The Attorney Grievance Commission (“Petitioner”), acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action against Charles S. Rand (“Respondent”), charging him with professional misconduct arising out of his representation of Alison Welles Snowden in a divorce action. Petitioner charged Respondent with violating Rules 4.4(a) (Respect for Rights of Third Persons)
We referred the matter to the Honorable Mary Beth McCormick of the Circuit Court for Montgomery County to
The Findings of Facts
Respondent was admitted to practiсe law in Maryland in 1973. He is also a member of the District of Columbia Bar. He maintains a law office in Rockville, Maryland. In May 2005, Alison Welles Snowden retained Respondent to represent her in a divorce action against her then husband, Martin Alan Snowden. Respondent entered his appearance on 14 June 2005. Prior to retaining Respondent, Ms. Snowden, also an attorney, had filed a Complaint for Absolute Divorce in the Circuit Court for Montgomery County. Allen J. Kruger, Esquire, represented Mr. Snowden. Mr. Snowden filed an Answer to the Complaint and a Counter-Complaint for Absolute Divorce on 7 June 2005. Both parties sought alimony, spousal support, and child support.
In preparation for trial, Respondent sought production of Mr. Snowden’s mental health treatment records from vаrious providers, including the Priory Hospital in London, England. Kruger responded with a Motion for Protective Order and Sanctions on 25 August 2005. Respondent, in turn, filed an opposition and a request for an order compelling production of the records. After a hearing before the Honorable Ann S. Harrington on 11 January 2006, the Circuit Court ordered that Mr. Snowden sign a release for the mental health records.
At the conclusion of the trial-level proceedings and final disposition of the issues to which the Records relate or pertain (Alimony, spousal support, etc.), Plaintiffs counsel shall retain an original copy of the Records which he shall place in a sealed envelope in Plaintiffs file with the within [sic] Agreement and all аttachments taped to the exterior thereof, surrounded by appropriate warnings that the sealed envelope contains highly-confidential information. He shall then provide Defendant’s counsel with all other copies in his possession together with a list of those persons who received all or a portion of the Records and whether such copies were returned or retained by such person(s). He shall also require all persons to whom he has provided copies to return same to him. Plaintiffs counsel shall destroy all such records immediately after the case reaches a final conclusion, including appeals.
On 5 April 2006, all parties and counsel signed the Agreement. Mr. Snowden thereafter signed the release and Respondent received a copy of Mr. Snowden’s records from the Priory Hospital.
On 30 October 2006, the day the Snowdens’ case was scheduled for trial, the parties entered into an agreement, placed on the record, as to all issues of property. The Circuit Court granted a Judgment of Absolute Divorce to the parties and directed counsel to submit an appropriate order. Judge S. Michael Pincus signed the submitted order on 12 December 2006, which was entered on 19 December 2006. The Judgment of Absolute Divorce provided:
*88 UPON CONSIDERATION of the pending pleadings herein; and this matter having come before the Court for hearing on the merits on October 30, 2006; and both parties and their respective counsel having appeared; and it having been reрresented to the Court that an agreement on all outstanding issues had been reached, which agreement was read into the record, affirmed by each party in open Court and thereafter made binding upon each party.
(Emphasis added by hearing judge in her written findings of facts and conclusions in the present case).
The final recital in the Judgment of Absolute Divorce provided “that all prayers for relief by either party, except as provided in this Judgment of Absolute Divorce, are hereby denied.” Nevertheless, Respondent informed Kruger on 9 December 2006 that he had asked Karen Doherty, another attorney, to become involved in the case and that she would be reviewing Mr. Snowden’s mental health records. Kruger responded that the case was resolved and, thus, the Agreement required Respondent to destroy or return the medical records and “demanded an immediate explanation” for Respondent’s continued retention of them. Respondent did not reply timely to Kruger’s demand. According to Respondent’s testimony before the hearing judge in the present case, he believed there remained unresolved issues because Mr. Snowden had not allowed Ms. Snowden to purchase his interest in the marital home, as provided for in the Judgment of Absolute Divorce. A series of motions filed by each party and unanswered letters from Kruger to Respondent ensued. Judge McCormick summarized these events as follows:
In January and February 2007, Respondent filed motions relating to Mrs. Snowden’s efforts to complеte a buyout of Mr. Snowden’s interest in the marital home. In a January 26, 2007 letter, Mr. Kruger suggested that the parties select an appraiser to value the home. Respondent accepted this proposal by handwritten note on January 26,2007.
On February 27, 2007, Respondent filed an Emergency Motion to Enforce Settlement Agreement. According to the motion, settlement on the marital home was to have*89 taken place that day, but Mr. Snowden had not yet signed or produced the deed.
On March 4, 2007, Mr. Kruger wrote a letter to Respondent discussing marital bills, equity in the marital home and the signing of the deed. At the end of the letter, Mr. Kruger made another request, advocating the return of Mr. Snowden’s records. Again on April 14, 2007, Mr. Kruger wrote to Respondent, addressing money issues and difficulties stemming frоm the Judgment of Divorce. At the end of that letter, Mr. Kruger reiterated his plea to have Mr. Snowden’s medical records returned. On May 18, 2007, Mr. Kruger made another demand to have the documents provided under the Confidentiality Agreement; and again Respondent failed to respond.
On August 17, 2007, a Motion to Join Charles Rand as a Third Party Defendant was filed in the Snowden v. Snow-den litigation. The asserted basis for this motion was Respondent’s refusal to abide by the terms of the Confidentiality Agreement. That motion was denied and followed by a Motion for Contempt and to Enforce Confidentiality Agreement, wherein Mr. Snowden was named as the sole defendant.
(internal citations omitted).
On 18 November 2007, Respondent finally responded to Kruger’s letters requesting compliance with the Agreement and returned Mr. Snowden’s medical records. In that lеtter, “Respondent claimed that he was not satisfied that the referenced matter had reached ‘finality.’ Respondent suggested that the medical records be placed in the Court registry due to the pending litigation in Chesters v. Snowden.”
On 12 December 2007, Respondent sent a letter to Kruger enclosing sworn statements from both Sampeck and Doherty stating that they had not retained copies of Mr. Snowden’s mental health records.
On 29 February 2008, Master Charles Cockerill of the Circuit Court dénied Mr. Snowden’s contempt motion against Respondent and request for attorney's fees. At the motions hearing on 11 February 2008, Master Cockerill, in his oral findings and recommendations, stated that he denied the contempt motion because Respondent had returned the records to Kruger.
The hearing judge in the present case found, by clear and convincing evidence, that the pаrties resolved all outstanding issues in Snowden v. Snowden on 30 October 2006 when they placed an agreement on the record and therefore a “ ‘final disposition’ of the issues to which the confidential Priory Hospital records related” was reached on 19 December 2006 when the Circuit Court entered the Judgment of Absolute Divorce. Judge McCormick did not find credible Respondent’s claim that child support remained an open issue. She found further that, pursuant to the Agreement and the 11 January 2006 order signed by Judge Harrington, the mental health records were available to Respondent and Ms. Snowden solely for “review in connection with issues of alimony and spousal support” and not for use in connection with any outstanding child support dispute. Respondent “never raised the issue of child support as a justification for keeping the
Finally, the hearing judge found there was clear and convincing evidence that Respondent’s “primary motive for retaining the confidential Priory Hospital records of Martin Snowden after October 30, 2006 was to have the records available for review and use as evidence in connection with his separate representation of Mrs. Snowden in the Chesters v. Snowden case.” Judge McCormick found this proposed use “was beyond thе scope permitted by Judge Harrington’s Order in Snowden v. Snowden and in violation of the terms of the Confidentiality Agreement executed pursuant to that court order.”
Conclusions of Law
Despite her findings of fact, the hearing judge concluded that Respondent did not violate MRPC 4.4(a) by attempting “to use a method of obtaining evidence that the lawyer knows violates the legal rights of another person.” Judge McCormick concluded that “Respondent did not obtain or attempt to obtain the mental health treatment records illegally or in any attempt to violate the legal rights of Mr. Snowden. When the records were obtained, Respondent was acting in furtherance of his client’s divorce case.”
She resolved, however, that Respondent engaged in conduct prejudicial to the administrаtion of justice in violation of MRPC 8.4(d) by retaining the mental health records beyond the authorized time and events stated in the Confidentiality Agreement and by failing to respond to repeated reasonable requests from Kruger for their return. The hearing judge reasoned that:
*92 Respondent retained his copy of the confidential records long after the conclusion of the trial-level proceedings and the final disposition of the issues to which the records pertained. Judge Harrington’s January 11, 2006 Order required a Confidentiality Agreement which limited dissemination of records only to counsel and experts scheduled to testify on issues of alimony and need for support. Respondent was prohibited from using Mr. Snowden’s mental health treatment records for any other purpose. Respondent’s explanation that the records were necessary to determine child support as an open issue does not fit within the narrow permission granted in the January 11, 2006 Order.
This Court finds by clear and convincing evidence that the Respondent’s primary motivation in retaining the records was his recognition it would be difficult to obtain these same records for the Chesters v. Snowden case. Indeed, much was difficult between these parties and counsel. Both parties’ counsel threatened each other with being named in lawsuits. Nonetheless, Respondent’s actions prove that the records were not going to be easily returned, given the initial difficulty in obtaining them.
This situation was compounded by the Respondent’s silence in the face of four written requests for thе return of the records. Further, if Respondent’s motivation was to address child support in the future, there would have been correspondence or communication to that effect and Court assistance would have been utilized.
Respondent’s failure to comply with Paragraph 3(e) of the Confidentiality Agreement and his failure to respond to opposing counsel’s repeated requests for compliance over a period of several months demonstrated a “lack of civility, good manners and common courtesy,” which “tarnishes the image of what the bar stands for.” Attorney Grievance Commission v. Link,380 Md. 405 , 426,844 A.2d 1197 , 1210 (2004) (citing In the Matter of McAlevy,69 N.J. 349 ,354 A.2d 289 , 291 (1976)).
Certainly the refusal to respond to legitimate requests by counsel with respect to the return of the medical records*93 does not equate with the bad behavior in the Link and McAlevy cases. The Court acknowledges Respоndent’s sentiment that he did not want to engage in an expensive and probably useless paper campaign. However, the refusal to timely return the records without any explanation constitutes conduct that is prejudicial to the administration of justice. The records were obtained in good faith and in the zealous representation of a client’s case. The Court accommodated the Respondent’s need in the divorce case by permitting the Respondent to see those highly private records subject to a Confidentiality Agreement crafted by the parties themselves. To then retain those records in violation of the Court sanctioned Confidentiality Agreement is conduct prejudicial to the administration of justice.
(Emphasis in original).
Standards of Review
“ ‘This Court has original and complete jurisdiction over attorney discipline proceedings’ in Maryland.” Attorney Griev. Comm’n v. Thomas,
The Exceptions and Recommended Sanction
Petitioner took no exceptions to the hearing judge’s findings or conclusions. As to sanction, Petitioner urges this Court to issue a reprimand to Respondent, in light of Respondent’s refusal to acknowledge the wrongful nature of his conduct, his
Respondent filed written exceptions to Judge McCormick’s findings of facts and conclusions of law. His first and third exceptions are directed to the conclusion that his failure to respond to Kruger’s many requests for the return of Mr. Snowden’s medical records constituted conduct prejudicial to the administration of justice. Respondent argues that presently an attorney in Maryland does not have an enforceable ethical duty to make timely answer to letters of opposing counsel. Respondent contends the situation in this case better is left to the relevant dispute resolution procedures provided for in the Maryland Rules. Respondent foresees adoption of the conclusions of law of the hearing judge as opening “a bottomless Pandora’s Box.” “Every day-to-day” litigation decisions would be subjected to the possibility of an ethics violation. He contеnds that neither Bar Counsel nor the hearing judge “offered any explanation how the Respondent’s conduct prejudiced the administration of justice.”
Respondent’s second exception is to the conclusion that Respondent’s retention of the medical records beyond the time specified in the Agreement was prejudicial to the administration of justice. According to Respondent, his failure to respond to opposing counsel and retention of the records was, in the context of the contentious nature of the divorce litigation, “ordinary.”
Respondent’s fourth exception is to the hearing judge’s finding that his primary motive for retaining the records was to have the records available for use in the Chesters litigation. He argues that his “true motivе was irrelevant, unaccompanied as it was by unlawful or unethical actions, actual violation of Judge Harrington’s Order or the Confidentiality Agreement, or violation of the confidentiality of the subject records.”
Finally, Respondent takes exception to the hearing judge’s conclusion that he violated Maryland Rule 16-701. In reaching her conclusion that Respondent violated MRPC 8.4(d), the hearing judge stated that Respondent engaged in professional
Analysis of Remaining Exceptions
Essentially we are left to resolve Respondent’s exceptions to the hearing judge’s conclusion relative to the MRPC 8.4(d) charge. Based upon our de novo review, we conclude that Respondent did not violate MRPC 8.4(d). The hearing judge found that Respondent’s failure to return timely the records without any explanation to opposing counsel for the delay and the retention of the records in violation of the Agreement was conduct prejudicial to the administration of justice. Although we do not condone Respondent’s conduct in this case, we are not prepared to declare, on this record, that
Generally we have found a broad range of conduct to be prejudicial to the administration of justice. See Attorney Griev. Comm’n v. Link,
Dishonest conduct by an attorney also may be prejudicial to the administration of justice. In Garcia, we held that disbarment was the proper sanction for, inter alia, a violation of MRPC 8.4(d) where the attorney filed a false document with Federal immigration authorities. Garcia, op. at 511-13, 528-29,
We also have some found some disruptive and discourteous behavior, usually committed prеdominantly in court, involving court personnel, or the judicial process during the representation of a client, to be prejudicial to the administration of justice. For example, in Attorney Griev. Comm’n v. Alison,
An attorney’s inaction in a court case can be prejudicial to the administration of justice. In Attorney Griev. Comm’n v. Tinsky,
Even the willful failure to pay taxes may constitute a violation of MRPC 8.4(d). In Attorney Griev. Comm’n v. Tayback,
In Kalil, the respondent was a non-practicing attorney who worked for the United States Department of Agriculture. As a result of a suspension from his employment, he filed a claim with the Merit Systems Protection Board (“MSPB”). Unhappy with the result obtained, he proceeded to place several telephone calls to two Administrative Law Judges on the MSPB involved with his case. Kalil, at 362-64,
Taking into account the span of conduct in the cases discussed here, Respondent’s conduct does not strike us as rising to the level of the misconduct found in the cases where violations of MRPC 8.4(d) were found. Petitioner did not adduce any evidence showing that Respondent’s delay in responding to opposing counsel’s letters or in returning the medical records late resulted in anything approaching prejudice to the administration of justice. A delay alone will unlikely be sufficient to show prejudice, absent any actual and substantial harm flowing from the delay. In Alison II, we declined to find that an attorney’s comments that lead to a mistrial were prejudicial to the administration of justice.
We can find no prior instance where we held that the failure to respond to opposing counsel or the retention of documents beyond a time or event specified in an agreement between the parties amounted to conduct prejudicial to the administration of justice. Before Bar Counsel’s involvement in the present case, Kruger filed a motion in the Circuit Court seeking to obtain Respondent’s copy of the medical records. Rеspondent returned the records to Kruger before the trial court could rule on that motion. Conduct requiring a party to file a motion to have the court intercede to resolve an asserted
In Attorney Griev. Comm’n v. Link,
Although Respondent’s conduct in the instant case was discourteous, contrary to the parties’ Agreement, and occurred in the course of representing his client, it is not sanctionable behavior under the present version of MRPC 8.4(d). Respondent’s conduct in this case seems to have been instigated as a means to ovеrcome a tactical error in framing the settlement of divorce issues. Although a misguided initiative, it did not reach a degree where it became prejudicial to
Lest the victor’s laurel here on Respondent’s brow be thought to be vindication оf his conduct, we disabuse any reader of that perception. In Link, we noted that “attorneys are required to act with common courtesy and civility at all times in their dealings with those concerned with the legal process....” Link,
[t]his Court considers the respondent’s conduct in this case to be most inappropriate and unfortunate, and it is conduct that we do not condone. Nevertheless, it being neither criminal nor conduct of the kind that harm or potential harm flowing from it is patent, we hold that it is not conduct that is prejudicial to the administration of justice and, thus, is not sanctionable.
Id. at 429,
At the present time, however, much of the Report remains hortatory. As a result, we have little choice but to conclude that the evidence that Bar Counsel presented was insufficient to demonstrate that Respondent violated MRPC 8.4(d). The petition for disciplinary action is dismissed.
IT IS SO ORDERED.
Notes
. MRPC 4.4(a) provides:
In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that the lawyer knows violate the legal rights of such a person.
Petitioner indicated at the evidentiary hearing before Judge McCormick that it alleged that Respondent violated the second part of MRPC 4.4(a), “a lawyer shall not ... use methods of obtaining evidence that the lawyer knows violate the legal rights of [a third person].”
. MRPC 8.4(a) and (d) provide:
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Maryland Lawyers’ Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(d) engage in conduct that is prejudicial to the administration of justice....
. Petitioner argued to the hearing judge that Respondent’s attempt to violate MRPC 4.4(a) constituted a violation of MRPC 8.4(a). This was the sole predicate for the alleged MRPC 8.4(a) violation.
. This Order was entered on the docket on 23 January 2006.
. According to the Petition for Disciplinary or Remedial Action, the case captioned Rosemary Chesters, et al. v. Alison Welles Snowden, Case No. 269865-V, in the Circuit Court for Montgomery County, was a collateral case in which Respondent represented Ms. Snowden against members of Mr. Snowden’s family living in England. Petitioner alleges that Mr. Snowden was not a party to that action.
. There is no indication in the record that Respondent actually used or attempted to use the records in the Chesters case.
. Rule 16.701(i) provides:
“Professional misconduct” or “misconduct” has the meaning set forth in Rule 8.4 of the Maryland Lawyers’ Rule of Professional Conduct, as adopted by Rule 16-812. The term includes the knowing failure to respond to a request for information authorized by this Chapter without asserting, in writing, a privilege or other basis for such failure.
. The hearing judge did not render a conclusion of law with regard to the alleged MRPC 8.4(a) violation. Presumably, because she concluded that Respondent did not violate MRPC 4.4(a), she concluded impliedly that he did not violate MRPC 8.4(a). See supra note 3.
Judge McCormick found that there was insufficient evidence to show that Respondent violated MRPC 4.4(a). Petitioner did not file an exception to this finding, and we accept the finding. Under MRPC 4.4(a), Bar Counsel charged Respondent with "us[ing] methods of obtaining evidence that the lawyer knows violates the legal rights of such a person.” Respondent obtained the medical records legally. Although he may have retained the records in violatiоn of the Confidentiality Agreement, MRPC 4.4(a) does not cover such conduct. Therefore, we agree that Respondent did not violate MRPC 4.4(a).
. We shall refer to this case as “Alison II” as Mr. Alison was the subject of an earlier disciplinary proceeding in Attorney Griev. Comm’n v. Alison,
. The Preamble to the Maryland Rules of Professional Conduct provides that:
A lawyer’s conduct should conform to the requirements of law, both in professional service to clients and in the lawyer’s business*103 and personal affairs. A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is also a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal processes.