Attorney Grievance Comm'n of Md. v. Rand

• Decision Date: 22 December 2015
• Docket Number: Misc. Docket AG No. 40, Sept. Term, 2014.
• Citation: 128 A.3d 107,445 Md. 581
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Charles Stephen RAND.
• Court: Court of Special Appeals of Maryland

445 Md. 581

128 A.3d 107

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND

v.Charles Stephen RAND.

Misc. Docket AG No. 40, Sept. Term, 2014.

Court of Appeals of Maryland.

Dec. 22, 2015.

Lydia E. Lawless, Asst. Bar Counsel (Glenn M. Grossman, Bar Counsel, Attorney Grievance Commission of Maryland), for Petitioner.

Alan M. Wright, Esquire, Sandy Spring, MD, Charles N. Shaffer, Esquire, Damascus, MD, for Respondent.

Argued before: BATTAGLIA, GREENE, ADKINS, McDONALD, WATTS, GLENN T. HARRELL, JR. (Retired, Specially Assigned), and DALE R. CATHELL (Retired, Specially Assigned), JJ.

BATTAGLIA, J.

Charles Stephen Rand, Respondent, was admitted to the Bar of this Court on December 14, 1973. On September 17, 2014, the Attorney Grievance Commission, ("Bar Counsel"), acting pursuant to Maryland Rule 16–751(a),¹ filed a Petition for Disciplinary or Remedial Action against Rand related to his representation of Nancie Klein, in which it was alleged that he violated the following Maryland Rules of Professional Conduct ("Rule"): 1.1 (Competence),² 1.3 (Diligence),³ 1.4 (Communication),⁴ 1.5(a) (Fees),⁵ 1.15(a) (Safekeeping Property),⁶ 1.16(d) (Declining or Terminating Representation),⁷ 8.1 (Bar Admission and Disciplinary Matters),⁸ 8.4(a), (c), and (d) (Misconduct),⁹ as well as Maryland Rule 16–606.1 (Attorney Trust Account Record–Keeping).¹⁰

By Order dated September 22, 2014, this Court referred the matter to Judge Gary E. Bair of the Circuit Court for Montgomery County,¹¹ for a hearing in accordance with maryland rule 16–757(a).¹² Rand was served with the petition for disciplinary or Remedial Action, our Order, Petitioner's First Set of Interrogatories, Petitioner's First Request for Production of Documents and the Writ of Summons on October 4, 2014; he filed a Motion for More Definite Statement on October 23, 2014, which was denied. An answer to the Petition for Disciplinary or Remedial Action was filed by Rand on November 13, 2014, followed by a Revival of his Motion for More Definite Statement, which was denied on January 13, 2015. On December 12, 2014, Bar Counsel filed an Amended Petition for Disciplinary or Remedial Action in which the allegations that Rand violated Rules 1.1 and 1.3 were withdrawn.

Judge Bair held hearings on January 21 and 22, 2015 during which Bar Counsel presented testimony from Nancie Klein and her husband, Stephen Klein. Rand testified on his own behalf.

In addition, both Bar Counsel and Rand submitted substantial documentation, which was received in evidence, including Rand's fee agreement with Ms. Klein, various letters and email correspondence between Ms. Klein and Rand and Rand's account ledger, bank statements and IOLTA checks. On February 13, 2015, Bar Counsel filed Proposed Findings of Fact and Conclusions of Law, and Rand filed a Recommended Statement of Findings of Fact and Conclusions of Law.

The essence of Ms. Klein's complaint was that she had retained Rand to assist her in bringing a claim for age and race discrimination against her supervisor at the public school where Ms. Klein taught. Rand, after meeting with Ms. Klein and her husband, entered into a fee arrangement that provided for an hourly rate of $350, later reduced to $250 an hour, and, in an "evergreen" clause,¹³ required Ms. Klein to provide a retainer of $1,500 which would be replenished by her to maintain a minimum of $1,500, to cover fees, costs and expenses related to the matter.¹⁴

Ms. Klein paid the initial $1,500 as well as an additional $2,000, in two separate $1,000 payments, when Rand requested replenishment, without his ever having provided a bill which in any way reflected time spent. During the course of the representation, Ms. Klein took early retirement from the school because of stress and the mental and physical symptoms related to the job situation, without having been counseled by Rand about the possibility of a disability retirement.

Although Ms. Klein and Rand had also worked on drafting an addendum to her original complaint with the Equal Employment Opportunity Commission ("EEOC"), detailing specific instances of discrimination in addition to those earlier cited, Rand did not file the addendum, deciding unilaterally to incorporate it into a later response filed with the EEOC. Rand did not advise Ms. Klein of his decision regarding the addendum.

Ms. Klein, believing Rand was not giving sufficient attention to her matter, discharged him and requested both an invoice—having not received a single bill—and a copy of her file. Rand provided an enigmatic invoice, containing some duplicate entries, which demanded $11,230.00. Rand refused to provide Ms. Klein a copy of her file, and asserted an attorney retaining lien.¹⁵

After she discharged Rand, Ms. Klein hired new counsel to continue her attempts at mediation and conciliation with the EEOC and the school system, as she had received a determination from the EEOC that discrimination had occurred. After she filed a complaint with the Attorney Grievance Commission on April 15, 2013, Bar Counsel contacted Rand, and, over a protracted period, attempted to obtain data and documents from Rand regarding his representation of Ms. Klein. Those efforts continued until the morning of the first day of the disciplinary hearing, January 21, 2015.¹⁶

I. Judge Bair's Findings of Fact and Conclusions of Law

Judge Bair issued, on March 6, 2015, Findings of Fact and Conclusions of Law in which he determined that Rand violated Rules 1.4, 1.5, 1.15(a), 1.16(d), 8.1(a) and (b), 8.4(a), (c) and (d), as well as Maryland Rule 16–606.1. Judge Bair's Findings of Fact and Conclusions of Law state:¹⁷

Representation of Ms. Klein

Respondent received his undergraduate education at the University of North Carolina and his law degree from the University of Baltimore Law School. He was admitted to the Maryland Bar in December 1973 and is also licensed to practice law in the District of Columbia and before several federal courts. After serving three years as a Naval Officer, he worked from 1974 until 1980 as an Assistant County Attorney in Montgomery County. Since then, he has been in private practice in Rockville as a general civil trial practitioner. At all times relevant to this case, Respondent operated his law practice as a professional corporation in the name of McKernonRand, LLC.

In July 2011, Ms. Nancie Klein contacted Respondent to represent her in a case alleging discrimination claims against Montgomery County Public Schools ("MCPS"). Ms. Klein was referred to Respondent by another MCPS teacher whom Respondent had represented in a common-law tort matter involving MCPS. Ms. Klein was a psychologist in the county and had worked for MCPS as a teacher for 33 years. Ms. Klein, a white woman over 60 years old, was working at Takoma Park Elementary School, and believed the principal at the school had been engaging in age and racial discrimination. On July 26, 2011, at the initial meeting, Ms. Klein executed a retainer agreement with Respondent. The agreement provided that Ms. Klein would pay Respondent at a rate of $350/hour with an initial retainer of $1,500. After the initial retainer amount, Ms. Klein was to pay Respondent "those monies necessary, on a 30–day, as billed basis to maintain the retainer at its original level." ¹

¹ In December 2011, the hourly rate was reduced to $250/hour.

At the time of this initial consultation, Respondent had handled approximately six Equal Employment Opportunity Commission ("EEOC") cases.

Ms. and Mr. Klein testified that, at the initial consultation, Respondent told them that the maximum liability for MCPS was $300,000 and that he expressed optimism that Ms. Klein's case would be worth an amount close to $300,000. Respondent denied valuing her case at $300,000, and testified that his fee agreement states that clients should disregard any value he places on a case. The retainer agreement states "I acknowledge that no representation, warranty or guarantee has been made as to what amount, if any, may be recovered in this case." Based on a review of all the evidence, and notwithstanding the provision in the retainer agreement, the Court does not find Respondent's testimony credible, and the Court accepts the testimony of Ms. and Mr. Klein.

On or about August 19, 2011, Ms. Klein filed a complaint with the EEOC. The narrative of the complaint was prepared by Respondent but was filed, at Respondent's suggestion, by Ms. Klein pro se. The EEOC failed to notify MCPS of the claim until on or about October 20, 2011. While the EEOC case was still pending, the school year had begun and Ms. Klein was still experiencing discrimination. During the fall of 2011, Ms. Klein and Respondent were in communication about this continued discrimination. She repeatedly discussed with him the mental and physical symptoms she suffered as a result of the discrimination and discussed her plans to retire early. Respondent recommended that she hold off until the end of the school year, but that if she could only last until the end of the semester, they would "carry on from there." On November 30, 2011, Ms. Klein retired. Respondent testified that Ms. Klein never discussed her plans to retire prior to November 30, 2011, the date of her retirement. Based on a review of all the evidence, the Court finds the testimony of Ms. Klein more credible than that of Respondent and thus, the Court accepts the testimony of Ms. Klein.

In December 2011, Ms. Klein and Respondent began working on an addendum to be filed to the August EEOC complaint, which would include the additional discrimination that Ms. Klein faced in the fall of 2011. The circumstances surrounding the filing of this addendum was a significant focus of the hearing before the Court. On January 20, 2012, Ms. Klein emailed the Respondent with certain edits and additions to the addendum. The email stated "[w]hen it is ready [I] will sign it and let's get it on its way." On January 24, 2012, Ms. Klein emailed Respondent and asked, "[w]hen do you think [you] will

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