Argued: February 6, 2017
Court for Montgomery County Case No. 32033-M
Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten,
attorney discipline case involves an attorney who failed to
abide by his client's instructions concerning the
handling of the client's case, failed to communicate with
the client to permit him to make informed decisions about his
case, and publicly disclosed confidential client information
in the course of suing the former client and a third person
in federal court, in a state where neither the former client
nor the third party either resided or had any contacts, in an
effort to collect attorney's fees.
April 20, 2016, Petitioner, the Attorney Grievance Commission
of Maryland ("Commission"), acting through Bar
Counsel, filed a Petition for Disciplinary or Remedial Action
against Respondent, James Aloysius Powers, pursuant to
Maryland Rule 16-751(a). The Commission charged Respondent with
violating the Maryland Lawyers' Rules of Professional
Conduct ("MLRPC" or "Rule") 1.2 (Scope of
Representation); 1.4 (Communication); 1.6 (Confidentiality of
Information); 1.9 (Duties to Former Clients); 1.16(d)
(Termination of Representation); 3.1 (Meritorious Claims and
Contentions); 4.4 (Respect for Rights of Third Persons); 8.4
Court transmitted the matter to the Circuit Court for
Montgomery County on April 21, 2016 and designated the
Honorable Michael D. Mason (the "hearing judge") to
conduct an evidentiary hearing and make findings of fact and
conclusions of law. The hearing judge scheduled the case for
a hearing on September 26 and 27, 2016, subject to the
approval of this Court. On July 25, 2016, this Court granted
a motion to extend the time to complete the hearing because
it was scheduled to be completed more than 120 days after
service on Respondent of the order designating a judge to
hear the case. See Md. Rule 16-575(a) (noting that
the judicial hearing in a disciplinary matter "shall be
completed within 120 days after service on the respondent of
the order designating a judge.").
served the Respondent with discovery requests in the form of
Interrogatories, Request for Production of Documents, and
Requests for Admissions of Fact and Genuineness of Documents
on July 13, 2016. In addition, Petitioner filed various other
pre-trial motions; however, Respondent failed to file any
response. On September 26, 2016, Petitioner appeared for a
hearing on the merits; however, Respondent failed to appear
or respond as of that date to any of Petitioner's
discovery requests. As a result of Respondent's failure
to appear at the hearing on the merits or respond to the
request for admissions of fact, the hearing judge deemed
admitted Petitioner's Requests for Admissions of Fact and
Genuineness of Documents. The hearing culminated with the
hearing judge's adoption of Petitioner's Proposed
Findings of Fact and Conclusions of Law.
Hearing Judge's Findings
hearing judge made the following findings of fact by clear
and convincing evidence. See Md. Rule 16-757(c)
(noting that "Bar Counsel has the burden of proving the
averments of the petition by clear and convincing
evidence."). Respondent was admitted to practice law in
Maryland on June 23, 1993. He is also admitted to practice in
New York and Virginia. On February 22, 2012, Jeff A. Braun, a
resident of Allendale, New Jersey, retained Respondent to
represent him in anticipation of litigation involving a
dispute between Mr. Braun and his business partner.
Initially, Mr. Braun payed Respondent $5, 000 as a retainer.
The events that led up to Mr. Braun's retention of
Respondent began in November 2010 when "Mr. Braun [had]
purchased a sports park business know as Golden Goal
Tournament located in Fort Ann, New York." The dispute
between Mr. Braun and his business partner began in 2011 and
led to a lawsuit filed against Mr. Braun (hereinafter,
"the Golden Goal litigation, " or "New York
litigation") on March 5, 2012 in the Supreme Court of
the State of New York, Fort Edward, New York (a trial court).
"Fort Edward is approximately 180 miles or 3 hours from
Mr. Braun's [New Jersey] residence."
Golden Goal litigation, Mr. Braun's business partner
requested a Temporary Restraining Order ("TRO")
against Mr. Braun. At the inception of the lawsuit,
Respondent explained to Mr. Braun that "this case can be
substantially won over the next 20 days." Respondent
assured Mr. Braun that "he would have the suit removed
to federal court or move for a change of venue to the New
York City area (where virtually all of the parties
reside)." Mr. Braun instructed Respondent not to consent
to the TRO. Inconsistent with Mr. Braun's directions,
Respondent consented to the TRO, failed to seek removal of
the case to federal court or move for a change of venue to
the New York City area and failed to respond to the
plaintiff's request for discovery. Although the court
found Mr. Braun in contempt of court for failure to respond
to discovery, Respondent neither informed Mr. Braun of the
discovery violation nor the fact that Respondent had
consented to the TRO on Mr. Braun's behalf.
Fink was a friend of Mr. Braun and also a tax attorney
licensed in the state of New Jersey. Apparently, Mr. Braun
had communicated with his friend about the legal and business
problems confronting Mr. Braun before Mr. Braun retained
Respondent. As a result of this prior relationship, Mr. Braun
authorized Mr. Fink to communicate with Respondent "so
that Mr. Braun could better understand what was going on in
the Golden Goal litigation" and "because
[Respondent] failed to communicate with Mr. Braun in
laymen's terms." Seven months after Mr. Braun
retained Respondent, "[i]n September 2012, Respondent
withdrew from representation of Mr. Braun." It appears
that "Mr. Braun requested that Respondent return his
file on September 24, 2012[;] however, Respondent did not do
so until November 15, 2012" even though the Golden Goal
litigation was ongoing.
Respondent terminated his representation, he sent a final
bill to Mr. Braun for $9, 470. Mr. Braun disputed the final
bill because he had already paid Respondent approximately
$48, 000 and, in Mr. Braun's opinion, the invoices were
vague. In response to Mr. Braun's refusal to pay the
final bill, Respondent "sent threating emails to Mr.
Braun and Mr. Fink. [He] threatened to report Mr. Fink to the
New York attorney disciplinary authorities, and threaten[ed]
to sue both Mr. Braun and Mr. Fink." Although Mr. Braun
asked to arbitrate the fee dispute, Respondent rejected the
offer of arbitration.
of 2013, Respondent sued Mr. Braun and Mr. Fink in the United
States District Court for the District of Maryland alleging
Breach of Contract with respect to Mr. Braun and Tortious
Interference and Unfair Competition with respect to Mr. Fink.
Respondent claimed damages in the amount of $1, 015, 000.
Specifically, he alleged "that Mr. Braun owed him
attorney's fees (plus interest) of approximately $15, 000
and that Mr. Fink had hindered the representation of Mr.
Braun and interfered with the attorney/client relationship
between Respondent and Mr. Braun."
contained in the complaint filed in the federal court touched
upon "matters from the New York litigation that were
privileged due to the attorney/client relationship and the
accountant/client relationship." In response to a Motion
to Dismiss or, in the Alternative, to Strike, Mr. Braun's
attorney argued that the federal court had "no personal
jurisdiction over Mr. Braun, no subject matter jurisdiction,
and that the Complaint contained privileged
information." In formulating a response to the Motion to
Dismiss, "Respondent filed affidavits from Mr.
Braun's former attorney (Mr. Goodman), former accountant
(Mr. Gallo), and from Respondent, all of which revealed
privileged information, strategic information related to the
Golden Goal litigation, and information intended to disparage
Mr. Braun." After Mr. Braun's attorney filed a reply
to Respondent's pleading, Respondent withdrew his
hearing judge in this disciplinary case had before him, as
evidence, the documents that contained the privileged
information. The hearing judge noted that when the District
Court judge issued her Memorandum Opinion and Order for
dismissal of the federal case, she ordered, among other
things, that "the 'majority' of the information
that Mr. Braun sought to redact was confidential according to
the attorney-client privilege and 'much' of the
information [that] Mr. Braun sought to redact was
confidential according to the accountant-client
plaintiff in the Golden Goal litigation, having obtained the
privileged information that Respondent disclosed in his
complaint against Mr. Braun, used that information against
Mr. Braun in the New York litigation.
ten months after Respondent had withdrawn as counsel for Mr.
Braun in the Golden Goal litigation, Respondent, on July 23,
2013, filed, with the court in Fort Edward, an
"Expedited Motion to Show Cause before the New York
court hearing the Golden Goal litigation." In that
motion, he requested that Mr. Braun show cause why he should
not pay the legal fees owed to Respondent and requested that
the court investigate Mr. Fink's alleged misconduct. In
his motion, Respondent specifically contended that "[a]
prior motion on this matter was filed, wisely sealed by this
court[, ] and eventually withdrawn-but not because anything
in that motion was false or factually incorrect. Rather,
because it was filed in haste including more personal affect
than legal effect which this motion endeavors to
address." In addition to the July 23, 2013 Expedited
Motion to Show Cause, a previous Expedited Motion was also
filed on May 6, 2013, after Respondent had withdrawn from the
representation of Mr. Braun. The Fort Edward court did not
rule on either Expedited Motion. Eventually, venue in the
Golden Goal litigation was transferred from the Fort Edward,
New York area to the Manhattan, New York City area.
Apparently, in a continuing effort to collect attorney's
fees, in January 2014, Respondent wrote to Judge Charles E.
Ramos, Judge of the New York State Supreme Court, Commercial
Division, and requested that Judge Ramos advise Respondent on
how he could best present a Motion to Compel Payment of Fees
to the Court. Judge Ramos declined the request.
Hearing Judge's Conclusions of Law The hearing judge
adopted Petitioner's proposed conclusions of law and
found by clear and convincing evidence that Respondent
violated MLRPC 1.2; 1.4; 1.6; 1.9; 1.16(d); 3.1; 4.4; 8.4(a)
1.2 Scope of Representation and allocation of authority
between client and lawyer
Rule 1.2(a) provides that a lawyer "shall abide by a
client's decisions concerning the objectives of the
representation and, when appropriate, shall consult with the
client as to the means by which they are to be pursued."
Further, "[a] lawyer may take such action on behalf of
the client as is impliedly authorized to carry out the
representation. A lawyer shall abide by a client's
decision whether to settle a matter." An attorney
violates Rule 1.2(a) if he or she fails to inform a client of
the status of his or her case, thereby denying the client the
ability to make informed decisions. Attorney
Grievance [Comm'n] v. Hamilton,
444 Md. 163, 182, 118 A.3d 958, 968 (2015).
In order for a lawyer to abide by a client's decisions
concerning representation, the client must be able to make
informed decisions as to the objectives of the
representation. Id. at 182, 968-69. In order for a
client to make informed decisions, an attorney must give the
client honest updates regarding the status of his or her
case. Id., citing Attorney Grievance
[Comm'n] v. Shapiro, 441 Md. 367, 380,
108 A.3d 394, 402 (2015). An attorney may violate Rule 1.2(a)
if he or she fails to follow the instructions of the client.
Attorney Grievance [Comm'n] v.
Sperling, 432 Md. 471, 493, 69 A.3d 478, 490-91 (2013)
(quoting Attorney Grievance [Comm'n]
v. Reinhardt, 391 Md. 209, 220, 222, 892 A.2d, 533,
539-40 (2006) (internal quotations omitted).
In this case, Respondent violated Rule 1.2 when he failed to
abide by Mr. Braun's instructions not to consent to the
Temporary Restraining Order (hereinafter, "TRO").
He also failed to file a motion to change venue to New York
City, and he failed to have the case removed to federal
court. See Petitioner's Exhibit 1, Tab 1.
Further, Respondent failed to inform Mr. Braun that
Respondent agreed to produce Mr. Braun's tax returns to
opposing counsel. When such tax returns were not produced,
the court held Mr. Braun in contempt of court. Id.
Rule 1.4 Communication
Rule 1.4 provides that:
(a) A lawyer shall:
(1) promptly inform the client of any decision or
circumstance with respect to which the client's informed
consent, as defined in Rule 1.0(f), is required by these
(2) keep the client reasonably informed about the status of
(3) promptly comply with reasonable requests for information;
(4) consult with the client about any relevant limitation on
the lawyer's conduct when the lawyer knows that the
client expects assistance not permitted by the Maryland
Lawyers' Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably
necessary to permit the client to make informed decisions
regarding the representation.
Attorneys violate Rule 1.4 when they fail to communicate with
their clients and keep them informed of the status of their
legal matters. Attorney Grievance
[Comm'n] v. Kwarteng, 411 Md. 652, 658,
984 A.2d 865, 868-69 (2009). In Attorney Grievance
[Comm'n] v. De La Paz, Respondent in
that matter failed to tell his client that his case had been
dismissed, which fact the client learned only after traveling
to the courthouse to inquire. 418 Md. 534, 554, 16 A.3d 181,
192-93 (2011). Similarly, in Attorney Grievance
[Comm'n] v. Fox, the attorney violated
Rule 1.4 when he did not know that the client's case was
dismissed and accordingly did not communicate that fact to
the client. 417 Md. 504, 517, 11 A.3d 762, 769 (2010). In
Attorney Grievance [Comm'n] v.
Thomas, the attorney violated Rule 1.4 when he ceased
communicating with the client after he told the client not to
appear at his removal (deportation) hearing, and then failed
to tell the client that he had been ordered removed in
absentia. 440 Md. 523, 553-54, 103 A.3d 629, 647 (2014).
In the case at bar, Respondent violated Rule 1.4(a) when he
failed to inform Mr. Braun that he had consented to the TRO.
See Petitioner's Exhibit 1 at 18. He also
violated Rule 1.4(a) by failing to tell Mr. Braun that he
needed to produce his tax returns, and later, after he failed
to do so, that Mr. Braun had been found in contempt of court.
Id. at 21. Respondent violated Rule 1.4(b) because
he failed to explain what was happening in the Golden Goal
litigation in a manner that Mr. Braun could understand.
Id. at 25. As such, Mr. Braun had enlisted the help
of his friend, attorney Nathan Fink, to communicate with
Respondent. Id. at 24-25.
Rule 1.6 Confidentiality of information
"A lawyer shall not reveal information relating to
representation of a client unless the client gives informed
consent [and] the disclosure is impliedly authorized in
order to carry out the representation[.]" Rule 1.6(a).
Only the client has the power to waive the attorney-client
privilege. Newman v. State, 384 Md. 285, 863 A.2d
321 (2004). The importance of the attorney client privilege
has been described as follows:
By turns both sacred and controversial, the principle of the
confidentiality of client information is well-embedded in the
traditional notion of the Anglo-American client-lawyer
relationship. CHARLES W. WOLFRAM, MODERN LEGAL ETHICS §
6.1.1, at 242 (1986). "The professional rules ...
[embrace] a broad ethical duty not to divulge
information about a client." Id. (emphasis
added). An attorney's duty of confidentiality applies not
only to privileged "confidences, " but also to
unprivileged secrets; it "exists without regard to the
nature or source of the information or the fact that others
share the knowledge." Perillo v. Johnson, 205
F.3d 775, 800 n. 9 (5th Cir. 2000) (quoting ABA Model Code of
Professional Responsibility Canon 4, DR 4-101 and EC 4-4)
(internal quotation marks and alterations omitted). "The
confidentiality rule applies not merely to matters
communicated in confidence by the client[, ] but also to
all information relating to the representation, whatever its
source." Id. at 800 n. 10 (quoting ABA
Model Rules of Professional Responsibility 1.6 & cmt.5)
(emphasis added); accord, United States v. Edwards,39 F.Supp.2d 716, 724 (M.D. ...