Attorney Grievance Commission v. Rand
128 A.3d 107
| Md. | 2015Background
- Respondent Charles S. Rand represented Nancie Klein in an EEOC age/race discrimination matter under an "evergreen" hourly retainer (initial $1,500; hourly rate later reduced to $250). Klein paid additional retainer replenishments but repeatedly requested bills; Rand did not provide periodic invoices until after termination.
- Rand drafted an addendum to Klein’s EEOC complaint; Klein approved it and instructed him to file it in February 2012, but Rand did not separately file it and later unilaterally incorporated its content into an April 2012 EEOC reply without notifying Klein.
- Klein retired early (Nov. 30, 2011) due to workplace stress; the court found Rand failed to advise her about medical retirement/constructive-discharge ramifications.
- After Klein discharged Rand in March 2013, he produced a confusing invoice ledger claiming $11,230, asserted a retaining lien, and refused to provide her full file; Klein retained successor counsel who needed documents for EEOC conciliation.
- Bar Counsel investigated; Rand made misleading statements to Bar Counsel (claiming he "won" the case and was awarded attorneys’ fees) and delayed or provided incomplete trust-account and client-records production. The hearing judge found multiple ethics violations.
Issues
| Issue | Plaintiff's Argument (Bar Counsel) | Defendant's Argument (Rand) | Held |
|---|---|---|---|
| Whether Rand violated Rule 1.4 (communication) by failing to send invoices, not filing or notifying client about the addendum, and not advising on retirement ramifications | Rand failed to provide periodic invoices as required by his fee agreement; failed to inform Klein that the addendum was not filed and failed to advise on retirement consequences | Rand contended he was not required to send monthly invoices and that the addendum’s substance was later filed as part of a reply; he disputed that retirement advice was sought | Court held Rand violated Rule 1.4(a) and (b) for failing to provide invoices, failing to timely communicate about the addendum, and failing to advise re: retirement options |
| Whether Rand violated Rule 1.5(a) (fees) by charging unreasonable fees or failing to comply with fee-agreement billing procedures | Failure to provide required statements and to request retainer replenishment made fee claim unreasonable and breached fee agreement | Rand argued billing lapses were clerical and did not render fees unreasonable | Court concluded violation of Rule 1.5(a) for not providing required invoices and not requesting replenishment per agreement |
| Whether Rand violated Rule 1.15 and Md. Rule 16-606.1 (trust/account recordkeeping) by maintaining inaccurate/confusing ledgers and incomplete records | Rand failed to maintain required trust-account and client-matter records, produced inconsistent ledgers, and omitted bank statements | Rand argued his PCLaw records were sufficient and discrepancies were clerical | Court held Rand violated Rule 1.15(a) and Md. Rule 16-606.1 for inadequate recordkeeping |
| Whether Rand violated Rule 1.16(d) by withholding client file after termination and improperly asserting a retaining lien | Rand withheld portions of the file and asserted a retaining lien despite poor billing and recordkeeping; successor counsel needed documents for pending conciliation | Rand asserted a common-law retaining lien and claimed he provided necessary documents; argued some materials could be obtained elsewhere | Court held Rand violated Rule 1.16(d); retaining lien invalid because of his own billing/recordkeeping failures and client’s need for documents for pending conciliation |
| Whether Rand violated Rule 8.1 (a), (b) by making false statements to Bar Counsel and failing to respond to lawful information requests | Rand knowingly made material misrepresentations ("I won her case," awarded fees, amount paid) and delayed/incompletely responded to Bar Counsel requests | Rand maintained some statements were exaggerations or misunderstandings and that he eventually produced documents or set conditions for inspection | Court found knowing misrepresentations and failure to timely/properly respond; concluded violations of Rules 8.1(a) and 8.1(b) |
| Whether Rand’s conduct violated Rule 8.4 (a), (c), (d) (misconduct/dishonesty/prejudicial conduct) | Pattern of dishonesty, inadequate recordkeeping, improper lien, and interference with administration of justice | Rand claimed clerical errors and argued conduct did not rise to misconduct warranting severe discipline | Court found violations of Rules 8.4(a), (c), and (d) founded on the other rule breaches, misrepresentations, and prejudicial delay |
Key Cases Cited
- Attorney Grievance Comm’n of Md. v. Calhoun, 391 Md. 532 (2006) (failure to provide periodic billing statements can violate communication rules)
- Attorney Grievance Comm’n of Md. v. Green, 441 Md. 80 (2014) (failure to provide invoices per fee agreement and refusal to cooperate with Bar Counsel supported sanction of indefinite suspension)
- Attorney Grievance Comm’n of Md. v. Brown, 426 Md. 298 (2012) (failure to inform client of case status and to respond to repeated client inquiries violates Rule 1.4)
- Attorney Grievance Comm’n of Md. v. Sheridan, 357 Md. 1 (1999) (ethical limits on asserting a retaining lien; lawyer cannot use self-help retention when ethical considerations require otherwise)
- Attorney Grievance Comm’n of Md. v. Tanko, 427 Md. 15 (2012) (refusal to provide Bar Counsel requested information violates Rule 8.1(b))
- Attorney Grievance Comm’n of Md. v. Harmon, 433 Md. 612 (2013) (inadequate trust-account records and failure to maintain required documents violate Rule 16-606.1 and Rule 1.15)
- Attorney Grievance Comm’n of Md. v. Foltz, 411 Md. 359 (2009) (violations of other professional rules may constitute Rule 8.4(a) misconduct)
- Attorney Grievance Comm’n of Md. v. Hodes, 441 Md. 136 (2014) (standard of review in attorney-discipline proceedings: independent review; accept factual findings unless clearly erroneous)