Attorney Grievance Commission v. Powers
164 A.3d 138
| Md. | 2017Background
- James A. Powers (admitted 1993) represented Jeff Braun (NJ resident) in New York litigation over a business dispute; Braun paid substantial fees and later disputed a final $9,470 invoice.
- Powers consented to a Temporary Restraining Order (TRO), failed to seek venue change or federal removal, and did not inform Braun; Braun was later held in contempt for failure to produce tax returns Powers had agreed to produce.
- Powers withdrew as counsel in Sept. 2012 but delayed returning Braun’s file and did not promptly send a final bill; disputes continued.
- To collect fees, Powers sued Braun and Braun’s friend/attorney Nathan Fink in the U.S. District Court for Maryland (neither defendant lived or had contacts there), filing affidavits and pleadings that publicly disclosed privileged attorney- and accountant-client information.
- The federal court recognized much of the challenged material as confidential; the New York litigation’s plaintiff used the disclosed material against Braun.
- Hearing judge found clear-and-convincing evidence Powers violated multiple Maryland Lawyers’ Rules of Professional Conduct; the Court of Appeals adopted those findings and imposed an indefinite suspension.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Failure to follow client instructions / scope of representation (Rule 1.2) | Powers disregarded Braun’s instruction not to consent to TRO and failed to seek venue removal/change | Powers asserted his litigation choices were lawful and justified | Court held Powers violated Rule 1.2 for failing to abide by client directions and to keep client informed |
| Failure to communicate / explain status (Rule 1.4) | Powers failed to inform Braun about consent to TRO, tax-return production, contempt, and did not communicate in understandable terms | Powers contested severity but offered no timely mitigation at hearing | Court held Powers violated Rule 1.4(a) and (b) |
| Disclosure of confidential information of a former client (Rules 1.6 and 1.9) | Powers publicly filed privileged material in federal court without Braun’s consent and used it to Braun’s detriment | Powers claimed disclosures were authorized or necessary to collect fees; denied wrongdoing | Court held Powers violated Rules 1.6 and 1.9 by revealing and using former-client confidences |
| Improper termination/post‑representation conduct (Rule 1.16(d)) | Powers delayed returning client file and final invoice after withdrawal | Powers offered no convincing excuse or timely proof of mitigating circumstances | Court held Powers violated Rule 1.16(d) for failing to protect client’s interests on termination |
| Filing meritless suit in wrong forum; using litigation to harass (Rules 3.1 and 4.4) | Powers filed a Maryland federal collection suit lacking subject‑matter and personal jurisdiction to pressure Braun and Fink, burdening them | Powers argued he pursued available remedies and later withdrew; claimed justification | Court held Powers violated Rules 3.1 and 4.4 — lawsuit was a baseless, burdensome tactic |
| Professional misconduct and sanction (Rule 8.4; sanction selection) | Petitioner sought indefinite suspension given multiple, knowing violations and aggravating factors | Powers sought a reprimand and cited personal hardship; offered no evidence to support mitigation at hearing | Court found multiple Rule violations, aggravating factors, no persuasive mitigation, and imposed indefinite suspension |
Key Cases Cited
- Newman v. State, 384 Md. 285 (2004) (attorney cannot waive client privilege; privilege belongs to client)
- Siskind v. Attorney Grievance Comm'n, 401 Md. 41 (2007) (using former‑client information to the client’s disadvantage violates duties to former clients)
- Mixter v. Attorney Grievance Comm'n, 441 Md. 416 (2015) (using litigation and discovery tactics to harass or burden third parties violates Rule 4.4)
- Framm v. Attorney Grievance Comm'n, 449 Md. 620 (2016) (egregious breaches, including deceit and undermining former clients, can warrant disbarment)
- Moore v. Attorney Grievance Comm'n, 451 Md. 55 (2017) (indefinite suspension appropriate where serious Rule violations occur absent sufficient mitigation)