Attorney Grievance Commission v. Rand

HARRELL, J. 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) 1 and 8.4(a) and (d) (Misconduct) 2 of the Maryland Rules of Professional Conduct (“MRPC”). 3 We referred the matter to the Honorable Mary Beth McCormick of the Circuit Court for Montgomery County to ⁸⁶ conduct an evidentiary hearing and render findings of fact and recommended conclusions of law with regard to the alleged violations. Judge McCormick held the evidentiary hearing on 12 February 2009. On 25 March 2009, she filed written Findings of Fact and Conclusions of Law, dated 20 March 2009.

The Findings of Facts Respondent was admitted to practice 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 various 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. 4 The court also ordered that “counsel shall draft a Confidentiality Agreement to limit dissemination of records only to counsel and experts scheduled to testify on issues of alimony and need for support. Plaintiff is prohibited from using records for any other purposes.” ⁸⁷ Respondent drafted the Confidentiality Agreement (sometimes referred to hereafter as the “Agreement”). The Agreement provided that the Priory Hospital records “are recognized as being highly private, personal and confidential in nature and any dissemination of such is to be carefully limited, avoided and protected by Plaintiff and her counsel.” Paragraph 3(e) of the Agreement detailed Respondent’s obligations with respect to Mr. Snowden’s mental health records at the conclusion of the divorce litigation: 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 attachments 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 represented 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 complete 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 from 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 letter, “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.” 5 He included a subpoena duces tecum for Mr. Snowden to produce the medical records for use in the Chesters litigation. Respondent ⁹⁰ also advised Kruger that the only other copies of the records were provided to the vocational expert, Kathleen Sampeck, and Ms. Snowden. At the evidentiary hearing before Judge McCormick, Respondent testified that his motivation for sending the 13 November 2007 letter and returning the records was that Bar Counsel had contacted him with regard to Mr. Snowden’s medical records.

He further testified that he determined, at that point, that “these records are not worth it [presumedly referring to the motions filed in the divorce case and Bar Counsel’s investigation].” 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 parties 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 ⁹¹ records as a response to any of Mr. Kruger’s letters during the period from December 2006 to May 2007.” Judge McCormick found that Respondent offered that justification only after opposing counsel filed a motion seeking to compel Respondent to comply with the Agreement. 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 the 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.” 6 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 administration 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 the 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 Respondent’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, 409 Md. 121, 147 , 973 A.2d 185, 200 (2009) (quoting Attorney Griev. Comm’n v. Ugwuonye, 405 Md. 351, 368 , 952 A.2d 226, 235 (2008)). “We accept a hearing judge’s findings of fact unless we determine that they are clearly erroneous.” Attorney Griev. Comm’n v. Guida, 391 Md. 33, 50 , 891 A.2d 1085, 1095 (2006) (citing Attorney Griev. Comm’n v. Stolarz, 379 Md. 387, 397 , 842 A.2d 42, 47 (2004) and Attorney Griev.

Comm’n v. Culver, 371 Md. 265, 274 , 808 A.2d 1251, 1256 (2002)). “All proposed conclusions of law by the hearing judge, however, are subject to de novo review by this Court.” Thomas, 409 Md. 121, 147 , 973 A.2d 185, 201 (citing Ugwuonye, 405 Md. at 368 , 952 A.2d at 236 ). 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 ⁹⁴ substantial experience as a practitioner, and the absence of a prior disciplinary record. 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 contends 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 motive 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 ⁹⁵ misconduct as defined in Rule 16-701(i). 7 Notwithstanding the hearing judge’s reference to Rule 16-701, she did not find a violation of that Rule.

The proper understanding of this reference is that she referred to Rule 16 — 701(i) as a way of responding to Respondent’s argument that the charged conduct was not sanctionable. As a definitional provision, Rule 16-701 is not capable of being “violated.” Thus, we overrule this exception summarily. Analysis of Remaining Exceptions 8 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 ⁹⁶ this incident is sanctionable conduct under the MRPC 8.4(d). As a result, we sustain Respondent’s relevant exceptions. Generally we have found a broad range of conduct to be prejudicial to the administration of justice.

See Attorney Griev. Comm’n v. Link, 380 Md. 405, 427 , 844 A.2d 1197, 1210 (2004). In general, an attorney violates MRPC 8.4(d) when his or her conduct impacts negatively the public’s perception or efficacy of the courts or legal profession. Attorney Griev.

Comm’n v. Garcia, 410 Md. 507, 520 , 979 A.2d 146, 154 (2009); Attorney Griev. Comm’n v. Rose, 391 Md. 101, 111 , 892 A.2d 469, 475 (2006) (“conduct which tends to bring the legal profession into disrepute ... is ... prejudicial to the administration of justice”); Link, 380 Md. 405, 427 , 844 A.2d 1197, 1211 (“conduct that impacts on the image or perception of the courts or the legal profession and that engenders