Argued: September 29, 2015.
[Copyrighted Material Omitted]
Circuit Court for Montgomery County, Maryland. Case No. 30325-M. Gary Bair JUDGE.
ARGUED BY Lydia E. Lawless, Assistant Bar Counsel (Glenn M. Grossman, Bar Counsel, Attorney Grievance Commission of Maryland) FOR PETITIONER
ARGUED BY Alan M. Wright. Esquire of Sandy Spring, MD Charles N. Shaffer, Esquire of Damascus, MD FOR RESPONDENT
ARGUED BEFORE 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.
[445 Md. 586] Battaglia, J.
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), 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), 1.3 (Diligence), 1.4 (Communication), 1.5(a) (Fees), 1.15(a) (Safekeeping
Property), [445 Md. 587] 1.16(d) (Declining or Terminating Representation), 8.1 (Bar [445 Md. 588] Admission and Disciplinary Matters), 8.4(a), (c), and (d) (Misconduct), as well as Maryland Rule 16-606.1 (Attorney Trust Account Record-Keeping).
[445 Md. 589] By Order dated September 22, 2014, this Court referred the matter to Judge Gary E. Bair of the Circuit Court for Montgomery County, for a hearing in accordance with Maryland Rule 16-757(a). Rand
was served with the Petition for [445 Md. 590] Disciplinary or 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Amended Petition for Disciplinary or Remedial Action in which the allegations that Rand violated Rules 1.1 and 1.3 were withdrawn.
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.
[445 Md. 591] 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, required Ms. Klein to provide a retainer of $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.
[445 Md. 592] 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 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.
[445 Md. 593] 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 from Rand regarding his representation of Ms. Klein. Those efforts continued until the morning of the first day of the disciplinary hearing, January
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:
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 [445 Md. 594] 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 commonlaw 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. 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> 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 [445 Md. 595] 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.
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, [445 Md. 596] " [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.
[445 Md. 597] 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 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> 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 [445 Md. 598] 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.
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 [445 Md. 599] 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.
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...."
[445 Md. 600] 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 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 [445 Md. 601] 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;
[445 Md. 602] 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, 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 [445 Md. 603] 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.
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 [445 Md. 604] 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.
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.
[445 Md. 605] 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 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 [445 Md. 606] 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:
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 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
[445 Md. 607] 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. Atty. Griev. Comm'n 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 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 [445 Md. 608] 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 ...