Attorney Grievance v. Fineblum

Attorney Grievance Commission of Maryland v. Charles Allan Fineblum, Misc. Docket AG No. 3, September Term, 2020 ATTORNEY MISCONDUCT — DISCIPLINE — SUSPENSION Respondent, Charles Allan Fineblum, violated Maryland’s Rules of Professional Conduct 1.4, 1.15, 5.3, 5.4, 5.5, and 8.4, along with Maryland Rules 19-407 and 19-408. These violations arose from his delegation of significant responsibilities in personal injury matters to an independent paralegal firm; his lack of supervision over that paralegal firm and his clients’ cases; his sharing of fees with that firm; and his failure to properly manage his attorney trust account. In light of the application of several mitigating factors, a suspension of six months and one day is the appropriate sanction for Respondent’s misconduct.

Circuit Court for Baltimore County Case No. C-03-CV-20-001260 Argued: February 1, 2021 IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG No. 3 September Term, 2020 ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. CHARLES ALLAN FINEBLUM Barbera, C.J., McDonald Watts Hotten Getty Booth Biran JJ. Opinion by Barbera, C.J. Filed: April 26, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-04-26 10:40-04:00 Suzanne C. Johnson, Clerk On March 18, 2020, Petitioner, the Attorney Grievance Commission, acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action against Respondent, Charles Allan Fineblum. The Petition concerned Respondent’s alleged failure to oversee the work of an independent paralegal firm, the improper sharing of legal fees with that firm, his lack of involvement in certain personal injury clients’ cases, and the mishandling of his attorney trust account.

Bar Counsel alleged that Respondent’s conduct constituted violations of Maryland Attorneys’ Rules of Professional Conduct1 (“MARPC”) 1.1 (Competence), 1.4(a) and (b) (Communication), 1.15(a) and (b) (Safekeeping Property), 5.3(a), (b), and (c) (Responsibilities Regarding Non-Attorney Assistants), 5.4(a) (Professional Independence of an Attorney), 5.5(a) (Unauthorized Practice of Law), and 8.4(a), (c), and (d) (Misconduct), in addition to Maryland Rules 19-407(a)(3), (a)(4), and (b) (Attorney Trust Account Record-Keeping) and 19-408 (Commingling Funds). Bar Counsel also asserted that Respondent violated the prior versions of those rules.2 1 At the beginning of the period of alleged misconduct, these rules were part of the Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) and were codified in an appendix to Maryland Rule 16-812. Effective July 1, 2016, the MLRPC were renamed the Maryland Attorneys’ Rules of Professional Conduct and were recodified in Title 19 of the Maryland Rules. See Maryland Rules 19-300.1 et seq.

As there is no substantive difference between the two codifications of the rules, we shall employ throughout this opinion the simpler version of the charged rule violations, as set forth in the MLRPC. Consequently, where applicable we refer to charged violations, including those that are alleged to have occurred after recodification, by the form used in the MLRPC, e.g., “Rule 1.1” rather than “Maryland Rule 19-301.1.” 2 In some instances, it is unclear based upon the record before us whether Respondent’s conduct violated the current version of a rule, the version in place prior to July of 2016, or both. However, for the purpose of determining the proper sanction it is irrelevant which codification was in place at the time of the misconduct. On March 20, 2020, this Court designated the Honorable John J. Nagle, III of the Circuit Court for Baltimore County to serve as the hearing judge.

On May 21, 2020, Bar Counsel served Respondent via authorized counsel with the following: a Writ of Summons issued on March 23, 2020 by the Circuit Court for Baltimore County; the Order of the Court of Appeals; and the Petition for Disciplinary or Remedial Action. On June 22, 2020, Respondent filed an Answer to Petition for Disciplinary or Remedial Action. The circuit court held the hearing remotely on September 9, 2020 using Zoom for Government. After the parties made their opening statements, they submitted a Joint Statement of Stipulated Facts.

Bar Counsel did not call any witnesses and rested Petitioner’s case-in-chief after submitting twenty-five of its own exhibits, including a transcript of Respondent’s statement under oath, given on May 17, 2019. The hearing judge then heard from the following character witnesses who appeared on Respondent’s behalf: the Honorable Sally C. Chester of the District Court of Maryland sitting in Baltimore County, Lee Jacobson, Esq., and C. Kelly Gordon, one of Respondent’s former clients. The witnesses testified to Respondent’s integrity, honesty, and dedication to the practice of law. Respondent also testified.

He stated that although he never knowingly violated any ethical rules, he accepted responsibility for his shortcomings and expressed regret and contrition for his actions. After the hearing, Petitioner withdrew the charge that Respondent’s conduct violated Rule 1.4(a), as well as the charges that Respondent’s conduct prior to July 1, 2016 violated the predecessors to current Maryland Rules 19-301.15(a) and (b), 19-407(a)(3), 2 (a)(4), and (b), and 19-408. On October 23, 2020, Judge Nagle issued his Statement of Findings of Fact and Conclusions of Law. On November 12, 2020, Petitioner filed its Recommendation for Sanction, recommending that Respondent be indefinitely suspended.

That same day Respondent filed his Exceptions and Recommendations, in which he advocated for a reprimand. We adopt in large part the hearing judge’s findings of fact and conclusions of law. Based on Respondent’s rule violations found herein, as well as the aggravating and mitigating factors we have identified, we suspend Respondent for a period of six months and one day. I. The Hearing Judge’s Findings of Fact We summarize here the hearing judge’s findings of fact, which are supported by clear and convincing evidence.

Background Respondent was admitted to the Maryland Bar on January 14, 1972. After clerking for the Honorable Marshall Levin on the Supreme Bench of Baltimore City, Respondent served in the Office of the Public Defender before entering private practice full time. During the relevant period, from 2008 through 2018, and continuing through today, Respondent has practiced as a sole practitioner in Baltimore County, focusing primarily on “auto negligence, domestic work, DUI, [and] DWI” cases. Since his admission, Respondent has had no history of attorney discipline. 3 Respondent’s Relationship with RT & Associates In June of 2008, William Ronald Tilghman formed a close corporation known as RT & Associates, Inc. (“RT & Associates”) with the express purpose of performing paralegal services.

Tilghman ran RT & Associates out of his home in Cockeysville, Maryland. During the relevant time frame of 2008 through 2018, neither Tilghman nor the other employees of RT & Associates were licensed to practice law in any jurisdiction. Furthermore, the hearing judge found that there was “no evidence that the Respondent ever affirmatively held Tilghman or anyone at RT & Associates out as attorneys or affirmatively represented to anyone that they were licensed to practice law in Maryland or elsewhere.” The hearing judge found that “[b]eginning at or about the time RT & Associates was formed in 2008 and continuing through 2018, Respondent utilized RT & Associates as an independent contractor to provide services in the processing and resolution of personal injury cases.” Respondent acknowledged during Bar Counsel’s investigation that he delegated significant responsibility to RT & Associates regarding client communications and pre-litigation case management. Respondent did not, however, have a formal written agreement with RT & Associates.

Respondent’s “understanding of the agreement was that [RT & Associates] would work up cases and [Respondent’s] name would be listed as the attorney on the case.” In correspondence sent to Bar Counsel during the investigation, Respondent described the general duties and responsibilities of RT & Associates as follows: [RT & Associates] performed such paralegal functions as client intake, preparing letters of representation for my signature, ordering and 4 compiling police reports and medical records, scheduling clients for medical treatment, processing PIP [i.e. personal injury protection] claims, and working with responsible insurance carriers to resolve property damage claims, rental cars, repairs, etc. He also helped to prepare settlement demands and assisted in the resolution of bodily injury claims. By outsourcing these tasks, I was able to obtain support services and resources similar to those of a much larger firm. This has allowed me to focus more of my time on the preparation of cases for trial and similarly substantive tasks. *** Although he was careful to identify himself as my legal assistant, Mr. Tilghman had extensive client communication to obtain information regarding the facts of the underlying accident, the completion of PIP applications, coordinating medical treatment, and handling property damage, repairs and rental car needs. I found his assistance to be invaluable in assuring prompt service to the clients in the wake of an automobile accident.

During his statement under oath, Respondent admitted that RT & Associates sometimes settled cases without his involvement. Of those cases, Respondent stated that he was “mostly” aware of the clients, but did not know about “some” of them. He also admitted that RT & Associates referred “75 to 80 percent” of his personal injury clients to him. Respondent explained that RT & Associates would have a client matter “in their office, but everything was under [his] name as the sole attorney on the case.” Respondent also stated that clients would generally contact RT & Associates prior to having contact with himself.

According to Respondent, although the staff of RT & Associates occasionally worked in Respondent’s law office, they usually worked off site. The staff maintained their own set of client files and provided Respondent with copies thereof. Respondent also authorized the staff at RT & Associates to use Respondent’s letterhead at their discretion, 5 and he admitted that he often permitted them to sign his name to correspondence that he had not reviewed. Respondent’s Payments to RT & Associates Respondent did not have a formal fee arrangement with RT & Associates.

He also did not receive periodic billing invoices or statements of services rendered. Rather, his practice was to compensate RT & Associates out of his trust account with the proceeds of his clients’ personal injury claims, “taking into account the extent of the support which [Tilghman] and his staff provided and the nature of the case itself.” He admitted that prior to the investigation, in calculating what he believed to be the appropriate compensation to RT & Associates, he would also take into account the outcome of the case. After consultation with his counsel in this proceeding, Respondent claims that he has abandoned this practice, and has not paid RT & Associates directly out of his trust account since the summer of 2018. During the course of the investigation, Respondent produced to Bar Counsel a schedule of the personal injury client matters in which his clients recovered on their claims from 2014 through 2018.3 For each matter, the table listed the settlement amount, the attorney’s fee, and the support expense paid to RT & Associates, which was deducted from the total attorney’s fee rather than charged to the client directly.

For almost every client matter listed the support expense was greater than the amount of the attorney’s fee retained The hearing judge described the schedule as running “from 2014 through 2017.” 3 Although the precise end date of the table is unclear, it includes several pages of entries for 2018. 6 by Respondent. During his statement under oath, Respondent explained that this was because “the staff [at RT & Associates] normally in these cases performed mostly all of the work relative to the case.” Respondent’s tax filings show that between 2013 and 2017, Respondent: (i) paid RT & Associates, and (ii) reported profits or losses following deduction of expenses, as follows: Amount Respondent Respondent’s Profits Paid RT & Associates or Losses 2013 $141,218.00 $23,140.00 2014 $174,918.00 ($7,051.00) 2015 $221,473.00 ($11,810.00) 2016 $311,773.00 $2,459.00 2017 $308,384.00 $26,785.00 Sum $1,157,766.00 $33,523.00 Representation of Jeron Morris On December 28, 2017, Jeron Morris was involved in a motor vehicle accident in Baltimore City. The following day he attempted to call Respondent’s law office and was connected to Tilghman. They spoke about the injuries Morris sustained in the accident, and Morris provided Tilghman with his insurance information and that of the other driver.

Following the call, RT & Associates faxed a Health Insurance Portability and Accountability Act (HIPAA) release form and a Retainer Agreement to Morris. Morris then signed and returned the documents. The heading on the Retainer Agreement listed Respondent’s name, and the document identified Respondent as Morris’s “attorney to 7 prosecute a claim for [p]ersonal injuries” against the other driver involved in the accident. No other attorney’s name appears on the agreement.

When Morris signed the Retainer Agreement on December 29, 2017, he became Respondent’s client until Morris ultimately terminated the relationship approximately forty days later. On January 26, 2018, Morris signed a document titled “Dismissal of Counsel,” which indicated that he was discharging Respondent as his attorney in relation to the motor vehicle accident. That same day, Morris also retained The Killian Law Group, a law firm in Owings Mills, to represent him in the action going forward. On or around February 6, 2018, Alex Binder, Esquire of The Killian Law Group contacted Respondent, informing Respondent that his firm was replacing Respondent as Morris’s counsel.

Respondent only saw the discharge notice signed by Morris after Respondent’s conversation with Binder. Thereafter, on February 8, 2018, Respondent transmitted his client file in the Morris matter to Binder. During his statement under oath prior to the hearing, Respondent indicated that he did not know how Morris had contacted RT & Associates. Respondent never met with or spoke to Morris during the period of representation, but he also never refused to communicate with him.

Morris never attempted to communicate directly with Respondent prior to terminating the representation. On or around February 15, 2018, Morris filed a complaint against “Ronald Tilghman” with the Attorney Grievance Commission. In the complaint, he identified Tilghman as the “Paralegal of Charles A. Fineblum Attorney and Couselors [sic] at Law.” 8 That complaint caused Bar Counsel to initiate its investigation of Respondent and his relationship with RT & Associates.4 Respondent’s Trust Account Practices During the relevant period, Respondent maintained an attorney trust account at Bank of America. During the investigation, Bar Counsel subpoenaed the trust account records for January 2017 through January 2019.

Respondent admitted during his statement under oath prior to the hearing that he did not perform the requisite monthly reconciliations, as mandated by Maryland Rule 19-407(b). Respondent also admitted that the only written records he kept in relation to his trust account were his check stubs. From those stubs, he claimed that he could identify which clients’ funds remained in the trust account at the end of any given month. He admitted, though, that he could not account for every single cent in the trust account at month’s end.

He acknowledged that his reconciliation practices were not “perfect,” but he stated that he was working to fix the deficiencies. 4 At the hearing, Bar Counsel offered the complaint as an exhibit. As Morris did not appear at the hearing, Respondent’s counsel objected to its admission as inadmissible hearsay and an improper substitute for the live testimony of a complainant who failed to appear for trial. The hearing judge admitted the complaint not for the truth of its contents, but for the limited purpose of providing context for Respondent’s subsequent response to Bar Counsel and the ensuing investigation. In any event, the parties have stipulated to the pertinent facts in relation to Respondent’s representation of Morris. 9 Respondent further admitted that he would often leave earned attorney’s fees in his trust account for “a period of days or weeks.”5 He also did not know the precise amount of his own money remaining in the trust account at any given time.

He apologized for the practice during his statement under oath, and later indicated that he had ended it “well over a year” prior to the hearing, which took place on September 9, 2020.

II

The Hearing Judge’s Conclusions of Law The hearing judge first found that Respondent’s conduct did not violate Rule 1.1. The hearing judge then found that Respondent had violated Rules 1.4(b); 5.3(a)–(c); 5.4(a); 5.5(a); 8.4(a) and (d);6 1.15(a) and (b); and Maryland Rules 19-407(a)(3), (a)(4), and (b); and 19-408.7 Respondent excepted to some of the hearing judge’s findings of fact and conclusions of law. Bar Counsel excepted to none. 5 Respondent explained during his statement under oath that he had adopted this practice as a result of being advised early on in his career never to allow an escrow check to bounce. 6 The hearing judge concluded that there was insufficient evidence to find that Respondent had violated Rule 8.4(c). 7 The hearing judge dealt separately with the pre- and post-July 2016 versions of the rules. As Petitioner withdrew its claims that Respondent violated the pre-July 2016 versions of Rule 1.15, and Maryland Rules 19-407 and 19-408, the hearing judge did not evaluate those rules.

Additionally, although Petitioner had not withdrawn its charge that Respondent also violated the MLRPC version of Rule 1.4(b), the hearing judge did not appear to make any finding as to whether Respondent violated that version of the rule. 10 III. Standard of Review “This Court has original and complete jurisdiction in attorney disciplinary proceedings and ‘conducts an independent review of the record.’ The hearing judge’s findings of fact are left undisturbed unless those findings are clearly erroneous or either party successfully excepts to them.” Attorney Grievance Comm’n v. Ambe, 466 Md. 270, 286 (2019) (citations omitted). “The hearing judge’s factual findings are not clearly erroneous if they are supported by ‘any competent material evidence.’ We review the hearing judge’s conclusions of law without deference.” Id. (citations omitted).

IV

Discussion Respondent’s Exceptions Respondent makes five exceptions to the hearing judge’s findings of fact and conclusions of law. First, Respondent asserts that Bar Counsel failed to present any evidence, let alone clear and convincing evidence, that Respondent’s clients lacked awareness of his use of the support staff at RT & Associates. Respondent argues that Petitioner did not provide any testimony or evidence in relation to any of Respondent’s clients to establish that they lacked awareness of Respondent’s relationship with RT & Associates or the role that the firm played in their representation. Respondent also points to the complaint filed by Jeron Morris, in which Morris clearly acknowledges that he understood that Tilghman was acting 11 as Respondent’s paralegal.

Therefore, Respondent contends that Petitioner has not satisfied its burden of establishing that Respondent violated Rule 1.4(b). Respondent next argues that the wholesale repudiation of Respondent’s outsourcing of paralegal services is unwarranted and not mandated by the rules of professional conduct. Respondent claims that the rules recognize that an attorney may contract with non- employees for the provision of certain services, and there is no requirement that such services be performed on site—as evidenced by the realities of the ongoing COVID-19 pandemic. Thus, there is nothing inherently suspect or improper with Respondent’s engagement with RT & Associates as an independent contractor of paralegal services.

Moreover, Respondent contends that most of the services that RT & Associates provided to his clients were appropriate, non-attorney functions, as recognized by this Court’s prior caselaw. Therefore, Respondent argues that his violation of Rule 5.3 should be limited to those instances in which RT & Associates “settled cases with claims adjusters without [Respondent’s] oversight.” Respondent further claims that despite his occasional supervisory shortcomings, he never condoned or believed that RT & Associates was engaging in the unauthorized practice of law. Bar Counsel stipulated that the staff at RT & Associates did not need a law license “in order to assist a supervising attorney in communicating terms of representation to clients, in client intake, or in the negotiation and/or settlement of personal injury cases.” Additionally, Respondent finalized virtually all of the settlements himself. Respondent likens his employment of RT & Associates to the delegation of similar tasks 12 to in-house paralegals at high-volume personal injury firms, and he contends that personal injury cases often involve many routine tasks.

Where more strategical considerations were involved or more legal experience necessitated, Respondent would step in. Therefore, Respondent excepts to the hearing judge’s legal conclusion that he violated Rule 5.5. Respondent next takes issue with the hearing judge’s conclusion that he improperly shared fees with RT & Associates. He argues that his payments to RT & Associates reflected compensation for all of the work that the three to six employees of the firm conducted for him throughout the course of the given year, and that it is normal for such expenses to exceed the net income of any one attorney in the context of a high-volume personal injury practice.

Respondent contends that a review of the payments made to RT & Associates does not reveal any express pattern of a percentage-based fee sharing practice, and that he appropriately categorized those payments as separate expenses on his tax returns. Respondent also argues that paying RT & Associates out of the earned attorney’s fees in his trust account does not violate any ethical rules, as he is free to dispense with his earned fees as he sees fit. As such, Respondent excepts to the hearing judge’s legal conclusion that he violated Rule 5.4. Finally, Respondent asserts that Bar Counsel has failed to provide clear and convincing evidence of any occasion on which Respondent improperly commingled his funds with that of his clients.

He contends that Bar Counsel bears the burden of providing evidence of specific transactions that would show the amounts of commingled funds, the period for which they were commingled, the frequency with which Respondent did so, and 13 that none of the exceptions to the applicable rules apply. According to Respondent, his candid admission that he did not always immediately withdraw all of his earned fees in order to ensure that any escrow checks would not bounce does not provide sufficient detail to establish his violation of Rule 1.15 or Maryland Rule 19-408. With those exceptions in mind, we turn now to review the hearing judge’s conclusions of law. Rule 1.1 Competence Rule 1.1 provides that an attorney “shall provide competent representation to a client.

Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” The hearing judge found that this was not a case of lack of competent representation and that Respondent had not violated Rule 1.1. Pursuant to Maryland Rule 19-727(c), “Bar Counsel has the burden of proving the averments of the petition by clear and convincing evidence.” Although Respondent admitted that RT & Associates was responsible for handling much of his clients’ cases, including settlement in some instances, Petitioner did not put forth clear and convincing evidence of deficient representation. Petitioner did not show how any of the over 17,000 pages of case files that Respondent produced evidenced incompetent representation, and Petitioner did not call any witnesses to complain about the quality of the representation they received. Although Morris did file a complaint that included some allegations against Tilghman, for which Respondent could potentially bear responsibility, Morris did not 14 appear at the hearing, and that complaint was not offered or admitted at the hearing for the truth of its contents.

Bar Counsel also did not take exception to the hearing judge’s conclusion that Respondent did not violate Rule 1.1. We therefore agree with the hearing judge that Bar Counsel has not met its burden of establishing that Respondent’s conduct violated Rule 1.1. Rule 1.4(b) Communication Rule 1.4(b) provides that an attorney “shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” This rule “requires attorneys to communicate with their clients and keep their clients reasonably informed of the status of their case.” Attorney Grievance Comm’n v. Edwards, 462 Md. 642, 699 (2019). The hearing judge found that Respondent’s lack of communication with clients, including Morris, and his failure to inform them that non-attorneys at RT & Associates were effectively in charge of their representation constituted a violation of Rule 1.4(b).

To a large extent we agree with Respondent’s exception to this alleged violation, in that there is a lack of evidence before us regarding specific communications or failures to communicate. There is also no evidence in the record regarding what Respondent’s clients knew or did not know in relation to the role of RT & Associates with respect to their cases. It is true that the general pattern of representation described by Respondent during his statement under oath raises questions about the extent to which many of his clients may have made important decisions in their cases without Respondent’s involvement and 15 counsel. However, Bar Counsel failed to find answers to those questions by providing clear and convincing evidence regarding specific decisions made by specific clients.

The only client for which Bar Counsel has presented relevant information regarding a representation is Jeron Morris. However, Morris’s complaint shows that he understood that Tilghman was acting as Respondent’s paralegal and was clearly aware that Tilghman was actively working on his case. The documents Respondent provided to Bar Counsel in response to Morris’s complaint show that only preliminary steps were taken with respect to his case, including reaching out to the relevant insurance companies and informing them of Respondent’s representation of Morris. In a letter sent to Bar Counsel during the investigation, Respondent explained that “[b]eyond clerical tasks, Mr. Tilghman conducted the initial intake for [Morris], arranged for his medical treatment, began to compile information, and prepared an application for PIP benefits to Erie Insurance Company.” There is therefore no clear and convincing evidence that Morris made any decisions during Respondent’s representation of him that would have required Respondent’s prior explanation under Rule 1.4(b).

It is worth noting, however, that the letter sent to the other driver’s insurance company, which is on Respondent’s letterhead and is signed with his name, instructs the company to “contact my legal assistant, Ron Tilghman . . . to discuss settlement.” The record does not indicate whether any settlement discussions took place with respect to Morris’s claim during his representation by Respondent. However, such an approach to settlement would tend to be consistent with Respondent’s admission during his statement 16 under oath that RT & Associates sometimes settled clients’ claims without his involvement, and sometimes for clients of which he was not aware. Indeed, some of the documents that Respondent produced to Bar Counsel in relation to other clients similarly indicate that Tilghman should be contacted in relation to settlement discussions. Resolution of a claim through settlement is a serious decision for a client, and one that clearly necessitates prior communication with an attorney under Rule 1.4(b).

Cf. Attorney Grievance Comm’n v. Planta, 467 Md. 319 , 349–50 (2020) (finding Rule 1.4(b) violations where the attorney, inter alia, failed to inform his client of settlement offers); Attorney Grievance Comm’n v. Bocchino, 435 Md. 505, 518 (2013) (finding a violation of Rule 1.4(b) where the attorney failed to inform his clients of the opposing party’s requests for a settlement demand). Thus, to the extent that any of Respondent’s clients settled their claims through Tilghman without prior discussion with Respondent, that would constitute a violation of Rule 1.4(b) on Respondent’s part. The issue in this case, though, is that while Respondent has admitted that RT & Associates settled some clients’ claims without his involvement during the relevant time frame, we do not know exactly when, or how many such claims were settled in this manner.

However, Respondent has admitted that RT & Associates settled clients’ claims on multiple occasions without his involvement, and we will not overlook that misconduct 17 merely because we do not know the precise date or number of violations. Therefore, we conclude that on more than one occasion Respondent violated Rule 1.4(b).8 Rule 5.3(a), (b), and (c) Responsibilities Regarding Non-Attorney Assistants Rule 5.3 provides in part: With respect to a non-attorney employed or retained by or associated with an attorney: (a) a partner, and an attorney who individually or together with other attorneys possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the attorney; (b) an attorney having direct supervisory authority over the non-attorney shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the attorney; (c) an attorney shall be responsible for conduct of such a person that would be a violation of the Maryland Attorneys’ Rules of Professional Conduct if engaged in by an attorney if: (1) the attorney orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or (2) the attorney is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action . . . . The hearing judge found that Respondent’s conduct violated each of these three subsections of Rule 5.3. According to the hearing judge, Respondent violated subsections (a) and (b) through the improper “delegation of broad authority to RT & Associates to act on his behalf with little or no supervision.” The hearing judge further found that this 8 Although we agree with much of Respondent’s argument with respect to his exception on this point, we nevertheless overrule his ultimate conclusion that he did not violate Rule 1.4(b). 18 conduct violated subsection (c) because Respondent “knew or should have known that RT & Associates’ unsupervised activities constituted the unauthorized practice of law.” As an initial matter, the hearing judge’s analysis with respect to subsection (c) overlooks critical language included therein, namely, that the conduct of the non-attorney would constitute a violation of the rules of professional conduct if it were “engaged in by an attorney.” The issue with the conduct of RT & Associates, as distinguished from that of Respondent, is whether RT & Associates was effectively engaging in activities that would either require supervision or a law license.

If we assume, as the rubric of subsection (c) requires us to, that those activities were in fact engaged in not by RT & Associates, but by an attorney, then they would not constitute violations of the rules of professional conduct. Moreover, any of Respondent’s actions or omissions in failing to properly supervise RT & Associates are not at issue under subsection (c), as distinguished from subsections (a) and (b). Therefore, regardless of whether Respondent may have violated subsections (a) and (b), the conduct of RT & Associates alleged in this proceeding would not violate the rules of professional conduct under subsection (c), and therefore Respondent has not violated subsection (c). We turn now to whether Respondent’s alleged lack of supervision of the paralegals at RT & Associates violated the other subsections of Rule 5.3.

In Attorney Grievance Commission v. Hallmon, this Court explained the limited role that non-attorney assistants, such as paralegals, may properly perform: Law clerks and paralegals perform a variety of services for attorneys but they may not give legal advice, accept cases, set fees, appear in court, 19 plan strategy, make legal decisions, or “chart the direction of a case.” . . . [U]nder the supervision of a licensed attorney, a legal assistant, for example, may obtain facts from the client, communicate information to the client, interview witnesses, “perform[ ] limited research to assist the lawyer with the legal analysis,” obtain documents, obtain photographs, prepare summaries, prepare chronologies, prepare itemization of claims, prepare drafts of pleadings, prepare drafts of interrogatories and of production of document requests, prepare drafts of responses to discovery requests, prepare outlines for the lawyer to use in deposing a witness, index deposition transcripts, and prepare summaries of the evidence. The key in all of these examples is supervision. The attorney may “not under any circumstance delegate to [a law clerk] the exercise of the lawyer’s professional judgment [on] behalf of the client. . . .” 343 Md. 390, 400 (1996) (second and third alterations in original) (citations omitted). As Hallmon explains, there are thus some activities that non-attorneys may never perform, such as appear in court or provide legal advice, and there are some activities that non-attorneys may only perform under the proper supervision of an attorney.

In this case, although there is once again a lack of evidence regarding the actions that RT & Associates took with respect to specific clients, Respondent’s admissions establish that he failed to properly supervise some of the actions of RT & Associates, and the staff there engaged in some actions that are impermissible for non-attorneys regardless of the level of supervision provided. Respondent admitted that, on some occasions, RT & Associates settled claims for clients of which he had no knowledge. This establishes that the staff at RT & Associates was engaging in activity that required the close supervision of Respondent—to the extent they could engage in that activity at all—and Respondent failed to supervise them in 20 accordance with Rule 5.3(b).9 Based on his knowledge and acceptance of the conduct of the staff at RT & Associates, Respondent also failed to “make reasonable efforts to ensure that [his law firm had] in effect measures giving reasonable assurance that [RT & Associates’] conduct [was] compatible with [his] professional obligations.” Rule 5.3(a). We therefore conclude that Respondent violated Rule 5.3(a) and (b).10 See Attorney Grievance Comm’n v. Smith, 443 Md. 351 , 367–68 (2015) (finding that the attorney violated Rule 5.3(a) and (b) where he delegated broad authority to his legal assistant to act on his behalf with little supervision, including allowing her to “negotiate with insurance companies and to obtain consent from clients to settle”). 9 It is possible that Respondent also failed to provide proper supervision with respect to other actions taken by RT & Associates.

However, Petitioner did not put forth clear and convincing evidence of specific actions taken by the staff at RT & Associates, and Respondent’s corresponding lack of supervision. We therefore limit our analysis to his lack of supervision over, and in some cases knowledge of, the settlement of claims by RT & Associates. We need not have before us all of the details of such representations to conclude that it is misconduct for an attorney to allow a paralegal to settle a claim for a putative client of which the attorney is not aware, as Respondent admits occurred here. 10 Our conclusion is not inconsistent with Respondent’s exception on this point, which for the most part simply defended the general practice of outsourcing paralegal activities to off-site firms. We do not here suggest that such outsourcing on its own constitutes a violation of Rule 5.3.

As long as an attorney provides proper oversight, such conduct does not violate the rule. In his exception, Respondent suggests that his violation be limited to the instances in which RT & Associates “settled cases with claims adjusters without [Respondent’s] oversight,” which he candidly admits occurred and constitutes a violation of Rule 5.3. We agree, and sustain Respondent’s exception to that limited extent, without suggesting that all of the other conduct of the paralegals at RT & Associates was necessarily proper. 21 Rule 5.4(a) Professional Independence of an Attorney Rule 5.4(a) provides, with certain exceptions not relevant here, that “[a]n attorney or law firm shall not share legal fees with a non-attorney.” The hearing judge found that Respondent regularly violated this rule by paying RT & Associates a portion of the contingent attorney’s fees from his clients’ settlements. The hearing judge found that, as evidenced by the table Respondent provided, this practice took place from at least 2014 through the summer of 2018.

As the hearing judge found, that