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Attorney Grievance Commission of Maryland v. Robbins

Court of Appeals of Maryland

April 3, 2019

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
JONATHAN DAVID ROBBINS

          Argued: November 5, 2018

          Circuit Court for Montgomery County Case No.: 433323-V

          Barbera, C.J., Greene, McDonald, Watts, Hotten Getty, Adkins, Sally D., (Senior Judge, Specially Assigned) JJ.

          OPINION

          Adkins, J.

         The Attorney Grievance Commission of Maryland ("AGC"), acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action ("Petition") against Respondent Jonathan David Robbins. Bar Counsel charged Robbins with violating the Maryland Lawyers' Rules of Professional Conduct ("MLRPC") in his capacity as attorney for Shelba Bossom, Annette Torchinsky, and Helen Nutt.[1] Specifically, Bar Counsel alleged that Robbins violated the following rules: (1) MLRPC 1.1 (Competence); (2) MLRPC 1.2 (Scope of Representation and Allocation of Authority Between Client and Lawyer); (3) MLRPC 1.3 (Diligence); (4) MLRPC 1.4 (Communication); (5) MLRPC 1.5 (Fees); (6) MLRPC 1.6 (Confidentiality of Information); (7) MLRPC 1.7 (Conflict of Interest - General Rule); (8) MLRPC 1.8 (Conflict of Interest: Current Clients: Specific Rules); (9) MLRPC 1.15 (Safekeeping Property); (10) MLRPC 1.16 (Declining or Terminating Representation); (11) MLRPC 8.1 (Bar Admission and Disciplinary Matters); and (12) MLRPC 8.4 (Misconduct). Pursuant to Maryland Rules 19-722 and 19-727, this Court designated the Honorable Harry C. Storm of the Circuit Court for Montgomery County ("hearing judge") to conduct an evidentiary hearing and make findings of fact and recommend conclusions of law. The hearing was held over five days in March and May of 2018.

         Following the hearing, the hearing judge issued Findings of Fact and Conclusions of Law, in which he found by clear and convincing evidence that Robbins violated MLRPC 1.1, 1.2, 1.3, 1.4, 1.5, 1.7, 8.1(a), 8.4(a), 8.4(c), and 8.4(d). The hearing judge found that Robbins did not violate MLRPC 1.6(a), 1.8, 1.16, or 8.4(b).

         THE HEARING JUDGE'S FINDINGS OF FACT

         Robbins was admitted to the Maryland Bar in 1988. Upon admission, he began work with Ernst & Whinney[2] and practiced law part-time. He is also licensed as a Certified Public Accountant and a Certified Financial Planner, holding professional financial specialist and global management accountant designations from the Association of International Certified Public Accountants. Robbins is a solo practitioner. He operates the Law & Accounting Offices of Jonathan D. Robbins, Chartered, a law/accounting/estate and financial planning business. Approximately 50% of his time is spent preparing income tax returns and providing representation to clients with matters brought by tax agencies. The remaining half of his time is focused on legal work involving trusts and estates, formation of business entities, and litigation over trusts and estates. At all times relevant to the matters before us, Robbins handled all secretarial, administrative, paralegal, and IT support functions himself. Robbins logged incoming and outgoing phone calls and all time billed for calls and other work was entered into the Timeslips computer program when the work was performed. By Robbins' own testimony, it is his practice to only send client invoices "when jobs are completed." He also performs discrete tasks for flat fees "whenever possible."

         The AGC's investigation of Robbins was set in motion by the complaints of Shelba Bossom, Annette Torchinsky, and Helen Nutt. As to each complaint, Judge Storm made the following findings of fact by clear and convincing evidence:

         Complaint of Shelba Bossom

         In 1992, Robbins prepared estate planning documents for Shelba Bossom's mother, Louise Sutherland, which named Bossom as successor trustee and sole beneficiary of Sutherland's estate. Soon after Sutherland's death in May 2012, it came to light that in July of 2007, Sutherland executed revised estate planning documents, which named Bossom's daughter, DeLee Yaukey, and son-in-law, Kirk Yaukey, as successor trustees and personal representatives. The new documents set forth that Sutherland's estate was to be equally divided between Bossom and her daughter.

         Bossom executed two retainer agreements with Robbins on May 22, 2012. The first was for Bossom as personal representative of her mother's estate and the second as trustee of her mother's trust ("2012 Bossom Retainer Agreements").[3] Given the amendments that Sutherland made in 2007 to her estate planning documents, Bossom was no longer named personal representative or trustee. Robbins stated that he was hired "to find out what was happening in terms of the financial situation that Louise Sutherland left once she died."[4]

         The 2012 Bossom Retainer Agreements include the following provisions:

° The hourly rates of the attorneys, paralegals and administrative personnel who will work on these matters will range from $50.00 - $75.00 per hour for administrative personnel, $75.00 - $100.00 per hour for paralegals and legal assistants and $350.00 per hour for attorneys.
° The Firm will send you a monthly (or less frequent) statement for services rendered and costs incurred.

         The Retainer Agreements also included provisions giving Robbins "the right to request replenishment of the retainer 'so that representation may continue'" and the "unilateral right to withdraw from further representation" if invoices or statements were not paid within 30 days.

         On June 26, 2012, Robbins informed Bossom that he had "hired Eugene Kane, Jr., Esq. to assist with the imminent litigation." Robbins represented that he was drafting documents to be filed with the court, affidavits, and a letter to DeLee. He also requested that Bossom replenish her retainer with $5, 000. The hearing judge found that there was "no credible evidence showing that at the time of this communication Mr. Robbins was in fact drafting any court documents."

         On July 10, 2012, Robbins communicated to Bossom that "the situation is urgent at this time" and "we must and will file the necessary challenges [to the 2007 Will] as soon as possible." Yet, another three months passed before Robbins told Bossom that his part of the Caveat document was complete and that he had "almost finished with the Complaint document." Finally, on December 15, 2012 Robbins again indicated that he "expect[ed] to be able to file the lawsuit against [Mr. Yaukey] very shortly." The hearing judge found "no credible evidence, either from [Robbins'] time and billing entries or otherwise, to support" this representation by Robbins.

         On December 15, 2012, Robbins advised Bossom that "the Petition to Caveat would be filed 'on Monday' and that he had waited 'until this point' to file the Petition 'to give [the Yaukeys] the maximum amount of time to respond to our original letter to disclose information and provide requested documents.'" Robbins also represented that he had not received a response from the Yaukeys to his July 13 request for information and documents related to Sutherland's estate when, in fact, in late July, their attorney, Scott A. Morrison, had declined to provide any documents.[5] This notification occurred three days after the statutory deadline had passed mandating that a Petition for Caveat be filed "prior to the expiration of six months following the appointment of a personal representative," Maryland Code (1974, 2011 Repl. Vol.), § 5-207(a) of the Estates and Trust Article ("ET"). Consequently, the hearing judge found this statement to be misleading.

         Robbins ultimately filed the Petition to Caveat on December 19, 2012-seven days late. An order was issued on December 20, 2012 dismissing the Petition as untimely pursuant to ET § 5-207(a). Bossom received notice of the dismissal on December 22, 2012 and emailed Robbins.[6] The hearing judge found that "no material work appears to have been performed in furtherance of Shelba Bossom's case between July [24, ] 2012 when Mr. Morrison responded to [Robbins'] letter and December [19, ] 2012, when Mr. Robbins filed the untimely Petition to Caveat the 2007 Will . . . ."

         From June 2012 through September 2013, Robbins made a number of misleading statements to Bossom wherein he represented that he was working on the Complaint. On January 22, 2013, he emailed Bossom and indicated that "I am hopeful that I can complete the complaint against [the Yaukeys] this week and have it sent to Eugene Kane for his review over the weekend. This is an extensive complaint and am looking forward to it being filed very shortly." The judge found this to be misleading, as there was "no credible evidence, either from [Robbins'] time and billing entries or otherwise that as of January 2013, [Robbins] had drafted a complaint." The hearing judge also found that there were no billing entries from January 22, 2013 through April 13, 2013.

         On April 13, 2013, Bossom emailed Robbins requesting another update. Robbins responded on April 19 stating:

I had to get through tax season and I have gotten rid of the lawyer that I hired to assist in the litigation. I am interviewing several others and I like one better than the rest. I am preparing to file suit and will be in touch with you next week to discuss the relevant issues.

         The hearing judge found "no credible evidence showing that on April 19, 2013, [Robbins] was 'preparing to file suit.'" Nor is there evidence in Robbins' "time and billing entries or otherwise, showing that as of April 19th he had interviewed any other attorney to assist with the litigation." Thus, these statements were also misleading.

         On May 1, 2013, Bossom and Robbins received the First and Final Account of the Sutherland Trust. On May 16, 2013, Robbins again assured Bossom that he "expected to provide her with a draft complaint for review and comment within the next week and stated, 'I want to file suit against [the Yaukeys] by the end of next week in the Montgomery County Circuit Court.'" The hearing judge found that there was "no credible evidence, either from [Robbins'] time and billing entries or otherwise, to suggest [Robbins] had either begun the draft of a complaint, or that he would otherwise be prepared to file suit within the next week."

         Between early July and September of 2013, Bossom tried on numerous occasions to get updates from Robbins. His responses to the various requests included that: he was "in the middle of a deadline" and would try to call to "discuss the case"[7]; he had been in a "very bad accident several weeks ago, surgery" but he was "ready to sue"[8]; and he had been "extremely busy."

         Morrison wrote Robbins on September 6, 2013 to advise that the Yaukeys would be moving forward with the distribution of the trust assets as set forth in the First and Final Account dated May 1, 2013.[9] Robbins responded indicating that Bossom "continued to assert that the July 2007 Will and trust amendment were invalid and that no distributions should be made."

         In September 2013, Robbins met with Robert Scanlon and retained Scanlon's services as litigation counsel for Bossom against the Yaukeys. The court found that this was the first "meaningful action" Robbins took in 14 months.

         Scanlon drafted a complaint within weeks of being retained and sent it to Robbins for review. He also advised Robbins on September 19 that he had spoken with the Bossoms and they were ready to proceed. On September 28, Robbins provided a copy of the Complaint to Bossom and requested that she send $5, 000 "to cover fees and expenses" as well as Scanlon's fees. Suit was filed on October 7, 2013 in Montgomery County Circuit Court and identified both Robbins and Scanlon as counsel. The Complaint alleged, inter alia, that the 2007 trust agreement was procured by undue influence. The hearing judge found that there was "no credible and reasonable explanation offered by [Robbins] for the delay in preparing and filing suit against the Yaukeys." Even after Scanlon was retained to assist with the litigation, Robbins remained the primary point of contact for Bossom, despite having knowledge that he would be a witness in the litigation.[10]

         In May 2014, Robbins told Bossom that, "[A]ll aspects of your litigation are proceeding well and in your favor. I am very happy with the way things are moving." Then on June 24, Scanlon received an offer from the Yaukeys' attorney to settle the litigation, which "made clear that the Yaukeys viewed the litigation as having triggered a 'no contest' clause of the trust, thereby revoking any interest Shelba Bossom had therein (meaning that if the no contest clause was upheld, Shelba Bossom would receive nothing)."

         Later that year, Robbins and Scanlon began to disagree on strategy. Robbins communicated to Bossom that he suspected "Scanlon might be conspiring with the Yaukeys or their counsel, perhaps having a side agreement whereby, if the case settled, Mr. Scanlon would receive a secret kickback." This put a strain on Scanlon's ability to communicate effectively with Bossom and planted seeds of doubt in her mind about his integrity. Eventually, Bossom told Scanlon that "communications should go through Mr. Robbins," but Scanlon admittedly was able to speak with Bossom when necessary.

         By the end of November 2014, Robbins had begun to try to retain additional counsel. In December, Robbins brought in James E. Edwards, an attorney with whom he had shared his theory regarding Scanlon having a deal to receive a kickback when the case settled. Edwards agreed to investigate the case and sent a retainer agreement to Bossom. Edwards met with Scanlon and determined that Scanlon "appeared competent and prepared to handle the case[.]" Edwards agreed to take a limited role in the Bossom matter and help manage the relationship between Robbins and Scanlon.

         Despite having retained Scanlon and Edwards in the Bossom matter for their litigation prowess and knowing that he would be called as a witness, Robbins was determined to "remain in control of the client, and as the lead conductor on the direction of the case and any settlement strategy" and filed a "Line" in January 2015 to document that Bossom was being represented by him and the Law & Accounting Offices of Jonathan D. Robbins, Chartered. Many of Robbins' actions were erratic and conflicted with trial counsel's advice, including failing to withdraw his appearance until April 22, 2015-the day before the trial.[11] Robbins also withdrew a settlement offer made to the Yaukeys without consulting Scanlon or Edwards.

         Robbins drafted a term sheet for the March 16, 2015 mediation estimating damages at approximately $2.8 million.[12] Scanlon and Edwards had reservations about components of the term sheet. Scanlon testified that, at the mediation, Robbins told Bossom "that the case was as close to a 'slam dunk' as he had ever seen, and that he wanted $2.4 million." Bossom, following Robbins' advice, wanted to proceed to trial. In Scanlon's estimation, if Bossom won, the "best case" would have been that she received $1.2 to $1.3 million.

         The trial started on April 23, 2015. On the fourth day of trial, the Yaukeys "made a 'substantial settlement offer.'" Scanlon discussed this with the Bossoms and Edwards. While Scanlon and Edwards agreed to reduce their fees to "make the numbers work," they needed to speak with Robbins about his fees because he had never sent Bossom a billing invoice, and the only amount they had for reference was that which Robbins included on the term sheet he had prepared. Edwards testified, and Scanlon corroborated, that when Robbins was informed of the settlement offer, he "became very agitated," was verbally abusive to Edwards, and Robbins' response upset the Bossoms. A confidential settlement was eventually reached.

         Between November 11, 2013 and May 22, 2014, although Robbins had still never provided Bossom with an invoice or billing statement, he requested that she provide additional funds to replenish her retainer. In November 2013, Robbins told Bossom that he would provide her with a copy of Scanlon's invoice, but Robbins was not able to send his invoice because he was "slowly preparing" them. In January of 2014, Robbins still had not sent Bossom a copy of his or Scanlon's invoice. He used the excuse that his scanner was not working and said he would email Scanlon's invoices once it was functioning. Robbins further told Bossom that his "invoices will be sent out in about two to three weeks." At the end of February, Robbins requested payment and indicated that it "should cover both January and February legal fees and expenses." At this point, he still had not provided Bossom with a copy of the invoice, so she responded by asking him to "send her an accounting of [her] expenses to this date." Robbins replied, stating in part:

I received your e-mail message and I will forward Robert's invoices as soon as I receive his latest one. My invoices are a bit more complicated and will take a little more time to forward to you. The complication is a result of my giving you sizable "courtesy discounts" over time. I have a higher billable rate than does Robert and I want to keep my portion of the bills at a reasonable amount for you.

         Again, in late May 2014, Robbins told Bossom that he had "reviewed Robert Scanlon's billing statements and I will be writing down my statements to you. However, you are in the most expensive part of the lawsuit."[13] The hearing judge found that there was "no credible evidence" to show: that "sizeable courtesy discounts were ever given," that Robbins wrote down his statements to Bossom, or that he had been preparing his statement.

         On June 8, 2014, Robbins sent Bossom a Durable Power of Attorney for the Property of Shelba Ann Sutherland Bossom, which granted Robbins "broad power to act on Bossom's behalf." Bossom executed it and returned it to Robbins. Three weeks later, Robbins used the Power of Attorney to execute a new engagement agreement between Bossom, in her individual capacity, and Robbins' firm. This retainer agreement increased Robbins' hourly rate to $500 per hour from $350 per hour, and made the new hourly rate "retroactive to May 22, 2012." Robbins testified that that he had signed the July 1, 2014 Retainer Agreement for "administrative purposes" and that he had discussed it with Bossom, she had agreed to it, and he had mailed a copy of the Retainer Agreement to her. There was no documentation of any of this in his time and billing entries. The hearing judge found that:

[T]here was no credible reason advanced by [Robbins] for why he used his authority under the recently granted Power of Attorney to execute the July 1, 2014 Bossom Retainer Agreement, rather than have Ms. Bossom execute it herself. After all, just three weeks earlier, he provided the Power of Attorney to Shelba Bossom for personal signature.
Simply put, there is no credible evidence that Ms. Bossom authorized [Robbins] to use the Power of Attorney to execute the July 1, 2014 Bossom Retainer Agreement, that [Robbins] told her he used the Power of Attorney for that purpose, or that Ms. Bossom was even aware of the existence of that document until after the representation ended in April 2015.
The court rejects [Robbins'] claim that Shelba Bossom agreed to his nearly forty-three (43%) increased rate change in their December 22, 2012 telephone call [as asserted by Robbins]. It strains credibility to believe that Ms. Bossom willingly agreed to a $150 per hour increase on the same day that [Robbins] would have discussed with her the fact that the Caveat proceeding had been dismissed because he filed it too late. Respondent's version is simply not credible.

         In early May of 2015, Bossom received a 56-page billing invoice from Robbins, which spanned May 21, 2012 to April 30, 2015-nearly three years-the entirety of his representation of Bossom. The hearing judge wrote that:

The Court does not find credible and rejects Respondent's testimony to Bar Counsel that he provided Ms. Bossom with information about his billing statements "every single time [she] asked for retainer replenishment and then thereafter on several occasions." Moreover, despite statements that he intended to provide a statement "shortly" or "Within a few weeks," that never occurred. There is likewise no evidence that Mr. Robbins provided the "sizeable courtesy" adjustment that he indicated would be forthcoming.

         From May 2012 to May 2015, the attorneys' fees and costs that Robbins charged Bossom were $219, 330. During the course of his representation, Bossom paid Robbins $31, 992.96. From April 22, 2015 to April 31, 2015-after Robbins had withdrawn his representation- he included further charges in a second invoice to Bossom totaling $21, 200.

         Bossom filed a complaint against Robbins with Bar Counsel in August 2015. Bar Counsel also obtained information from Scanlon and Edwards regarding "observations and concerns" they had about Robbins. A copy of the complaint was sent to Robbins on September 10, 2015 with a request that he provide a written response.

         In his response to Bar Counsel dated October 7, 2015, Robbins stated that "Bossom (i) never requested a billing invoice during the pendency of the representation; (ii) that she had agreed verbally to an increase in his hourly rate[;] and (iii) that she authorized him to execute the July 2014 Agreement using the Power of Attorney." The hearing judge found that Robbins' first statement was "misleading" and his "second statements were knowingly false and misleading."

         Bar Counsel took Robbins' statement under oath in July 2016 in which he testified that Bossom "did not want to see Mr. Scanlon's bills, and that she authorized [Robbins] to sign the July 2014 Bossom Retainer Agreement." The hearing judge found that these statements were "knowingly false and misleading."

         Complaint of Annette Torchinsky

         In late November 2012, Annette Torchinsky contacted Robbins regarding representation on estate planning and tax matters. Torchinsky signed a retainer agreement[14] (the "First Torchinsky Retainer Agreement") on December 28, 2012 and gave Robbins an initial retainer of $3, 500. The representation was "in connection with her estate planning, Income Tax Return preparation and other matters as [she] may refer to [Robbins] from time to time." The First Torchinsky Retainer Agreement provided the following:

The hourly rates of the attorneys, paralegals and administrative personnel who will work on these matters will range from $50.00-$75.00 per hour for administrative personnel, $75.00- $100.00 per hour for paralegals and legal assistants and $350.00 per hour for attorneys.
* * *
Client acknowledges that, if Client has received an estimate of the fees and costs that may be incurred in connection with the legal and accounting services that we will provide, that estimate is not a fixed fee and does not constitute a commitment by the Firm to perform the described services for that amount or an obligation by you to pay that amount.
** *
The Firm will send you a monthly (or less frequent) statement for services rendered and costs incurred.
** *
It is the Firm's practice to obtain a retainer before we commence work for new clients. This retainer is used to pay the Firm for services rendered and costs incurred on your behalf in accordance with this Engagement Letter. From time to time, the Firm may ask you to replenish all, a part of, or more than your retainer so that representation may continue. Upon completion of all work to be performed by the Firm for you, we will return to you any unused portion of your retainer which may exist. We believe that a retainer of $3, 500.00 is appropriate under your circumstances.

         Robbins testified that, from the beginning of his representation, Torchinsky was insistent that she did not want to see any invoices. Robbins presented no evidence to support this assertion. While conceding that she had not asked Robbins to provide an invoice, Torchinsky denied having told Robbins that she did not want to see billing statements.

         Torchinsky and Robbins gave conflicting testimony regarding whether some of the work performed by Robbins was to be on a flat fee basis.[15] Despite evidence that he had done some flat fee work for Torchinsky, Robbins testified that he had not. Specifically, under oath, Robbins asserted that "[d]uring my entire representation of [Torchinsky], I never produced or worked on any 'flat fee' item. No 'flat fee' item ever existed during the entire time I had represented her[.]" Yet, Robbins indicated to Bar Counsel in correspondence and a sworn statement that there were 22 flat fee documents. The hearing judge noted that, "The court does not find credible [Robbins'] later attempts to pedal back from his use of the term 'flat fee' in describing some of the work performed for Ms. Torchinsky."

         Robbins met Torchinsky's father, Irving Torchinsky ("Irving"), on January 9, 2013. Notwithstanding that Robbins had never met Irving prior to this date, Robbins had prepared a retainer agreement and estate planning documents and presented them to Irving for execution. The documents included a "parent and adult child conflicts waiver letter," an Employment Agreement, a Durable Power of Attorney for the Property, and a Living Will and Durable Power of Attorney for Health Care Decisions.[16] Irving signed the Employment Agreement, Power of Attorney, and Living Will, but did not sign the retainer agreement or the conflicts waiver letter. Despite Irving's failure to sign these documents, Robbins went forward with his representation of Irving. Robbins testified that he explained the potential conflict to Irving in detail, and that Irving "waived it verbally." The court found this testimony to lack credibility.

         By this point, Robbins and Torchinsky's relationship had become more personal than just that of attorney and client, and by June of 2014, the were involved in a sexual relationship. On May 27, 2013, Torchinsky executed a second retainer agreement for work to be done relating to Kindle Korp, LLC (the "Kindle Korp Retainer Agreement"). This retainer agreement only differed from the 2012 Torchinsky Retainer Agreement in that non-income tax matters were billed at $500 per hour and a $1, 300 retainer was required. Robbins also handled a leasing matter for a rental property owned by Torchinsky. On June 8, 2013, in an email, she inquired how much this would cost and Robbins' response was, "Let me work on the amount."

         In July 2013, as Torchinsky's relationship with her siblings grew more contentious, Robbins told her that litigation was probable. Robbins began to discuss Torchinsky's litigation needs with Robert Scanlon and continued to communicate with him regarding her issues. The pending litigation with Torchinsky's siblings never materialized, but Robbins continued to engage in discussions with Torchinsky's siblings and their counsel into 2014.

         On alleged advice from Robbins, Torchinsky had taken out a home equity line of credit ("HELOC"). In July, he instructed her to pay him $50, 000 out of her HELOC as a retainer. Torchinsky provided Robbins with two checks equaling $50, 000 to replenish her retainer. Robbins used these funds to make regular payments to himself and three payments to Scanlon's firm. The court was not persuaded by Torchinsky's testimony that Robbins had requested and maintained the $50, 000 for future litigation.[17]

         In October of 2013, Torchinsky executed estate planning documents that Robbins had prepared for her. Approximately five months later, Robbins, allegedly at the request of Torchinsky, again prepared and attempted to have Irving execute a new retainer agreement, conflict waiver related to a durable power of attorney, and living will/health care power of attorney. Irving did not sign them.

         The hearing judge found that from July 2013 through the summer of 2014, Robbins' representation included much more than only preparing flat fee documents for Torchinsky. Torchinsky never asked Robbins for an invoice related to the disbursements from the $50, 000 retainer. Robbins was able to pay himself without any accountability for two years because he failed to provide Torchinsky with billing statements. Regular invoices would have clarified what work was being performed on an hourly basis and what was being completed on a flat fee basis.

         Torchinsky terminated Robbins' representation by letter dated July 7, 2015. In the letter, she itemized the work she believed to have been done on a flat fee basis. Robbins responded on July 9, 2015 acknowledging ...


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