counsel).
Rand violated Rule 8.4(d) when he asserted an invalid retaining lien and failed to
keep records in accordance with Maryland Rule 16-606.1. He also certainly violated Rule
8.4(d), because he misrepresented to Bar Counsel both his having “won” Ms. Klein’s
case and his having been awarded attorneys’ fees.
V. Sanction
Rand offered no mitigation during the disciplinary hearing on January 21 and 22,
2015, and Judge Bair found none. The Commission recommends that we indefinitely
suspend Rand from the practice of law. Rand recommends that we dismiss the case,
which we will not do.
We have previously considered various aggravating factors found in Standard 9.22
of the American Bar Association Standards for Imposing Lawyer Sanctions when
imposing discipline; the factors are:
(a) prior disciplinary offenses;
56
(b) dishonest or selfish motive;
(c) a pattern of misconduct;
(d) multiple offenses;
(e) bad faith obstruction of the disciplinary proceeding by intentionally
failing to comply with rules or orders of the disciplinary agency;
(f) submission of false evidence, false statements, or other deceptive
practices during the disciplinary process;
(g) refusal to acknowledge wrongful nature of conduct;
(h) vulnerability of victim;
(i) substantial experience in the practice of law;
(j) indifference to making restitution;
(k) illegal conduct, including that involving the use of controlled
substances.
Standard 9.22 of the American Bar Association Standards for Imposing Lawyer
Sanctions (1992); see Hodes, 441 Md. at 206, 105 A.3d at 574–75 (2014). Judge Bair
found several of these factors relevant to the present case, those being: (a) prior
disciplinary offenses, (d) multiple offenses, (f) submission of false evidence, false
statements, or other deceptive practices during the disciplinary process, (g) refusal to
acknowledge wrongful nature of conduct and (i) substantial experience in the practice of
law.
Rand excepts to Judge Bair’s finding that he had prior disciplinary offenses,
submitted false statements and refused to acknowledge the wrongful nature of his
conduct, which we address in turn. Factor (a) concerns prior disciplinary offenses. Rand
excepts to Judge Bair’s finding that “Respondent received a reprimand from Bar Counsel
in May 2012 relating to his personal bankruptcy filings ‘in which he included unverified
and inaccurate information, some of which were offered under the penalty of perjury.’”
We conclude that Judge Bair’s finding that factor (a) is implicated was supported by clear
and convincing evidence.
57
Factor (d), “multiple offenses”, is implicated in the present case, where Rand
violated Rules 1.4, 1.5(a), 1.15(a), 1.16(d), 8.1(a) and (b), 8.4(a), (c) and (d) and 16-
606.1. See Hodes, 441 Md. at 207-08, 105 A.3d at 575 (violations of Rules 1.7, 1.15(d),
8.1(a), 8.4(a), (c) and (d) implicated factor (d)); Attorney Grievance v. Bleecker, 414 Md.
147, 177-78, 994 A.2d 928, 946 (2010) (the violation of multiple disciplinary rules
implicated aggravating factor (d)). Rand committed these multiple offenses when he:
failed to comply with his own fee agreement by not providing invoices to Ms. Klein
when he requested replenishment of the retainer; failed to inform Ms. Klein that he did
not file the addendum, but rather unilaterally decided to incorporate it in another
document; failed to adequately maintain client records; and misrepresented to Bar
Counsel that he “won” Ms. Klein’s EEOC case and was awarded attorneys’ fees.
Rand excepts to factor (f) “false statements”, asserting once again that he did not
make misrepresentations to Bar Counsel. We have overruled this exception because Rand
did misrepresent to Bar Counsel his having “won” Ms. Klein’s case and also having been
awarded attorneys’ fees. Rand’s having provided false statements to Bar Counsel
implicates factor (f). Hodes, 441 Md. at 208, 105 A.3d at 575; Attorney Grievance v.
Dominguez, 427 Md. 308, 327, 47 A.3d 975, 985 (2012).
Finally, Rand excepts to the application of factor (g), “refusal to acknowledge
wrongful nature of conduct”. See Attorney Grievance v. Mixter, 441 Md. 416, 530, 109
A.3d 1, 70 (2015) (“Out of Mixter's one-hundred and six pages of exceptions, he only
asserts, in one sentence, that he is ‘sincerely remorseful’, without elaboration.”); Hodes,
441 Md. at 208, 105 A.3d at 576 (refusing to acknowledge any wrongdoing). Rand,
58
however, has thus far refused to acknowledge any wrongdoing, instead arguing that he
simply made “clerical errors”, was not required to provide Ms. Klein with any invoices
and attempted only to “set conditions” on Bar Counsel’s inquiries for documentation
rather than refused to comply. We overrule this exception.
In the present case, we shall impose a sanction of indefinite suspension. We do so
in reliance on our previous cases in which similar rules violations were presented and
upon the aggravators found. Attorney Grievance v. Green, 441 Md. 80, 102, 105 A.3d
500, 513-14 (2014); Attorney Grievance v. Harrington, 367 Md. 36, 51, 785 A.2d 1260,
1268-69 (2001).
In Green, 441 Md. 80, 105 A.3d 500 (2014), Green, after receiving an initial
$3,500 retainer deposit, failed to send his client any invoices detailing his services,
despite being required to do so under his retainer agreement. Although the client made
numerous requests for invoices from Green, he provided her no invoice until a “pre-bill
worksheet” was sent on August 11, 2011, indicating a total fee of $11,345.98. When the
client sent a letter to Green on August 19, 2011, disputing the fee and noting Green’s
failure to provide any invoice, Green initially declined to respond. On May 29, 2012,
Green did respond; however, he simply disagreed with the client’s concerns, provided no
support for his fee and demanded payment of the outstanding fee balance. After the client
filed a complaint on June 4, 2012 with the Attorney Grievance Commission, Bar Counsel
sent Green several letters requesting his response to the complaint.
We concluded that Green violated Rules 1.4(a)(2) and (a)(3), 1.5(a), 1.15(a) and
(d), 8.1(b) and 8.4(a) and (d) and held that an indefinite suspension was appropriate,
59
“because there [was] nothing in the record plumbing the reasons for Green’s misconduct
or the likelihood that recidivism is not a concern, due to the multiple refusals to cooperate
with Bar Counsel[.]” 441 Md. at 102, 105 A.3d at 513-14.
In Harrington, 367 Md. at 47-8, 785 A.2d at 1266-67, the attorney failed on
several occasions to respond to client requests for information, terminated his
representation without taking the required steps to protect the interests of the client and
disregarded numerous requests for information from Bar Counsel. We held that, because
he had violated Rules 1.3, 1.4(a) and (b), 1.16(d), 8.1(b) and 8.4(c) and (d), an indefinite
suspension was warranted. Id. at 51, 785 A.2d at 1268-69.
Respondent, Charles Stephen Rand, violated Rules 1.4, 1.5(a), 1.15(a), 1.16(d),
8.1(a) and (b), 8.4(a), (c) and (d) and Maryland Rule 16-606.1 and aggravating factors
apply. We determine that the appropriate sanction in the present case is an indefinite
suspension.
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 CHARLES
STEPHEN RAND.
60
Circuit Court for Montgomery County
Case No.: 30325-M
Argued: September 29, 2015
IN THE COURT OF APPEALS
OF MARYLAND
Misc. Docket AG No. 40
September Term, 2014
ATTORNEY GRIEVANCE
COMMISSION OF MARYLAND
v.
CHARLES STEPHEN RAND
Battaglia
Greene
Adkins
McDonald
Watts
Harrell, Glenn T., Jr. (Retired,
Specially Assigned)
Cathell, Dale R. (Retired,
Specially Assigned),
JJ.
Dissenting Opinion by Adkins, J., which
McDonald, J., joins.
Filed: December 22, 2015
Most respectfully, I dissent from the Majority opinion for the reasons set forth
below.
I. Billing Practices
The Majority uses overly broad strokes in addressing a lawyer’s ethical obligations
regarding the timing of bills. We should apply a more nuanced, contextual approach to
this aspect of private law practice. The Majority says:
Judge Bair found that on two occasions Rand requested,
and received, $1,000 to replenish the retainer, but did not
provide Ms. Klein with a statement for services, as necessitated
by his retainer agreement. In addition, Judge Bair found that
Ms. Klein requested, several times, that Rand send her an
invoice. We recently stated in Attorney Grievance
Commission v. Green, 441 Md. 80, 91–92, 105 A.3d 500, 507–
08 (2014), that a failure to provide invoices, as agreed upon in
the attorney’s fee agreement, violated Rules 1.4(a) and 1.5(a).
In the present case, Rand’s failure to provide an invoice both
when requested by Ms. Klein and when he requested
replenishment of the retainer, in derogation of the terms of
his fee agreement, violated Rules 1.4(a) and 1.5(a).
Maj. Slip Op. at 41–42 (emphasis added). I agree that Respondent violated Maryland Rules
of Professional Conduct (“Rules”) 1.4(a) and 1.5(a) when he delayed for a year sending his
client a bill, especially since she requested one multiple times. But I am concerned about
implications of the Majority’s broad-stroke language about the obligation to bill. Lawyers
have an obligation to send reasonable bills. See Rule 1.5(a) (“A lawyer shall not make an
agreement for, charge, or collect an unreasonable fee . . . .”). When working on an hourly
basis, this means a lawyer must take the time to assess whether the hours expended were
reasonable before sending a bill. Thus, generating the bill is not simply pressing a button
on a computer or cell phone. Time records are easily obtainable, but the decision as to how
much is reasonable to bill can require careful study of those records.
There are times when the press of substantive work will prevent a lawyer from
taking the time to generate a bill. For a lawyer who does trial work, this is especially
difficult—trying a case (including preparation) is so intense, all-consuming, and time-
sensitive that it demands a lawyer’s full attention. In finding a violation of Rules 1.4(a)
and 1.5(a), in part for failing to provide an invoice “when requested,” Maj. Slip Op. at 41–
42, the Majority sends the following signal: whenever requested by a client, lawyers must
drop the substance and pressing work they are doing and immediately assess how much of
the hours billed to a file should actually be included on an invoice. Indeed, the Majority’s
opinion can be construed to mean that a lawyer must do this even if the client is
unreasonable in the number and timing of her requests.
This is a misplaced priority and unfair to our profession. Society is fortunate that
there are conscientious lawyers who care deeply about pursuing the best interests of their
clients. If we tell those lawyers that they can be branded as unethical because they do not
“promptly” send bills to their clients, or ask for more money to go into their “evergreen”
accounts, we signal that lawyers should focus on money rather than pursuing their clients’
goals. Not all lawyers send monthly bills, and this can be perfectly ethical.
It is entirely too easy for us who do not practice to sit here and pronounce that
lawyers just must do it all—and do it on time—or they will be disciplined. Perhaps doing
so is, realistically, much harder than we think it is. All in all, we should act with restraint
when imposing discipline for a failure to send a bill promptly on demand or even a monthly
2
bill. Each case should be evaluated based on the reasonable expectations of the lawyer and
client, considering the fee agreement, and other circumstances of the representation.
II. Sanction
The Majority has imposed our second-most severe sanction in a case arising out of
one matter, in which Respondent was neither dishonest with his client (or the Court), nor
incompetent. He did not abandon his client. Indeed, he accomplished something
meaningful—securing a favorable result in an EEOC proceeding. He did not mishandle
funds in his trust account.
The hearing judge found that Respondent “did communicate frequently [with his
client] during the course of the representation,” but failed to communicate his decision not
to file an addendum to the complaint (relating to events happening after the filing of the
complaint) that he and his client had worked on together. See Maj. Slip Op. at 21–22
(setting forth the judge’s conclusions of law regarding Rule 1.4). Respondent, however,
included the new material in a later responsive filing. Bar Counsel made no showing that
this prejudiced the client’s case with the EEOC. I cannot see this as a significant failure
when the information the client sought to convey in the Addendum was fully set forth in
the responsive pleading. What’s more, Respondent’s action did not cause any evident harm
to the client—indeed, she prevailed with the EEOC.
As I indicated, Respondent violated Rule 1.4 when, despite his client’s requests, he
refrained from sending a bill for an entire year. There was no finding, however, that his
fees were excessive. Respondent was partially but not fully cooperative with Bar Counsel,
a violation of Rule 8.1(b), but we should not ignore that, in two earlier disciplinary cases,
3
Bar Counsel’s charges against Respondent were ultimately dismissed. This may explain
Respondent’s aggressiveness in defending himself against these charges—improperly
telling Bar Counsel that the favorable EEOC decision included an award of attorney’s fees.
Moreover, when his client fired him, his assertion that he had the right to retain his files
pertaining to the EEOC claim was facially correct under Md. Code (1989, 2010 Repl. Vol.),
§ 10-501 of the Business Occupations and Professions Article, and he did not have the
benefit of the Majority’s after-the-fact determination that he forfeited that right.
The numerical sum of violations does not always reflect the seriousness of the
misconduct. These violations, all arising from a single representation in which the first
stage of his client’s discrimination claim was accomplished, do not add up to an indefinite
suspension in my book. A 60-day flat suspension would be more appropriate.
Judge McDonald has authorized me to state that he joins in the views expressed in
this dissenting opinion.
4