Attorney Grievance Commission of Maryland v. Charles Stephen Rand, Misc. Docket
AG No. 40, Sept. Term, 2014 Opinion by Battaglia, J.

ATTORNEY DISCIPLINE – SANCTIONS – INDEFINITE SUSPENSION

Indefinite suspension is the appropriate sanction when an attorney fails to keep his client
apprised of the costs of representation and the status of filings, asserts an invalid retaining
lien and fails to comply with requests from Bar Counsel for documents and information.
MLRPC 1.4, 1.5, 1.15(a), 1.16(d), 8.1, 8.4(a), (c) and (d) and Maryland Rule 16-606.1
Circuit Court for Montgomery County,
Maryland
Case No. 30325-M
Argued: September 29, 2015

                                       IN THE COURT OF APPEALS
                                             OF MARYLAND

                                           Misc. Docket AG No. 40
                                           September Term, 2014


                                         ATTORNEY GRIEVANCE
                                       COMMISSION OF MARYLAND

                                                       v.

                                         CHARLES STEPHEN RAND


                                                 Battaglia
                                                 Greene
                                                 Adkins
                                                 McDonald
                                                 Watts
                                                 Harrell, Jr., Glenn T.
                                                 (Retired, Specially
                                                 Assigned),
                                                 Cathell, Dale R. (Retired,
                                                 Specially Assigned),
                                                                JJ.


                                            Opinion by Battaglia, J.
                                       Adkins and McDonald, JJ., dissent.

                                             Filed:
         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
    Rule 16-751(a) provides, in relevant part:

         (a) Commencement of disciplinary or remedial action. (1) Upon approval
         or direction of Commission. Upon approval or direction of the Commission,
         Bar Counsel shall file a Petition for Disciplinary or Remedial Action in the
         Court of Appeals.
2
    Rule 1.1 provides:

         A lawyer shall provide competent representation to a client. Competent
         representation requires the legal knowledge, skill, thoroughness and
         preparation reasonably necessary for the representation.
3
    Rule 1.3 provides:

         A lawyer shall act with reasonable diligence and promptness in
         representing a client.
4
    Rule 1.4 provides:

         (a) A lawyer shall:
                (1) promptly inform the client of any decision or circumstance with
                respect to which the client's informed consent, as defined in Rule
                1.0(f), is required by these Rules;
                (2) keep the client reasonably informed about the status of the
                matter;
                (3) promptly comply with reasonable requests for information; and
                (4) consult with the client about any relevant limitation on the
                lawyer's conduct when the lawyer knows that the client expects
                                                                           (continued . . .)
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


(. . . continued)
                assistance not permitted by the Maryland Lawyers' Rules of
                Professional Conduct or other law.
         (b) A lawyer shall explain a matter to the extent reasonably necessary to
         permit the client to make informed decisions regarding the representation.
5
    Rule 1.5 provides, in relevant part:

         (a) A lawyer shall not make an agreement for, charge, or collect an
         unreasonable fee or an unreasonable amount for expenses. The factors to be
         considered in determining the reasonableness of a fee include the
         following:
                (1) the time and labor required, the novelty and difficulty of the
                questions involved, and the skill requisite to perform the legal
                service properly;
                (2) the likelihood, if apparent to the client, that the acceptance of the
                particular employment will preclude other employment of the
                lawyer;
                (3) the fee customarily charged in the locality for similar legal
                services;
                (4) the amount involved and the results obtained;
                (5) the time limitations imposed by the client or by the
                circumstances;
                (6) the nature and length of the professional relationship with the
                client;
                (7) the experience, reputation, and ability of the lawyer or lawyers
                performing the services; and
                (8) whether the fee is fixed or contingent.
6
    Rule 1.15 provides, in relevant part:

         (a) A lawyer shall hold property of clients or third persons that is in a
         lawyer's possession in connection with a representation separate from the
         lawyer's own property. Funds shall be kept in a separate account maintained
         pursuant to Title 16, Chapter 600 of the Maryland Rules, and records shall
                                                                            (continued . . .)
                                              2
(. . . continued)
         be created and maintained in accordance with the Rules in that Chapter.
         Other property shall be identified specifically as such and appropriately
         safeguarded, and records of its receipt and distribution shall be created and
         maintained. Complete records of the account funds and of other property
         shall be kept by the lawyer and shall be preserved for a period of at least
         five years after the date the record was created.
7
    Rule 1.16(d) provides:

         (d) Upon termination of representation, a lawyer shall take steps to the
         extent reasonably practicable to protect a client's interests, such as giving
         reasonable notice to the client, allowing time for employment of other
         counsel, surrendering papers and property to which the client is entitled and
         refunding any advance payment of fee or expense that has not been earned
         or incurred. The lawyer may retain papers relating to the client to the extent
         permitted by other law.
8
    Rule 8.1 provides:

         An applicant for admission or reinstatement to the bar, or a lawyer in
         connection with a bar admission application or in connection with a
         disciplinary matter, shall not:

                (a) knowingly make a false statement of material fact; or
                (b) fail to disclose a fact necessary to correct a misapprehension
                known by the person to have arisen in the matter, or knowingly fail
                to respond to a lawful demand for information from an admissions or
                disciplinary authority, except that this Rule does not require
                disclosure of information otherwise protected by Rule 1.6.
9
    Rule 8.4 provides, in relevant part:

         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;

                                           *   *      *

                                                                              (continued . . .)
                                               3
(. . . continued)
         (c) engage in conduct involving dishonesty, fraud, deceit or
         misrepresentation;
         (d) engage in conduct that is prejudicial to the administration of justice[.]
10
     Maryland Rule 16-606.1 states, in relevant part:

         (a) Creation of records. The following records shall be created and
         maintained for the receipt and disbursement of funds of clients or of third
         persons:

                                        *      *        *

         (2) Deposits and disbursements. A record for each account that
         chronologically shows all deposits and disbursements, as follows:
                (A) for each deposit, a record made at or near the time of the deposit
                that shows (i) the date of the deposit, (ii) the amount, (iii) the
                identity of the client or third person for whom the funds were
                deposited, and (iv) the purpose of the deposit;
                (B) for each disbursement, including a disbursement made by
                electronic transfer, a record made at or near the time of disbursement
                that shows (i) the date of the disbursement, (ii) the amount, (iii) the
                payee, (iv) the identity of the client or third person for whom the
                disbursement was made (if not the payee), and (v) the purpose of the
                disbursement;
                (C) for each disbursement made by electronic transfer, a written
                memorandum authorizing the transaction and identifying the
                attorney responsible for the transaction.
         (3) Client matter records. A record for each client matter in which the
         attorney receives funds in trust, as follows:

                (A) for each attorney trust account transaction, a record that shows
                (i) the date of the deposit or disbursement; (ii) the amount of the
                deposit or disbursement; (iii) the purpose for which the funds are
                intended; (iv) for a disbursement, the payee and the check number or
                other payment identification; and (v) the balance of funds remaining
                in the account in connection with the matter; and
                (B) an identification of the person to whom the unused portion of a
                fee or expense deposit is to be returned whenever it is to be returned
                to a person other than the client.
                                                                              (continued . . .)
                                                4
         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


(. . . continued)
         (4) Record of funds of the attorney. A record that identifies the funds of the
         attorney held in each attorney trust account as permitted by Rule 16-607 b.

                                        *      *       *

         (c) Electronic records. Whenever the records required by this Rule are
         created or maintained using electronic means, there must be an ability to
         print a paper copy of the records upon a reasonable request to do so.
          (d) Records to be maintained. Financial institution month-end statements,
         any canceled checks or copies of canceled checks provided with a financial
         institution month-end statement, duplicate deposit slips or deposit receipts
         generated by the financial institution, and records created in accordance
         with section (a) of this Rule shall be maintained for a period of at least five
         years after the date the record was created.
11
     Maryland Rule 16-752 states, in relevant part:

         (a) Order. Upon the filing of a Petition for Disciplinary or Remedial Action,
         the Court of Appeals may enter an order designating a judge of any circuit
         court to hear the action and the clerk responsible for maintaining the record.
         The order of designation shall require the judge, after consultation with Bar
         Counsel and the attorney, to enter a scheduling order defining the extent of
         discovery and setting dates for the completion of discovery, filing of
         motions, and hearing.
12
     Maryland Rule 16-757 states:

         (a) Generally. The hearing of a disciplinary or remedial action is governed
         by the rules of evidence and procedure applicable to a court trial in a civil
         action tried in a circuit court. Unless extended by the Court of Appeals, the
         hearing shall be completed within 120 days after service on the respondent
         of the order designating a judge. Before the conclusion of the hearing, the
         judge may permit any complainant to testify, subject to cross-examination,
         regarding the effect of the alleged misconduct. A respondent attorney may
                                                                             (continued . . .)
                                                 5
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.




(. . . continued)
         offer, or the judge may inquire regarding, evidence otherwise admissible of
         any remedial action undertaken relevant to the allegations. Bar Counsel
         may respond to any evidence of remedial action.
         (b) Burdens of proof. The petitioner has the burden of proving the
         averments of the petition by clear and convincing evidence. A respondent
         who asserts an affirmative defense or a matter of mitigation or extenuation
         has the burden of proving the defense or matter by a preponderance of the
         evidence.
         (c) Findings and conclusions. The judge shall prepare and file or dictate
         into the record a statement of the judge's findings of fact, including findings
         as to any evidence regarding remedial action, and conclusions of law. If
         dictated into the record, the statement shall be promptly transcribed. Unless
         the time is extended by the Court of Appeals, the written or transcribed
         statement shall be filed with the clerk responsible for the record no later
         than 45 days after the conclusion of the hearing. The clerk shall mail a copy
         of the statement to each party.
         (d) Transcript. The petitioner shall cause a transcript of the hearing to be
         prepared and included in the record.
         (e) Transmittal of record. Unless a different time is ordered by the Court of
         Appeals, the clerk shall transmit the record to the Court of Appeals within
         15 days after the statement of findings and conclusions is filed.

                                               6
      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



13
   An “evergreen” clause providing for a retainer contemplates that the retainer is to
remain funded at a certain level, with the debtor replenishing it as needed to maintain the
original value. In re GSB Liquidating Corp., No. 94 B 24672, 1995 WL 521528, at *14
n.13 (Bankr. N.D. Ill. Aug. 21, 1995) (“An ‘evergreen’ retainer mirrors the tree after
which it was named. The debtor is responsible for replenishing the retainer after his
attorney has drawn down or used that retainer for compensation for services rendered.”);
see In re Pan American Hosp. Corp., 312 B.R. 706, 709 (2004) (“The evergreen retainer
is yet another type of special retainer. The evergreen retainer agreement contemplates
that the retainer shall remain intact and that the debtor's professionals' interim
compensation shall be paid from the debtor's operating capital.”).


                                            7
$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

14
     The fee agreement contained the following, relevant, provisions:

         1. Fees shall be based on time … No substantial work shall be performed
         before payment of a deposit (“retainer”) toward fee (refundable if not
         earned) of $1,500.00, plus a non-refundable initial consultation fee of
         (N/A), payable prior to said consultation. Client understands that
         substantial Attorney time input, and therefore fees, must be expended as
         and when necessary. Therefore, it is agreed that Client shall pay the
         Attorney those monies necessary, on a 30-day, as-billed basis to
         maintain the retainer at its original level. …

                                          *   *      *

     5. Statement for services performed and costs advanced are due when
     rendered and Client agrees that in the event a statement remains unpaid for
     thirty (30) days, the Attorney shall be under no obligation to take any action
     on behalf of Client and may take action to withdraw his appearance from
     any court action and proof of nonpayment shall represent Client’s consent
     thereto.
(emphasis in original)

                                              8
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


15
     We have defined attorney retaining liens as follows:

     Attorney's liens are categorized as either a retaining lien or a charging lien.
     See Ashman v. Schecter, 196 Md. 168, 173-74, 76 A.2d 139, 141-42 (1950)
     (noting that a charging lien binds a judgment recovered through the
     attorney's efforts, whereas a retaining lien is a general lien, dependent on
     possession, that gives an attorney the right to retain all papers, securities
     and money belonging to his client which comes into his possession until all
     his charges against his client are paid.). Under Maryland common law,
     attorneys do not have a charging lien, but a retaining lien is recognized. See
     Md. Rule 2-652(a); Tucker v. Dudley, 223 Md. 467, 472, 164 A.2d 891,
     895 (1960). The charging lien has only been available in Maryland since
     1985, when the General Assembly established a statutory attorney's lien.
     See 1985 Md. Laws, ch. 723; Consolidated Construction Servs. v. Simpson,
     372 Md. 434, 460-61, 813 A.2d 260, 276 (2002).
Rhoads v. Sommer, 401 Md. 131, 148 n.12, 931 A.2d 508, 518 n.12 (2007).


                                               9
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.

16
   On the morning of the first day of the disciplinary hearing, January 21, 2015, Rand
provided several bank statements and canceled checks related to the issue of $300 that
was shown as remaining in Ms. Klein’s trust account on the date of his deposition,
November 25, 2014.
17
   Internal record citations within the Findings of Fact have been omitted.

                                             10
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.
                                      11
        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 be done with the final copy of the
addendum and letter for the EEOC for my part?” On February 4, 2012,
having not received any response, Ms. Klein again emailed Respondent
stating, “[t]his is a second email about the addendum. I have one with my
numbers and corrections. It does not look like the completed one. Would
you please e-mail me the new addendum and hold off on sending it until I
ok it?" Respondent provided an updated draft to Ms. Klein. On February 7,
2012, Ms. Klein emailed Respondent stating, “I received the letter and
complaint. It looks great. There is one small error. In the letter, middle
paragraph on the second page the number should be 5. Other than that —
great. Please sign my name and send it off.” Respondent never responded to
this February 7th email. On February 23, 2012, having heard nothing from
Respondent, Ms. Klein emailed him and asked: “[j]ust checking in on the
addendum. Did you send it to the EEOC? If so, when was it received? How
do we get the addendum actually attached to the original complaint? I don’t
want it going in as a separate complaint with an additional examiner and a 6
month lag in investigation.” Ms. Klein did not recall whether Respondent
responded to this email. Respondent never provided Ms. Klein a final copy
of “what was filed.” Based on the evidence provided, the Court finds that
Respondent did not, in fact, ever file the addendum as instructed by Ms.
Klein. Furthermore, Respondent did not advise Ms. Klein that the
addendum had not been filed.
        On March 28, 2012, the EEOC forwarded a copy of MCPS’s
position statement to Ms. Klein. Ms. Klein and Respondent worked
together to draft a reply. On or about April 6, 2012, Respondent, signing
Ms. Klein’s name, filed a reply to MCPS’s response to the complaint.
Respondent included in the Reply information which he had led Ms. Klein
to believe had been filed, by addendum, in February, and Ms. Klein did not
know that the addendum she approved on February 7, 2012, had not been
filed as of April 6, 2012.
       On January 28, 2013, the EEOC issued its determination that Ms.
Klein was harassed because of her age and race and invited the parties to
join in conciliation. On February 6, 2013, Ms. Klein, Mr. Klein, and
                                     12
Respondent met to discuss the conciliation process as well as an
appropriate settlement number. Both Mr. and Ms. Klein testified that, at the
February 6 meeting, they, along with Respondent, agreed that the value of
Ms. Klein’s case met or exceeded the $300,000 cap on MCPS claims.
Respondent testified that he never mentioned the $300,000 cap to the
Kleins. The Court does not find Respondent’s testimony about the
$300,000 figure credible, and the Court accepts the testimony of Ms. and
Mr. Klein.

        On March 7, 2013, Ms. Klein terminated Respondent’s services as
her attorney by sending him a letter. The letter stated that she was seeking
other counsel “based on the fact that I believe you are not giving my case
the attention it deserves, and using my case without my approval to benefit
another client” and requested that he “cease and desist using the
information pertaining to my case in any action you are taking on behalf of
your other clients."2
______________________________
2
  Ms. Klein believed that Respondent had used the favorable determination
in her case to leverage a case he was handling for another client (who
worked with Ms. Klein) against MCPS and Takoma Park Elementary
School. When Ms. Klein instructed Respondent to stop, he responded that
because her case was a published public opinion he was free to use it.
Respondent testified that this other client was brought to Respondent by
Ms. Klein herself, and in fact he would have meetings with both clients
together. Ms. Klein also testified at this other client’s trial. Respondent’s
actions regarding his handling of the other client’s case was not a subject of
the Amended Petition.
______________________________

She further requested Respondent forward her file and “any other
information pertaining to [her] case to her home.” Respondent emailed a
response on March 11, 2013, stating: “Your accusations of misconduct on
my part are wholly unfounded, as you well know, and poor repayment for
the difficult and painstaking work I performed for you to drive your
improbable case to a favorable result.” Respondent sent a follow-up letter
on March 18, 2013:
       Rather to engage in a lengthy explanation of my reaction to
       your recent email and letter to me discharging me as your
       attorney and threatening me with suggestions of misconduct,
       let me simply give you the bottom line, and you may take
       whatever action you wish.
                                     13
       l. I accept that I am discharged as your attorney, which is
       your right. I deny any suggestion that I neglected your case,
       particularly so soon after winning it.
       2. There has been no violation of your private or confidential
       legal matters. Further, while I am amazed that you are now
       attempting to tum your back on your friend, fellow teacher
       and co-client, your right to attempt to do so is limited. To the
       extent that your case is a matter of public record, it may be
       used as such, and you have no ability to forbid it. Your
       attempt to do so is particularly opprobrious in that your
       victory is the product of my achieving the vindication for you
       that you sought: it is wholly the result of my efforts on your
       behalf. Your lack of gratitude is stunning.
       3. Our agreement was that I be paid hourly. While I kept time
       during your case, only a portion of it was billed for payment
       by you due to the necessity to dedicate many more hours to
       achieving victory that I believed should have been billed to a
       school teacher who was out of a job and had not yet won (and
       whose percentage-chances of winning were low)....
       On March 22, 2013, Ms. Klein again requested a copy of her file.
She stated: “I have been advised by my present attorney that I am entitled
to copies of my file if I pay all copying charges. I will do so. I need ASAP
both my signed EEOC charges, your contract and bills, and the March 17,
2012 rebuttal from MCPS. The rest of the file can wait until the following
week. These files are absolutely necessary for me to continue on with the
conciliatory mediation with the EEOC. If you would please e-mail me or
call my husband [] when these documents are copied I would appreciate it.
He will come by your office to pick up the documents and pay for
copying.” Respondent responded to the email, stating: “I disagree with your
new attorney’s analysis, and my retaining lien will remain in effect absent
new facts not yet presented to me.”

        On March 28, 2013, Respondent sent an invoice and ledger to Ms.
Klein charging her a total of $11,230. Ms. Klein estimated that she
requested invoices from Respondent eight times during the course of the
representation, and Respondent would say that they should let it ride and he
would send bills. Respondent never gave an estimate of the current attorney
fees, and the first invoice Respondent sent to Ms. Klein was the March 28,
2013 invoice. Respondent testified that Ms. Klein never made any requests
for bills. The Court credits the testimony of Ms. Klein and finds that she did
in fact request copies of her bills, and that the March 28, 2013 invoice was
the first bill sent to her by Respondent.
                                     14
       Both Mr. and Ms. Klein stated that they replenished the initial
$1,500 retainer with two checks, both for $1,000, on December 22, 2011
and January 19, 2012. Respondent’s ledger also shows these payments.
Respondent testified that the ledger’s showing that a check had been
deposited in January 2012 was made in error and that there was no deposit
made on January 19, 2012. Based on all the evidence presented, the Court
does not find Respondent’s testimony that the Kleins never made the
second $1,000 payment in January 2012 credible, and accepts the testimony
of Mr. and Ms. Klein. Thus, when Ms. Klein received the March 28, 2013
invoice and ledger, she had already paid Respondent a total of $3,500.

       Respondent also sent Ms. Klein an email on March 28, 2013
corresponding with the invoice; the email stated “your payments are not
entirely credited, but I believe them to be approximately $4,000. I will
accept $5,000 in full satisfaction....”

        On April 2, 2013, Ms. Klein again requested a copy of her file and a
complete copy of her bill. On April 9, 2013, Ms. Klein informed
Respondent that MCPS was not interested in conciliation and requested
information about the “mediation proposal.” Respondent refused to provide
Ms. Klein with the requested information, explaining, “I am disinclined to
expend time in fielding your latest request.” Respondent never provided
Ms. Klein with copies of his communications with the EEOC or with the
information that the EEOC valued her case at approximately $25,000. On
April 15, 2013, he emailed her stating: “[p]lease advise in the next 24 hours
if you intend to pay my outstanding fee, and if so, when.”

       On April 16, 2013, Ms. Klein emailed Respondent noting several
duplications on the invoice. Additionally, the email stated: “you also billed
me $75 on 2/11/2012 for correspondence with the EEOC. I have no
knowledge or a copy of this correspondence- so I will not pay for it. Since
your previous e-mail said you think my payments are approx. $4000 and I
received no itemized bills for over a year I have no way to know if these
charges are [legitimate] or not. I am not paying your bill. You keep
threatening to place a lien on my suit so do what you will.” Respondent
never acknowledged these duplicate charges or provided Ms. Klein with his
correspondence to the EEOC. However, Respondent acknowledged on the
stand and in his Proposed Findings of Facts and Conclusions of Law that
the ledger sent to Ms. Klein had errors and duplicate entries.

       On January 3, 2014, Respondent sent a letter to Ms. Klein’s new
attorney, Alan Banov, Esquire, in response to Mr. Banov’s letter requesting
                                     15
that Respondent provide information and related documents regarding any
settlement negotiations with MCPS. Respondent denied Mr. Banov’s
demand and stated that he was imposing a statutory lien on her file in the
amount of $6,605, and that he was “only required to furnish the client with
documents from the file which are necessary for the prosecution of her
claim or defense.” Respondent stated that information and documents
concerning settlement negotiations “can hardly be classified as documents
necessary for the prosecution of Ms. Klein’s claim” because they are
“settlement    discussions”   which      are   inadmissible,    and    this
information/documentation is available from other sources.

                        Bar Counsel Investigation

       On April 15, 2013, Ms. Klein filed a complaint with the Attorney
Grievance Commission. On April 26, 2013, Bar Counsel forwarded a copy
of Ms. Klein’s complaint to Respondent and in an accompanying letter,
requested a written response to the complaint within fifteen days. On May
10, 2013, Respondent sent a letter to Bar Counsel in response to Ms.
Klein’s complaint. That letter included the following statements:
       1. “I won her case (including an award of attorney’s fees)...”
       2. “Ms. Klein paid $4,000. . .” and
       3. “When the EEOC ruled in her favor, it also ruled that I was
       entitled to attorneys fees.”

       The letter conveys that Respondent believes Ms. Klein’s complaint
arises out of a fee dispute. Although Respondent testified at trial and wrote
in his Proposed Findings of Fact and Conclusions of Law that he was
incorrect when he stated Ms. Klein had paid him $4,000, Respondent was
somewhat unclear as to when in fact he came to the realization that he was
incorrect.

        On May 21, 2013, Bar Counsel forwarded a copy of Respondent’s
May 10, 2013 letter to Ms. Klein and requested her written comments. On
May 27, 2013, Ms. Klein provided additional information in a letter. In a
letter dated June 11, 2013, Bar Counsel requested that by June 28, 2013,
Respondent provide comments in reply to Ms. Klein’s letter as well as:
        1. A copy of his retainer agreement with Ms. Klein;
        2. Copies of all records created and maintained pursuant to
        Maryland Rule 16-606.1 for the receipt, maintenance and
        disbursement of Ms. Klein’s funds;
        3. Copies of all correspondence between himself and Ms.
        Klein including all email correspondence; and

                                     16
      4. Any and all documentation to support the billing entries in
      the undated “Client Ledger” provided to Bar Counsel by Ms.
      Klein including but not limited to copies of all
      correspondence related to the representation of Ms. Klein,
      notes of all telephone conversations or meetings relating to
      the representation of Ms. Klein and all filings.

     On June 28, 2013, Respondent sent the following letter to Bar
Counsel, reproduced in full:

      As you know, your list entails more than everything
      concerning the fee in her case (e.g. IOLTA account records,
      original time sheets, all email traffic, etc.). I am certain that a
      thorough adherence to your list would take six to ten hours of
      my time to compile, which, as you no doubt know, is far more
      than the balance due from Ms. Klein.

      Your request is not reasonable, because it is facially excessive
      and has no factual basis in the issues raised by the
      Complainant in her correspondence to you regarding the
      matter. Further, this matter is patently a fee dispute, and it is
      your well-publicized policy not to be involved in fee disputes.
      Again, you have made an exception to your policies where I
      am involved.

      Indicative of the excessiveness and oppressiveness of your
      demand is that you do not even allow me the 30 days to
      produce documents that are afforded to an actual litigant
      seeking Production of Documents under the Rules. And you
      are not a litigant; you appear to be a regulatory agency
      without enough ‘factual basis’ to initiate a lawsuit were you
      in this case a private party, without danger running afoul of
      Rule l-341. Further, your demand that this voluminous
      documentation be produced in half the time allowed to
      litigants in fact requires that I ‘drop everything’ and rush to
      comply. In this regard, I only received your letter when I
      returned from a week’s vacation on June 17, 2013. I had a
      very significant trial for which to prepare on June 24, 2013
      (for which I was required to dedicate every available working
      hour, including the entire weekend), and the usual array of
      remaining and new matters which inevitably a solo
      practitioner must address upon his return to work.

                                      17
I am acutely aware of the legally impregnable position your
agency holds: once you commence to investigate or charge a
practitioner (apparently reserved for solos only — never large
firms), there are no counterclaims, or injunctions or even
allowable motions to dismiss or other usual means available
to mitigate the onslaught you visit upon us.

This situation is aggravated by the fact that there is no
realistic ‘Internal Affairs’ division to regulate arbitrary,
capricious, unlawful and/or vindictive conduct by your
agency. Indeed, there is realistically no one to whom to
complain except perhaps the Court of Appeals or the
Governor, neither of which could arguably be thought of as a
‘hands-on’ arbiter of the conduct of your agents’ activities.

And, of course, your power to discipline and/or disbar
attorneys is ever-present: I note that you were not hesitant to
advise me in the last paragraph of your letter that you hold the
power to discipline/disbar me if I fail to respond timely
pursuant to Rule 8.1.

You indeed have the ever-present power to take away the
right to earn a livelihood of a practitioner who has always
invested no less than three years of his/her life in obtaining a
license to practice law, or in my case more than forty. And
my far-too broad experience with you has made it clear that
you are not bashful about threatening practitioners (solos a
specialty), and carrying out those threats regardless of the
validity, vel non, of the charges and the dire consequences
that they bring to the lives of the innocent and/or honest
attorneys—‘that isn’t your problem, you’re just doing your
job’.

You have seen fit to charge me personally with misconduct so
often in the last five years that I have no question that I am
the most-prosecuted practitioner in the history of the legal
profession in the State of Maryland. I hold that dubious
distinction only because your “nuanced” charges have never
been found to be valid; therefore, I have been able to get off
the canvas repeatedly, only to be greeted by more of your
serial Sunday punches.


                              18
      You have seen fit to bring public charges of misconduct
      against me twice in these five years to be tried to judges of
      the court before which I primarily practice. Dissatisfied with
      the “foot faults" each trial judge found, you filed appeals to
      Maryland’s highest court, inevitably demanding more of my
      professional flesh. In both those proceedings I was found not
      to have engaged in misconduct. However, in those two
      proceedings, along with several other prosecutions of lesser
      reach, you have managed to cost me hundreds of thousands of
      dollars, untold clients and have destroyed, most critically, my
      reputation before my peers, my bench and the public. In short,
      you have dramatically interfered with my right to make a
      living as an honest attorney, and be left alone by you.

      It is in light of this administrative apparatus and personal
      history with you that I have concluded, at my peril, that your
      demand for ‘information’ is unreasonable and therefore
      invalid. However, in recognition of my duty to respond and to
      disclose under Rule 8.1, I will allow you or your investigator
      to come to my office, by agreed-upon appointment, to
      examine the subject case file and such other items for which
      you can demonstrate some articulable ‘probable cause’.

      Please do not regard this letter as the opening of a
      negotiation: this is my response to you. If you take the
      position that this letter does not constitute ‘substantial
      compliance,’ please advise so that such may become the grist
      of an action for Declaratory Judgment.

       On August 26, 2013, Bar Counsel sent a letter to Respondent
advising him that Ms. Klein’s complaint had been docketed for further
investigation and asking “that you reconsider your position and provide me
with the information and documentation I requested in my letter of June 11,
2013 within fifteen (15) days. My investigator, William M. Ramsey, will be
in touch with you in the near future to make arrangements to pick up the
requested documentation if you are unable to deliver it to our office....You
are also advised that the Maryland Rules of Professional Conduct 8.1
provides that a lawyer, in connection with a disciplinary matter, shall not
knowingly fail to respond to a lawful demand for information by a
disciplinary authority.”

       On September 9, 2013, Respondent requested an extension of time
to “formulate [his] response.” On September 11, 2013, Bar Counsel granted
                                    19
      Respondent’s request for an extension and requested the information and
      documentation be provided no later than September 30, 2013. On
      September 30, 2013, Respondent requested a second extension, stating that
      his schedule had “precluded [his] finalizing a reasonable response.” Bar
      Counsel granted Respondent’s request for a second extension on October 8,
      2013.

             On October 11, 2013, Respondent mailed Bar Counsel a letter
      stating that he had “taken the entire file to the printer and it will be here for
      pickup by your Investigator from this point forward. If you do not believe
      this is an adequate response, please contact me." Sometime around late
      October or early November 2013, a representative from Bar Counsel came
      and picked up Ms. Klein’s client file; no bank statements had been
      produced, but the ledger was included in the file. On May 9, 2014,
      Respondent finally provided some bank statements for “months that
      showed every transaction on the client ledger that had been made with her
      escrow money,” cancelled checks, and deposit slips. Respondent did not
      provide all bank records for the entire time Ms. Klein was his client, but
      stated that he believed that providing the ledger was sufficient to comply
      with Bar Counsel’s request for “all records created and maintained pursuant
      to [Maryland Rule 16-606.1].”

             On November 25, 2014, Petitioner’s counsel took Respondent’s
      deposition. During his deposition, Respondent agreed to provide additional
      documentation related to Ms. Klein’s funds; namely, documentation
      evidencing whether there remained $300 of Ms. Klein’s funds in trust or
      whether the funds had been withdrawn. Besides that information,
      Respondent believed he had provided all documents relating to Maryland
      Rule 16-606.1 and MLRPC 1.15. On the morning of trial, January 21, 2015,
      Respondent provided selected additional bank account statements.

The Conclusions of Law made by Judge Bair were as follows:18

             In its Amended Petition for Disciplinary or Remedial Action, Bar
      Counsel alleged the following six violations of the Maryland Lawyers’
      Rules of Professional Conduct (“MLRPC”) and Attorney Trust Account
      Record Keeping: (A) Rule 1.4 Communication; (B) Rule 1.5 Fees; (C) Rule
      1.15(a) Safekeeping Property and Maryland Rule 16-606.1 Attorney Trust
      Account Record-Keeping; (D) Rule 1.16(d) Declining or Terminating

18
  Internal record citations and Maryland Rules, where indicated, in the Conclusions of
Law have been omitted.

                                             20
Representation; (E) Rule 8.1(a) and (b) Bar Admission and Disciplinary
Matters; and (F) Rule 8.4 (a), (c) and (d) Misconduct.3
______________________________
3
  In its Amended Petition for Disciplinary or Remedial Action, Petitioner
charged seven separate rule violations, but the Court is combining the
violations of MLRPC Rule 1.15(a) Safekeeping Property and Maryland
Rule 16-606.1 Attorney Trust Account Record-Keeping into one alleged
violation under subpart C, for a total of six separate categories of violations.
______________________________


A. MLRPC Rule 1.4. Communication

       [Rule omitted]

       Respondent violated MLRPC Rule 1.4(a-b) in three ways. First,
Respondent failed to provide Ms. Klein with periodic invoices about his
attorney fees and he also failed to request replenishment of his retainer. The
retainer agreement signed by Ms. Klein states that she was to pay
Respondent “those monies necessary, on a 30-day, as billed basis to
maintain the retainer at its original level.” As stated supra, the Court credits
the testimony of Mr. and Ms. Klein and found that Ms. Klein requested
invoices between seven and eight times during the course of the
representation. Moreover, at Respondent’s deposition, he testified “Oh, I
don’t think so. Pretty sure she didn’t. I don’t know,” in response to whether
Ms. Klein had requested an invoice. At trial however, Respondent testified
that Ms. Klein never requested a bill from him. The Court found that Ms.
Klein provided two additional payments of $1,000 to Respondent, for a
total payment of $3,500 before Respondent sent her the first invoice billing
her for over $11,000. By failing to provide any monthly statements when
requested and failing to request replenishment as needed, Respondent
violated MLRPC Rule 1.4 Communication. Attorney Grievance Comm'n of
Md. v. Calhoun, 391 Md. 532, 569 (2006) (finding that sending out
monthly statements that simply stated what the client owed without
providing further details was a violation of MLRPC Rule 1.4).

       Second, Respondent violated MLRPC Rule 1.4(a)(2) with respect to
his failure to file the addendum to Ms. Klein’s original complaint. In
December 2011, Respondent and Ms. Klein began drafting an addendum to
her original complaint. On February 7, 2012, Ms. Klein approved the final
draft and instructed Respondent to “please sign my name and send [the
addendum] off.” Respondent did not follow Ms. Klein’s instruction and
                                      21
failed to inform her that the addendum had not been filed. On February 23,
2012, Ms. Klein requested information about the addendum from
Respondent. Respondent failed to respond in any manner to Ms. Klein’s
requests for information. While the addendum was eventually incorporated
by Respondent into Ms. Klein’s response to MCPS and filed on or about
April 6, 2012, Respondent never communicated with Ms. Klein that the
addendum had not been filed in February and failed to provide her with the
requested information about the procedure associated with filing the
addendum.

        Third, the Court finds the Respondent violated Rule 1.4(b) when he
failed to communicate with Ms. Klein about potential ramifications of her
early retirement in the fall of 2011. Specifically, he failed to advise her
about the option of taking medical retirement or filing a claim for
constructive discharge.

       Although it appears that Ms. Klein and Respondent did
communicate frequently during the course of the representation, that does
not negate Respondent’s violations of Rule 1.4 in that he failed to provide
Ms. Klein with invoices, he failed to file a timely addendum, and he failed
to advise Ms. Klein about the ramifications of her retirement or potential
constructive discharge claim.

B. MLRPC Rule 1.5. Fees

      [Rule omitted]

The Court finds that Respondent violated MLRPC Rule 1.5(a) when he
failed to provide Ms. Klein invoices and failed to request sufficient
replenishment of his retainer, despite both being required in his retainer
agreement and by repeated requests for invoices from Ms. Klein. MLRPC
Rule 1.5 prohibits lawyers from charging unreasonable fees. The Rule
provides a list of non-exclusive factors to consider when determining the
reasonableness of fees. The Court of Appeals noted that it is not necessary
to prove that the total fee sought was unreasonable in order to find a
violation of the rule. Attorney Grievance Comm'n of Md. v. Green, 441 Md.
80, 92 (2014) (finding that the attorney’s fees were unreasonable and that
the attorney violated MLRPC Rule 1.5 by failing to provide monthly
invoices and failing to request the replenishing retainer).

C. MLRPC Rule 1.15. Safekeeping Property, and Maryland Rule 16-
606.1. Attorney Trust Account Record-Keeping

                                    22
       [Rule omitted]

       [Rule omitted]

       The Court finds that Respondent did not create and maintain records
required by Maryland Rule 16-606.1(a)(2) and (a)(3) and thus, Respondent
is in violation of MLRPC Rule 1.15(a). At Respondent’s deposition, the
following colloquy took place:

       Bar Counsel Question: ....we charged in the petition a
       recording keeping violation of Rule 16-606.1 and the Rule
       1.15, the safekeeping rule that accompanies that. And I just
       want to make sure that I have everything that’s related to the
       receipt, maintenance, and disbursement of [Ms.] Klein’s
       funds as discussed with you of June 11th, 2013, which is
       Deposition Exhibit No. 8. And just so that you’re clear, I have
       the three bank statements and accompanying documents that
       have been marked as Deposition Exhibits No. 9, 10, and 11,
       and then I have the three versions of the invoices that we’ve
       discussed, the most up to date or the last one being the April
       3rd, 2013 invoice.
       Respondent Answer: Well, you know, I owe you the answer
       on $300 and whether it remains. That you don’t have, clearly.
       The other stuff, I think you got. The sequence of events is you
       asked for all this stuff. I sent you the billing invoice which
       does have all of that. The backup to all of that, as far as I’m
       concerned, is prima facie compliance. And then, you know, I
       gave you all the backup that I thought was reasonable in
       Exhibits 9, 10, and 11. So you know, I thought I gave you
       everything.

Additionally, when questioned about the source of his representation to Bar
Counsel that Ms. Klein had paid him $4,000, he stated that the number
came from his “recollection.”

        At trial, Respondent testified that his software program, PCLaw,
generates reports which have “all the activity, financial, as well as time
input. . .” for each client. Respondent also represented that the client ledger
from the PCLaw program is “always the same” and that once the entries are
made they cannot change, but the Court notes that when comparing the
ledgers for the same client printed on different days, there was in fact
different information. Moreover, Respondent stated that he did not
incorporate bank statements into Ms. Klein’s file.
                                      23
        As discussed supra, Respondent acknowledged he was incorrect in
his initial assertion that the Kleins had paid him $4,000. At trial, the Kleins
testified that they believed they had paid the Respondent a total of $3,500.
The Respondent testified that the Kleins paid him a total of $2,500. Had
Respondent kept more accurate records that included bank statements, he
would not have needed to rely on his incorrect recollection. The Court finds
the Kleins’ testimony to be more credible than the Respondent’s.
Additionally, had the records been properly kept, there would not have
been duplicate charges, or at the very least Respondent would have realized
his errors sooner. By failing to keep complete and accurate records,
Respondent is in violation of Maryland Rule 16-606.1.

D. MLRPC Rule 1.16. Declining or Terminating Representation

       [Rule omitted]

        “When a client requests his or her file from an attorney at the end of
the representation, MLRPC l.l6(d) requires the attorney to surrender the
portions of the file (or a copy) to which the client is entitled (assuming no
proper charging lien exists)” Attorney Grievance Comm'n of Md. v. Brown,
426 Md. 298, 322 (2012). Maryland Rule 2-652(a) provides that except as
otherwise provided under the Maryland Lawyers’ Rules of Professional
Conduct, “an attorney who has a common-law retaining lien for legal
services rendered to a client may assert the lien by retaining the papers of
the client in possession of the attorney until the attorney’s claim is
satisfied.”

       The Court finds Respondent violated MLRPC Rule 1.16(d) when he
failed to provide Ms. Klein with her file upon his termination. While
Respondent asserts that he had a retaining lien on Ms. Klein’s file, the
Court notes that this does not give Respondent an absolute right to retain
Ms. Klein’s file. Even if Respondent had a valid lien, the “mere existence
of a legal right does not entitle a lawyer to stand on that right if ethical
considerations require that he forego it” and the Court “will not
countenance in a disciplinary proceeding such a self-help argument for
vigilante lawyers who decide to take disputes over attorney’s fees into their
own hands.” Attorney Grievance Comm'n of Md. v. Sheridan, 357 Md. 1,
35 (1999) (where lawyer had taken client funds and used them for personal
or professional use) (internal citations omitted). As discussed supra,
Respondent failed to comply with both MLRPC Rule 1.5(a), because he
failed to provide Ms. Klein with invoices or requests to replenish the
retainer, and MLRPC Rule 1.15(a) because Respondent failed to keep
                                     24
proper records in accordance with Maryland Rule 16-606.1. Where
Respondent failed to provide invoices and failed to keep proper billing
records for this client, Respondent could not then assert a retaining lien on
her file based on his questionable billing practices.

       Moreover, upon Respondent’s termination, the potential for
mediation or conciliation was pending in Ms. Klein’s case. Thus, Ms. Klein
was entitled to all information that Respondent had received from the
EEOC related, in any way, to the pending conciliation process. An attorney
may be required to turn over such papers, or photocopies thereof, to the
client or successor counsel to enable an ongoing action to go forward. See
Pomerantz v. Schandler, 704 F.2d 681 (2d Cir. 1983); Upgrade Corp. v.
Michigan Carton Co., 410 N.E.2d 159 (Ill. App. Ct. 1980); Frenkel v.
Frenkel, 599 A.2d 595 (N.J. Super. Ct. App. Div. 1991); Rosen v. Rosen,
97 A.D.2d 837 (N.Y. App. Div. 1983); Fleming v. Bernauer, 138 Misc. 2d
267 (N.Y. Sup. Ct. 1987); M.E. v. S.G., 124 Misc. 2d 851 (N.Y. Fam. Ct.
1984); People v. Altvater, 78 Misc. 2d 24 (N.Y. Sup. Ct. 1974). This would
include the complaint Ms. Klein had filed pro se, MCPS’s response, and
her reply, also submitted pro se. Ms. Klein was not in possession of final
drafts of the complaint or reply and did not have a copy of MCPS’s
response when she terminated Respondent’s services.

E. MLRPC Rule 8.1. Bar Admission and Disciplinary Matters

       [Rule omitted]

       Respondent admitted that he made misrepresentations to Bar
Counsel. He admitted that he misrepresented the amount of money paid to
him. Second, Respondent admitted that it was an “exaggeration” that he
was awarded attorney’s fees by the EEOC. Indeed, he was not awarded
attorney’s fees. Finally, Ms. Klein wrote to Bar Counsel that it was a
“combination of gross exaggeration of the facts and blatant lies” for
Respondent to claim he “won” her case. According to Ms. Klein, she
received a ruling in favor from the EEOC that supported her discrimination
case against the EEOC and the case was ongoing. The Court finds these
misrepresentations by Respondent were material and made knowingly. The
Court therefore concludes that each misrepresentation constitutes a
violation of Rule 8.1(a).

      Additionally, Respondent violated MLRPC Rule 8.1(b) when he
knowingly and intentionally failed to respond to Bar Counsel’s requests for
information. The Court notes that “a request for information by Bar
Counsel does not have to come in any particular form in order to trigger the
                                     25
compliance requirements of MRPC 8.1.” Attorney Grievance Comm’n of
Md. v. Khandpur, 421 Md. 1, 12 (2011). Respondent’s response on June 28,
2013, states: “in recognition of my duty to respond and to disclose under
Rule 8.1, I will allow you or your investigator to come to my office, by
agreed-upon appointment, to examine the subject case file and such other
items...” Despite Respondent’s assertion that making the file available to
Bar Counsel was compliance with Rule 8.1(b), the Court disagrees. See
Attorney Grievance Comm'n of Md. v. Tanko, 427 Md. 15, 35-36 (2012)
(overruling Respondent’s exception that he had violated Rule 8.1); Attorney
Grievance Comm'n of Md. v. James, 385 Md. 637, 651-52, 654, 658-59
(2005). Moreover, although Respondent did send letters back to Petitioner,
the letters mostly contained inflammatory accusations against Petitioner
and, as stated supra, did not include any documents. When Petitioner
ultimately picked up Ms. Klein’s file, the file did not contain any of the
bank records required by Rule 16-606.1. See Attorney Grievance Comm'n
of Md. v. Fraidin, 438 Md. 172, 185, 200 (2014). Respondent finally
provided some records at his deposition on November 25, 2014, and then
additional documents the morning of trial, January 21, 2015, long after the
investigatory phase by Bar Counsel had ended.

F. MLRPC Rule 8.4. Misconduct

      [Rule omitted]

       MLRPC Rule 8.4(a) is subsumed by the other violations of the
Maryland Lawyers’ Rules of Professional Conduct, as found by the Court.
Having concluded that Respondent violated some of these rules, the Court
concludes that Respondent also committed a violation of Rule 8.4(a). See
Attorney Grievance Comm’n of Md. v. Foltz, 411 Md. 359, 411 (2009).
       Additionally, the MLRPC Rule violations are also a violation of
Rule 8.4(c). The Court of Appeals has found that dishonesty encompasses
conduct which shows a lack of honesty, probity or integrity of principle, a
lack of fairness and straightforwardness. See Attorney Grievance Comm'n
of Md. v. Thomas, 440 Md. 523, 555 (2014). Thus, “what may not legally
be characterized as an act of fraud, deceit or misrepresentation may still
evince dishonesty.” Moreover, Respondent’s mishandling of Ms. Klein’s
client funds by failing to provide invoices or keep accurate accounting
records, as well as his misrepresentations to bar counsel, were both
prejudicial to the administration of justice under MLRPC 8.4(d). See
Attorney Grievance Comm'n of Md. v. Brigerman, 441 Md. 23, 40 (2014);
Attorney Grievance Comm'n of Md. v. Mungin, 439 Md. 290, 315 (2014).
Finally, Respondent’s failure to comply with his former client’s requests

                                    26
      for papers following termination obstructed and delayed her ability to
      pursue her claim through new counsel.

Judge Bair also made findings as to mitigating and aggravating factors:

             Maryland Rule 16-757(b) provides that at a disciplinary hearing, “[a]
      respondent who asserts an affirmative defense or a matter of mitigation or
      extenuation has the burden of proving the defense or matter by a
      preponderance of the evidence.” At the hearing on January 21 and 22, 2015,
      Respondent presented no affirmative defenses or any matters of mitigation
      or extenuation.

              On January 26, 2015, however, the Respondent filed a request for
      judicial notice. He filed a corrected request on January 28, 2015. Petitioner
      filed a Response to Defendant’s Request for Judicial Notice on February 3,
      2015. In Respondent’s motion, he noted that “whether and how Respondent
      answered      [Ms.      Klein’s]    email     inquiries   concerning      the
      Addendum....became an issue." Respondent attached docket entries to his
      motion that show that during the time of these emails correspondence
      “Respondent was fully involved in defending himself against AGC’s
      accusations throughout the period in question.” According to Respondent,
      “it can be at least understood to some extent why written responses to
      Complainant Klein regarding these two inquiries were not made,” and thus,
      Respondent requested that the Court take judicial notice of the attached
      docket entries.

             The Court denied Respondent’s Request for Judicial Notice. With
      this motion, Respondent was attempting to enter possible mitigating factors
      into evidence after the trial had completed. The Court notes that the trial
      was a two-day trial, where Respondent‘s counsel made a closing argument
      on January 22, 2015. At no time did Respondent request that he be
      permitted to submit additional information or evidence. Moreover, no form
      of the word “mitigate” is contained in the transcript across both trial days.
      The Court finds that the Respondent has not proven any mitigating or
      extenuating circumstances.

             The Court of Appeals has identified certain aggravating factors that
      the Court considers in attorney discipline matters: (a) prior disciplinary
      offenses; (b) dishonest or selfish motive; (c) pattern of misconduct; (d)
      multiple offenses; (e) bad faith obstruction of the attorney disciplinary
      proceeding by intentionally failing to comply with rules or orders of the
      Commission; (t) submission of false evidence, false statements, or other
      deceptive practices during the attorney disciplinary proceeding; (g) refusal
                                           27
      to acknowledge wrongful nature of conduct; (h) vulnerability of the victim;
      (i) substantial experience in the practice of law; (j) indifference to making
      restitution; and (k) illegal conduct, including that involving the use of
      controlled substances. Attorney Grievance Comm’n of Md. v. Zhang, 440
      Md. 128, 171-72 (2014), reconsideration denied (Aug. 27, 2014).

             Factor (a), prior disciplinary offenses, is present in this case, to an
      extent. Respondent received a reprimand from Bar Counsel in May 2012
      relating to his personal bankruptcy filings “in which he included unverified
      and inaccurate information, some of which [were] offered under the penalty
      of perjury.” Attorney Grievance Comm’n of Md. v. Rand, 429 Md. 674, 724
      (2012) (Harrell, J., dissenting). In December, 2012, a petition against
      Respondent was dismissed because the Court of Appeals found that there
      was not clear and convincing evidence that Respondent had violated
      MLRPC Rule 1.4 Communication. Respondent also had an earlier petition
      against him dismissed when the Court found Respondent's delay in
      returning records to opposing counsel was not prejudicial to the
      administration of justice under MLRPC 8.4(d). Attorney Grievance
      Comm'n of Md. v. Rand, 411 Md. 83, 95-96 (2009).

             The case at issue involves multiple offenses implicating factor (d).
      The Respondent engaged in bad faith obstruction of the disciplinary
      proceeding by failing to comply with lawful requests for information,
      failing to timely comply with lawful requests for information, and making
      misrepresentations to Bar Counsel during the course of its investigation
      implicating factor (t). Finally, the Respondent has refused to acknowledge
      wrongful nature of conduct implicating factor (g) and has substantial
      experience in the practice of law implicating factor (i).


                                    II. Standard of Review

      We recently again articulated our oft-cited standards for reviewing attorney

disciplinary proceedings in Attorney Grievance v. Hodes, 441 Md. 136, 168, 105 A.3d

533, 552 (2014) as:

      This Court has original and complete jurisdiction over attorney discipline
      proceedings in Maryland. We conduct an independent review of the record
      and we accept the hearing judge's findings of fact unless shown to be
      clearly erroneous. Under our independent review of the record, we must
      determine whether the findings of the hearing judge are based on clear and
                                          28
         convincing evidence. With respect to exceptions, upon our review of the
         record, the hearing judge's findings of fact generally will be accepted unless
         they are clearly erroneous. A hearing judge's factual finding is not clearly
         erroneous if there is any competent material evidence to support it. As to
         the hearing judge's conclusions of law, such as whether provisions of the
         Maryland Rules of Professional Conduct were violated, our consideration is
         de novo.[19]

(internal citation omitted) (internal quotation omitted).

         Bar Counsel did not file any exceptions to Judge Bair’s findings of fact or

conclusions of law. Rand filed exceptions both to Judge Bair’s findings of fact and his

conclusions of law, suggesting that disciplinary action was not warranted, that his

conduct did not violate the Maryland Rules of Professional Conduct and that we should

dismiss this case.

                            III. Rand’s Exceptions to Findings of Fact

         We will address Rand’s exceptions to Judge Bair’s findings of facts seriatim.

         Rand first excepts to Judge Bair’s finding that he “did not, in fact, ever file the

addendum as instructed by Ms. Klein.” Regarding the filing of the addendum, Judge Bair

found:

         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,

19
     Rule 16–759(b)(1) provides:
         The Court of Appeals shall review de novo the circuit court judge's
         conclusions of law.

                                              29
      “[w]hen do you think [you] will be done with the final copy of the
      addendum and letter for the EEOC for my part?” On February 4, 2012,
      having not received any response, Ms. Klein again emailed Respondent
      stating, “[t]his is a second email about the addendum. I have one with my
      numbers and corrections. It does not look like the completed one. Would
      you please e-mail me the new addendum and hold off on sending it until I
      ok it?" Respondent provided an updated draft to Ms. Klein. On February 7,
      2012, Ms. Klein emailed Respondent stating, “I received the letter and
      complaint. It looks great. There is one small error. In the letter, middle
      paragraph on the second page the number should be 5. Other than that —
      great. Please sign my name and send it off.” Respondent never responded to
      this February 7th email. On February 23, 2012, having heard nothing from
      Respondent, Ms. Klein emailed him and asked: “[j]ust checking in on the
      addendum. Did you send it to the EEOC? If so, when was it received? How
      do we get the addendum actually attached to the original complaint? I don’t
      want it going in as a separate complaint with an additional examiner and a 6
      month lag in investigation.” Ms. Klein did not recall whether Respondent
      responded to this email. Respondent never provided Ms. Klein a final copy
      of “what was filed.” Based on the evidence provided, the Court finds that
      Respondent did not, in fact, ever file the addendum as instructed by Ms.
      Klein. Furthermore, Respondent did not advise Ms. Klein that the
      addendum had not been filed.


In support of his exception, Rand argues that Ms. Klein did not complain about a lack of

communication with respect to the addendum, “not in her initial complaint, in her

subsequent letter of response to Respondent, or in her testimony.” He further asserts that

Judge Bair’s later acknowledgment that, “Respondent included in the Reply information

which he had led Ms. Klein to believe had been filed, by addendum, in February….”,

evidences that the addendum was in fact filed.

      Ms. Klein testified during the hearing that she made several requests both by e-

mail and by letter to Rand requesting information on the status of the addendum and

whether it had been filed, and received no response. She directed Rand in an e-mail

February 7, 2012, to “Please sign my name and send [the addendum] off.” When pressed
                                         30
by Bar Counsel during the hearing about his lack of an independent recollection of how

the addendum was filed, Rand stated “It’s not filed.” Rand did not file the addendum

separately, as Ms. Klein instructed, but, instead, unilaterally incorporated it into a

response sent on April 6, 2012, without discussion with Ms. Klein. Judge Bair’s finding

that Rand did not file the addendum as instructed by Ms. Klein was supported by clear

and convincing evidence, and we overrule Rand’s exception.

       Rand next excepts to the finding that he “failed to advise Ms. Klein about the

ramifications of her retirement or potential constructive discharge, prior to November 30,

2011.” Judge Bair found:

       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.


During the hearing, Ms. Klein testified:

       [Bar Counsel]: And did Mr. Rand provide you with any advice about your
       retirement?

       [Ms. Klein]: Oh, he told me it would be better if I could hold off until the
       end of the year, and retire then. And I said, you know, as we discussed, I, I
       can’t hold off until the end of the year; I can make a semester, that’s it. And
       he said, well, if you have to retire, retire, and we’ll carry on from there.

       [Bar Counsel]: Did he give you any advice on how to retire?

       [Ms. Klein]: No.

                                             31
       [Bar Counsel]: And were there different options available to you as to how
       to retire?

       [Ms. Klein]: There was a different option, which was medical retirement,
       which I, I could have taken but I did not know about it at the time; all I
       knew about was standard retirement.


Rand, however, insists that Ms. Klein did not seek advice concerning her retirement or

the option of medical retirement prior to November 30, 2011.

       Judge Bair, assessing both the testimony of Ms. Klein and Rand, found Ms.

Klein’s testimony to be more credible regarding Mr. Rand’s discussion with her about her

retirement. We have stated that the hearing judge “is in the best position to assess first

hand a witness’s credibility”, Attorney Grievance v. Sheridan, 357 Md. 1, 17, 741 A.2d

1143, 1152 (1999), and “it is elementary that the judge ‘may elect to pick and choose

which evidence to rely upon.’” Id., quoting Attorney Grievance Comm’n v. Kemp, 303

Md. 664, 675, 496 A.2d 672, 677 (1985). Accordingly, we overrule Rand’s exception.

       Rand next excepts to the finding that he “failed to provide Ms. Klein invoices and

failed to request sufficient replenishment of his retainer, despite both being required in

his retainer agreement and by repeated requests for invoices from Ms. Klein.” Judge Bair

found, specifically:

       On March 28, 2013, Respondent sent an invoice and ledger to Ms. Klein
       charging her a total of $11,230. Ms. Klein estimated that she requested
       invoices from Respondent eight times during the course of the
       representation, and Respondent would say that they should let it ride and he
       would send bills. Respondent never gave an estimate of the current attorney
       fees, and the first invoice Respondent sent to Ms. Klein was the March 28,
       2013 invoice. Respondent testified that Ms. Klein never made any requests
       for bills. The Court credits the testimony of Ms. Klein and finds that she did

                                            32
       in fact request copies of her bills, and that the March 28, 2013 invoice was
       the first bill sent to her by Respondent.
              Both Mr. and Ms. Klein stated that they replenished the initial
       $1,500 retainer with two checks, both for $1,000, on December 22, 2011
       and January 19, 2012. Respondent’s ledger also shows these payments.
       Respondent testified that the ledger’s showing that a check had been
       deposited in January 2012 was made in error and that there was no deposit
       made on January 19, 2012. Based on all the evidence presented, the Court
       does not find Respondent’s testimony that the Kleins never made the
       second $1,000 payment in January 2012 credible, and accepts the testimony
       of Mr. and Ms. Klein. Thus, when Ms. Klein received the March 28, 2013
       invoice and ledger, she had already paid Respondent a total of $3,500.


       Ms. Klein testified that she had made requests for bills and invoices from Rand,

both by phone and in person, “maybe seven, eight times.” Rand testified that he did not

send any bills or invoices to Ms. Klein during the course of representation.

       Ms. Klein also testified that on two separate occasions Rand requested additional

funds for his retainer, but did not provide an invoice or billing statement at the time of the

request, although the fee agreement between Ms. Klein and Rand stated, in relevant part:

       1. Fees shall be based on time …

                                       *      *      *

       Therefore, it is agreed that Client shall pay the Attorney those monies
       necessary, on a 30-day, as-billed basis to maintain the retainer at its
       original level. It is further understood that four months prior to the trial of
       your matter, and from time to time thereafter as circumstances dictate, the
       retainer balance will be adjusted to reflect the Attorney’s estimate of full
       trial fees, costs and expenses.

                                       *      *      *

       5. Statement for services performed and costs advanced are due when
       rendered and Client agrees that in the event a statement remains unpaid for
       thirty (30) days, the Attorney shall be under no obligation to take any action
                                             33
         on behalf of Client and may take action to withdraw his appearance from
         any court action and proof of nonpayment shall represent Client’s consent
         thereto.

Judge Bair’s findings were based on clear and convincing evidence and supported by the

record and we, therefore, overrule this exception.

         Rand excepts to the finding that “Respondent did not create and maintain records

required by Maryland Rule 16-606.1(a)(2) and (a)(3).” Judge Bair, in relevant part,

found:

         At trial, Respondent testified that his software program, PCLaw, generates
         reports which have “all the activity, financial, as well as time input. . .” for
         each client. Respondent also represented that the client ledger from the
         PCLaw program is “always the same” and that once the entries are made
         they cannot change, but the Court notes that when comparing the ledgers
         for the same client printed on different days, there was in fact different
         information. Moreover, Respondent stated that he did not incorporate bank
         statements into Ms. Klein’s file.

         As discussed supra, Respondent acknowledged he was incorrect in his
         initial assertion that the Kleins had paid him $4,000. At trial, the Kleins
         testified that they believed they had paid the Respondent a total of $3,500.
         The Respondent testified that the Kleins paid him a total of $2,500. Had
         Respondent kept more accurate records that included bank statements, he
         would not have needed to rely on his incorrect recollection. The Court finds
         the Kleins’ testimony to be more credible than the Respondent’s.
         Additionally, had the records been properly kept, there would not have
         been duplicate charges, or at the very least Respondent would have realized
         his errors sooner.


Rand argues that the PCLaw program he used to maintain client ledgers is prima facie

compliant with Rule 16-606.1, that his records “fully account for every cent paid” by Ms.

Klein and that the duplicate entries and late addition of a $300 trust account disbursement

were simply clerical errors. Received in evidence was a ledger for Ms. Klein’s case

                                               34
printed on January 20, 2015 that included entries not appearing on a ledger printed

earlier, on April 3, 2013, which led Judge Bair to find that “when comparing the ledgers

for the same client printed on different days, there was in fact different information.” The

additional entries on the January 20, 2015 ledger detailed the payment of $300 from the

trust account to cover fees, and the resulting zero balance in Ms. Klein’s trust account.

Again, we overrule this exception as the finding was supported by clear and convincing

evidence.

       Judge Bair also found that Rand “failed to provide Ms. Klein with a copy of her

file upon his termination”, to which Rand excepts. Rand asserts that he “voluntarily

provided [Ms. Klein] with her Narrative, Addendum, and other documents requested by

her free of charge just prior to her discharging him.” He urges that upon termination he

discussed with Ms. Klein that she had sufficient information to proceed with her claim

against the school system. Judge Bair’s finding, however, was not related to the

sufficiency of the information provided to Ms. Klein by Rand, but was concerned with

whether Rand had supplied his entire file to Ms. Klein.

       Ms. Klein had made several requests, both generally and specifically, for her file

and any accompanying documents: on March 7, 2013, Ms. Klein stated in an e-mail to

Rand “Please forward my file and any other information pertaining to my case to my

home address[.]”; this was followed, on March 22, 2013, by an e-mail specifically

requesting her signed EEOC charges, Rand’s contract and bills and the March 17, 2012

rebuttal from the school system.


                                            35
      Ms. Klein testified regarding the documents she had in her possession at the time

she terminated Rand’s services, which included “letters that [she had] written to a couple

of people” and “the judgment”. She testified she did not have the school system’s

position statement, her original complaint with the EEOC or any correspondence between

Rand and the EEOC regarding the conciliation process. Rand testified that he had not

provided Ms. Klein with any of his correspondence with the EEOC. We overrule this

exception, as the finding was supported by clear and convincing evidence.

      Rand further excepts to the finding that he misrepresented his having “won” Ms.

Klein’s EEOC case and been awarded attorneys’ fees. Judge Bair found:

      On April 15, 2013, Ms. Klein filed a complaint with the Attorney
      Grievance Commission. On April 26, 2013, Bar Counsel forwarded a copy
      of Ms. Klein’s complaint to Respondent and in an accompanying letter,
      requested a written response to the complaint within fifteen days. On May
      10, 2013, Respondent sent a letter to Bar Counsel in response to Ms.
      Klein’s complaint. That letter included the following statements:
             1. “I won her case (including an award of attorney’s fees)...”
             2. “Ms. Klein paid $4,000. . .” and
             3. “When the EEOC ruled in her favor, it also ruled that I was
             entitled to attorney’s fees.”

      The letter conveys that Respondent believes Ms. Klein’s complaint arises
      out of a fee dispute.

                                     *      *      *

      Respondent admitted that he made misrepresentations to Bar Counsel. He
      admitted that he misrepresented the amount of money paid to him. Second,
      Respondent admitted that it was an “exaggeration” that he was awarded
      attorney’s fees by the EEOC. Indeed, he was not awarded attorney’s fees.

In his May 10, 2013 letter to Bar Counsel, Rand stated:

      This is another case where the client signed a fee agreement based on a
      reduced charging rate (because she was a public school educator), I won her
                                          36
       case (including award of attorney’s fees) . . . When the EEOC decided the
       case in her favor, it also ruled that I was entitled to my attorneys fees.”


Rand argues that, by securing a determination from the EEOC that Ms. Klein was

discriminated against at her school, he achieved Ms. Klein’s goal and, therefore, “won.”

Further, by responding to Bar Counsel that he had been awarded attorneys’ fees, Rand

asserts that, rather than a misrepresentation, his statement was merely an exaggeration; it

was his expectation that he would receive an award of fees.

       The determination by the EEOC, dated January 28, 2013, of harassment because

of age and race does not assure that Rand was entitled to attorneys’ fees and in fact,

makes no mention of any:

       Based on this analysis, I have determined that the evidence obtained during
       the investigation establishes that [Principal] harassed [Ms. Klein] because
       of her age and race, in violation of the ADEA and Title VII. EEOC is
       unable to conclude that the information obtained establishes any other
       violation of the statutes.

       This determination is final. . . . Therefore, I invite the parties to join with
       the Commission in reaching a just resolution of this matter.

We overrule this exception and determine that Judge Bair’s finding was based on clear

and convincing evidence.

       Rand further excepts to the finding he “failed to respond to Bar Counsel’s requests

for information”, asserting that he, eventually, provided all of the requested information.

Judge Bair found:

       On August 26, 2013, Bar Counsel sent a letter to Respondent advising him
       that Ms. Klein’s complaint had been docketed for further investigation and
       asking “that you reconsider your position and provide me with the
       information and documentation I requested in my letter of June 11, 2013
                                          37
       within fifteen (15) days. My investigator, William M. Ramsey, will be in
       touch with you in the near future to make arrangements to pick up the
       requested documentation if you are unable to deliver it to our office....You
       are also advised that the Maryland Rules of Professional Conduct 8.1
       provides that a lawyer, in connection with a disciplinary matter, shall not
       knowingly fail to respond to a lawful demand for information by a
       disciplinary authority.”

       On September 9, 2013, Respondent requested an extension of time to
       “formulate [his] response.” On September 11, 2013, Bar Counsel granted
       Respondent’s request for an extension and requested the information and
       documentation be provided no later than September 30, 2013. On
       September 30, 2013, Respondent requested a second extension, stating that
       his schedule had “precluded [his] finalizing a reasonable response.” Bar
       Counsel granted Respondent’s request for a second extension on October 8,
       2013.

       On October 11, 2013, Respondent mailed Bar Counsel a letter stating that
       he had “taken the entire file to the printer and it will be here for pickup by
       your Investigator from this point forward. If you do not believe this is an
       adequate response, please contact me." Sometime around late October or
       early November 2013, a representative from Bar Counsel came and picked
       up Ms. Klein’s client file; no bank statements had been produced, but the
       ledger was included in the file. On May 9, 2014, Respondent finally
       provided some bank statements for “months that showed every transaction
       on the client ledger that had been made with her escrow money,” cancelled
       checks, and deposit slips. Respondent did not provide all bank records for
       the entire time Ms. Klein was his client, but stated that he believed that
       providing the ledger was sufficient to comply with Bar Counsel’s request
       for “all records created and maintained pursuant to [Maryland Rule 16-
       606.1].”

       On November 25, 2014, Petitioner’s counsel took Respondent’s deposition.
       During his deposition, Respondent agreed to provide additional
       documentation related to Ms. Klein’s funds; namely, documentation
       evidencing whether there remained $300 of Ms. Klein’s funds in trust or
       whether the funds had been withdrawn. Besides that information,
       Respondent believed he had provided all documents relating to Maryland
       Rule 16-606.1 and MLRPC 1.15. On the morning of trial, January 21, 2015,
       Respondent provided selected additional bank account statements.


(internal citations omitted).
                                            38
      Rand initially replied to Bar Counsel’s request for information, sent on April 26,

2013, on May 10, 2013, but provided no documentation. Bar Counsel, in a second letter

dated June 11, 2013, requested the following specific documentation:

      1. A copy of his retainer agreement with Ms. Klein;
      2. Copies of all records created and maintained pursuant to Maryland Rule
      16-606.1 for the receipt, maintenance and disbursement of Ms. Klein’s
      funds;
      3. Copies of all correspondence between himself and Ms. Klein including
      all email correspondence; and
      4. Any and all documentation to support the billing entries in the undated
      “Client Ledger” provided to Bar Counsel by Ms. Klein including but not
      limited to copies of all correspondence related to the representation of Ms.
      Klein, notes of all telephone conversations or meetings relating to the
      representation of Ms. Klein and all filings.


On June 28, 2013, Rand replied in a lengthy letter to Bar Counsel, yet provided none of

the requested documentation. Bar Counsel again sought the documentation from Rand on

August 26, 2013, stating, in part, “I ask that you reconsider your position and provide

[Bar Counsel] with the information and documentation requested in [the] letter of June

11, 2013 within fifteen (15) days.” In response to Bar Counsel’s request, Rand asked for,

and was granted, an extension on September 9, 2013 and again on September 30, 2013.

Bar Counsel eventually collected documents from Rand in late October or early

November of 2013, but bank statements were missing. Rand provided some bank

statements on May 9, 2014, and agreed during his deposition on November 25, 2014 to

provide additional documentation, which was received by Bar Counsel on January 21,

2015. Judge Bair’s finding that Rand failed to respond to Bar Counsel’s requests was

supported by clear and convincing evidence, and we overrule this exception.

                                           39
       We overrule each of the exceptions raised by Rand as to the findings of fact. All of

Judge Bair’s findings of fact were supported by clear and convincing evidence in the

record.

       We now turn to Rand’s various exceptions to Judge Bair’s conclusions of law.

                          IV. Rand’s Exceptions to Conclusions of Law

       Rand also filed exceptions to Judge Bair’s Conclusions of Law in which Judge

Bair determined that Rand violated a number of our Rules of Professional Conduct. We

review the hearing judge’s conclusions of law de novo, addressing each of Rand’s

exceptions. Rule 16-759(b).

       The initial exceptions Rand interposes are to Judge Bair’s conclusions that he

violated Rules 1.4(a) and 1.5(a) related to Rand’s failure to provide Ms. Klein with

invoices when he requested replenishment of the “evergreen” retainer as well as by

failing to file the addendum and communicating with Ms. Klein about his decision not to

file it. Rule 1.4(a) provides:

       A lawyer shall:

              (1) promptly inform the client of any decision or circumstance with
              respect to which the client's informed consent, as defined in Rule
              1.0(f), is required by these Rules;

              (2) keep the client reasonably informed about the status of the
              matter;

              (3) promptly comply with reasonable requests for information; and

              (4) consult with the client about any relevant limitation on the
              lawyer's conduct when the lawyer knows that the client expects
              assistance not permitted by the Maryland Lawyers' Rules of
              Professional Conduct or other law.
                                           40
Rule 1.5 provides, in relevant part:

       (a) A lawyer shall not make an agreement for, charge, or collect an
       unreasonable fee or an unreasonable amount for expenses. The factors to be
       considered in determining the reasonableness of a fee include the
       following:

                                       *     *      *

               (4) the amount involved and the results obtained[.]

Rand argues that he did not violate Rule 1.4(a) or 1.5(a), as he was not required to send

monthly invoices to Ms. Klein and the addendum was incorporated into a response sent

to the EEOC.

       The fee agreement between Rand and Ms. Klein included an “evergreen” clause,20

which provided that Rand would request replenishment to the initial level of $1,500, by

having Ms. Klein pay “those monies necessary, on a 30-day, as-billed basis[.]” Rand’s

obligation, under the agreement, was to charge his time spent on Ms. Klein’s matter to

the “evergreen” retainer, and, as needed, request replenishment of the retainer by sending

a statement (invoice) to Ms. Klein.

       Judge Bair found that on two occasions Rand requested, and received, $1,000 to

replenish the retainer, but did not provide Ms. Klein with a statement for services, as


20
  An “evergreen” retainer has been defined as:
       An “evergreen” retainer mirrors the tree after which it was named. The
       debtor is responsible for replenishing the retainer after his attorney has
       drawn down or used that retainer for compensation for services rendered.
In re GSB Liquidating Corp., No. 94 B 24672, 1995 WL 521528, at *14 n.13 (Bankr.
N.D. Ill. Aug. 21, 1995)

                                             41
necessitated by his retainer agreement. In addition, Judge Bair found that Ms. Klein

requested, several times, that Rand send her an invoice. We recently stated in Attorney

Grievance v. Green, 441 Md. 80, 91-2, 105 A.3d 500, 507-08 (2014), that a failure to

provide invoices, as agreed upon in the attorney’s fee agreement, violated Rules 1.4(a)

and 1.5(a). In the present case, Rand’s failure to provide an invoice both when requested

by Ms. Klein and when he requested replenishment of the retainer, in derogation of the

terms of his fee agreement, violated Rules 1.4(a) and 1.5(a).

       As to the second aspect of the violation of Rule 1.4(a), Judge Bair found that Rand

did not file the addendum as instructed in Ms. Klein’s February 7, 2011 e-mail, but

incorporated it into a response filed with the EEOC without ever informing Ms. Klein.

We have held that failure to keep the client informed and failure to respond to client

requests for information violates Rule 1.4(a). Attorney Grievance v. Brown, 426 Md. 298,

321-22, 44 A.3d 344, 358 (2012) (failure to inform clients of discovery sanctions, failure

to notify a client that his claims had been dismissed and failure to respond to clients’

numerous requests about the status of their cases violated Rule 1.4(a)); Attorney

Grievance v. McCulloch, 404 Md. 388, 398-99 946 A.2d 1009, 1015 (2008) (failure to

advise the client of the status of efforts, failure to keep the client informed and failure to

respond to numerous requests about the status of the case violated Rule 1.4(a)).

Therefore, we conclude that Rand also violated Rule 1.4(a) with respect to the addendum

when he did not inform Ms. Klein of his unilateral decision to incorporate the addendum

into a different document.


                                             42
       Rand also excepts to Judge Bair’s conclusion that he violated Rule 1.4(b) when he

“failed to communicate with Ms. Klein about potential ramifications of her early

retirement in the fall of 2011.” Rand argues that no evidence of any adverse consequence

to Ms. Klein having taken early retirement was presented at trial and that Ms. Klein did

not discuss with him her retirement before she retired in November 2011. Judge Bair

found, to the contrary, that Ms. Klein discussed her situation with Rand prior to her

retirement in November 2011 and that Rand failed to advise Ms. Klein regarding both her

decision to retire early and the option of a medical retirement and the potential effects of

either on her EEOC complaint.

       Rule 1.4(b) states, “A lawyer shall explain a matter to the extent reasonably

necessary to permit the client to make informed decisions regarding the representation.”

We have determined that failure to provide a client with accurate information to aid in

making informed decisions violates Rule 1.4(b). Attorney Grievance v. Narasimhan, 438

Md. 638, 661-62, 92 A.3d 512, 525 (2014) (failure to provide complete and accurate

information and advice to allow client to make an informed decision on employee

immigration violated Rule 1.4(b)). In the present case, Rand at no time advised Ms. Klein

of her option to pursue medical retirement and the impact of that type of retirement on

her EEOC case, and, therefore, violated Rule 1.4(b).

       Rand further excepts to Judge Bair’s conclusion that Rand violated Maryland

Rules 16-606.1(a)(2) and (a)(3), and in so doing, violated Rule 1.15(a) when he sent Ms.

Klein an incomprehensible ledger containing duplicate entries that made it impossible to

determine how much Rand had been paid and how much was owed by Ms. Klein.
                                    43
Maryland Rule 16-606.1 governs record-keeping for attorney trust accounts, and

provides, in relevant part:

       (a) Creation of Records. The following records shall be created and
       maintained for the receipt and disbursement of funds of clients or of third
       persons:

                                         *        *    *

       (2) Deposits and Disbursements. A record for each account that
       chronologically shows all deposits and disbursements, as follows:

              (A) for each deposit, a record made at or near the time of the deposit
              that shows (i) the date of the deposit, (ii) the amount, (iii) the
              identity of the client or third person for whom the funds were
              deposited, and (iv) the purpose of the deposit;

              (B) for each disbursement, including a disbursement made by
              electronic transfer, a record made at or near the time of disbursement
              that shows (i) the date of the disbursement, (ii) the amount, (iii) the
              payee, (iv) the identity of the client or third person for whom the
              disbursement was made (if not the payee), and (v) the purpose of the
              disbursement;

              (C) for each disbursement made by electronic transfer, a written
              memorandum authorizing the transaction and identifying the
              attorney responsible for the transaction.


Maryland Rule 16-606.1 is included under Rule 1.15(a), which provides, in part:

       A lawyer shall hold property of clients or third persons that is in a lawyer's
       possession in connection with a representation separate from the lawyer's
       own property. Funds shall be kept in a separate account maintained
       pursuant to Title 16, Chapter 600 of the Maryland Rules, and records shall
       be created and maintained in accordance with the Rules in that Chapter. . .
       Complete records of the account funds and of other property shall be kept
       by the lawyer and shall be preserved for a period of at least five years after
       the date the record was created.

(emphasis added).

                                             44
       Rand urges that his billing mistakes were simply clerical and that these clerical

errors did not violate Maryland Rule 16-606.1. The factual findings of Judge Bair, which

we have upheld, however, reflect that Rand’s ledgers, reflecting expenses and payments,

were systematically confusing and sometimes duplicative. We have held that the

inadequacy of maintaining records related to client funds constitutes violations of Rules

16-606.1 and 1.15(a). Attorney Grievance v. Harmon, 433 Md. 612, 625, 72 A.3d 555,

563 (2013) (misidentification of the client from whom an attorney had received and

deposited $300, prior to an overdraft, and failure to maintain records, made at the time of

the disbursements and deposits to the trust account—showing the date of the deposit, the

amount deposited, the payee, the identity of the client and the purpose for the

transaction—indicated inadequate record-keeping in violation of Maryland Rule 16-601.1

and Rule 1.15(a)). We, therefore, conclude that Rand violated Rules 16-606.1 and 1.15(a)

by failing to create and maintain adequate client records.

       Judge Bair next concluded that Rand violated Rule 1.16(d) when he failed to

provide Ms. Klein with a copy of her file upon termination of his representation. Rule

1.16(d) provides:

       Upon termination of representation, a lawyer shall take steps to the extent
       reasonably practicable to protect a client's interests, such as giving
       reasonable notice to the client, allowing time for employment of other
       counsel, surrendering papers and property to which the client is entitled and
       refunding any advance payment of fee or expense that has not been earned
       or incurred. The lawyer may retain papers relating to the client to the extent
       permitted by other law.

(emphasis added).


                                            45
       Judge Bair concluded that, by “fail[ing] to provide invoices and [ ] to keep proper

billing records for this client, [Rand] could not then assert a retaining lien on [Ms.

Klein’s] file based on his questionable billing practices.” Additionally, Judge Bair found

that Ms. Klein was entitled to the papers Rand had in his possession, because of the

impending conciliation of her claim at the EEOC. Rand excepts to Judge Bair’s

conclusions and argues that he was justified in asserting a retaining lien as a result of Ms.

Klein’s refusal to pay his fee; it is to the attorney retaining lien that we now turn.

       Under our jurisprudence, an attorney possesses the right to assert “a retaining lien

on all papers, securities and money belonging to his client which comes into his

possession in the course of his professional employment.” Ashman v. Schecter, 196 Md.

168, 173, 76 A.2d 139, 141-42 (1950). In Schecter, we discussed the retaining lien as

differentiated from a charging lien:

       One is a retaining lien on all papers, securities and money belonging to his
       client which come into his possession in the course of his professional
       employment. This is a general lien which gives him the right to retain such
       things until all his charges against his client are paid. As the name implies,
       it is dependent upon possession. It is, generally speaking, a passive lien and
       cannot be actively enforced either at law or in equity. The other lien is a
       charging lien, which binds a judgment recovered through the attorney's
       efforts.

Id. at 173-74, 76 A.2d 139, 141-42 (1950) (internal citations omitted). In 1995, Maryland

Rule 2-652 was adopted, setting forth the rule for enforcement of attorney liens, covering




                                              46
both the common law retaining lien and the statutory charging lien.21 Md. Rule 2-652

(1996 Repl. Vol.).


21
  The attorney charging lien was established by the Legislature in 1985, under Section
46 of Article 10. Md. Code (1957, Repl. Vol. 1987). Under a charging lien, the attorney
could attach a lien for unpaid fees and compensation on certain judgments entered in
favor of the client. In 1989, Section 46 of Article 10 was recodified and incorporated into
Section 10-501 of the Business Occupations and Professions Article. Md. Code, Bus.
Occ. & Prof. § 10-501 (1989).
   Maryland Rule 2-652, which addresses both the retaining and charging liens, provides:

       (a) Retaining lien. Except as otherwise provided by the Maryland Lawyers'
       Rules of Professional Conduct, an attorney who has a common-law
       retaining lien for legal services rendered to a client may assert the lien by
       retaining the papers of the client in the possession of the attorney until the
       attorney's claim is satisfied.

       (b) Statutory lien. An attorney who has a lien under Code, Business
       Occupations and Professions Article, § 10-501, may assert the lien by
       serving a written notice by certified mail or personal delivery upon the
       client and upon each person against whom the lien is to be enforced. The
       notice shall claim the lien, state the attorney's interest in the action,
       proceeding, settlement, judgment, or award, and inform the client or other
       person to hold any money payable or property passing to the client relating
       to the action, proceeding, settlement, judgment, or award.

       (c) Adjudication of Rights and Lien Disputes.

         (1) When a circuit court action has been filed. If a lien asserted
         pursuant to this Rule relates to an action that has been filed in a circuit
         court of this State, on motion filed by the attorney, the attorney's
         client in the action, or any person who has received a notice pursuant
         to section (b) of this Rule, the court shall adjudicate the rights of the
         parties in relation to the lien, including the attorney's entitlement to a
         lien, any dispute as to the papers subject to a lien under section (a) of
         this Rule, and the amount of the attorney's claim.

         (2) When no circuit court action has been filed. If a lien is asserted
         pursuant to this Rule and a related action has not been filed in a circuit
         court of this State, the attorney, the attorney's client, or any person
                                                                             (continued . . .)
                                            47
       A retaining lien permits the attorney to “secure” his claim for unpaid fees through

retention of client property in his possession. See C. Wolfram, Modern Legal Ethics, §

9.6.3, Attorney Liens, 558-59 (1986). The attorney holds the property until the client pays

the balance of the fee owed or possibly provides some other security.

       The retaining lien is predicated on “legal services rendered to a client.” Md. Rule

2-652(a) (1996 Repl. Vol.). We noted in Attorney Grievance v. Sheridan, 357 Md. 1, 34,

741 A.2d 1143, 1161 (1999), that, essentially, the client is coerced into paying the fee

charged for the legal services provided, “because of the embarrassment, inconvenience or

worry caused by the attorney’s asserting the lien.”.

       One predicate, of course, to the assertion of a retaining lien is actual possession of

client property. Attorney Grievance v. Potter, 380 Md. 128, 163, 844 A.2d 367, 387

(2004) (“A retaining lien depends upon the attorney having possession of the client’s

papers.”); Diamond v. Diamond, 298 Md. 24, 467 A.2d 510 (1983) (attorney possessed

only a draft, not the actual funds, and, therefore, could not assert a lien on the funds);

Campen v. Talbot Bank of Easton, 271 Md. 610, 319 A.2d 125 (1974) (an attorney did

not possess funds held in escrow by his agent and, therefore, did not have a retaining lien

on the funds); Tucker v. Dudley, 223 Md. 467, 164 A.2d 891 (1960) (funds collected and


(. . . continued)
            who has received a notice pursuant to section (b) of this Rule may file
            a complaint with a circuit court to adjudicate the rights of the parties
            in relation to the lien, including the attorney's entitlement to a lien,
            any dispute as to the papers subject to a lien under section (a) of this
            Rule, and the amount of the attorney's claim.
Md. Rule 2-652 (2015 Repl. Vol.)

                                             48
held by bank were not reduced to possession by attorney, and no attorney lien was held);

Schecter, 196 Md. 168, 76 A.2d 139 (1950) (no attorney retaining lien to secure fees

exists on real property).

       The attorney also must have performed services for the client, for which the

attorney was entitled to recompense, in order to validly assert the retaining lien. See

Attorney Grievance Comm’n v. McIntire, 286 Md. 87, 405 A.2d 273 (1979) (no retaining

lien where “actions were not predicated on any application of principles of law governing

a quantum meruit recovery and justifying the assertion of a lawyer’s retaining lien on

check proceeds”). Important in the instant case and to the validity of the retaining lien

Rand asserted on Ms. Klein’s papers is whether the fee that Rand asserted of $11,230

bore a discernible reasonable relationship to the services that he performed and was in

compliance with the fee agreement with Ms. Klein.

       In Matter of Tillman, 462 S.E.2d 283 (S.C. 1995), the client hired Tillman to

represent her following an automobile accident. Id. at 284. They signed a retainer

agreement providing for a contingent fee or, in the event Tillman was discharged prior to

a settlement or verdict, an hourly rate of $105. Id. The client discharged Tillman prior to

a resolution of the case and requested her file. Id. Tillman refused to turn over the file and

demanded payment of $2,400. Id. His time record, however, indicated he had only spent

5.6 hours on the matter. Id. The client disputed the fee charged and hired new counsel,

although Tillman continued working on the file after termination, sending a demand letter

to the client’s insurance carrier, and refused, among other things, to turn over the client


                                             49
file. Id. The Supreme Court of South Carolina, in reviewing whether the attorney could

assert the retaining lien, stated:

       Further, respondent cannot meet his burden of showing the circumstances
       justified assertion of the common law retaining lien here. In order to
       establish the right to the lien, he must show, among other things, that the
       client “deliberately refus[ed] to pay a fee [that was] clearly agreed upon and
       is due.”

Id. at 285 (alteration original). The Court further determined that the attorney could not

“show even a good faith basis for asserting a retaining lien”. Id. at 286.

       An attorney, at the time he asserts a retaining lien, must inform the client of the

liquidated amount of unpaid fees and expenses. Reasonably clear and understandable

substantiation of how the attorney arrived at those liquidated amounts must also be

offered. In reaching this conclusion, we do not say that any dispute over unpaid fees or

expenses initiated by the client vitiates a retaining lien, or that an honest mistake in

calculation obviates the lien.

       In the instant case, Rand asserted in his e-mail dated March 28, 2013 that he was

entitled to a fee of $11,230 and submitted confusing and duplicative ledger entries to Ms.

Klein as the basis for his fee. Rand had not complied with the tenets of his own fee

agreement prior to asserting the retaining lien when he failed to submit invoices upon

replenishment, so that not only was the fee agreement breached but also Ms. Klein had no

idea what she may have owed justifiably for services rendered. As a result, Rand was not

entitled to assert a retaining lien for the then-claimed balance of his asserted fee.

       Rand also argues, however, even were his retaining lien to lack validity, that he

did not violate Rule 1.16(d) by failing to give Ms. Klein her file, because Ms. Klein
                                          50
already had the Narrative and Addendum and could obtain other documents from the

EEOC or the school system. Judge Bair found that Ms. Klein was entitled to the

documents in Rand’s possession, because of the impending EEOC conciliation process;

we agree. We, therefore, overrule Rand’s exception and conclude that Rand violated Rule

1.16(d) when he refused to provide Ms. Klein with her file.

       Rand further excepts to Judge Bair’s conclusion that Rand violated Rules 8.1(a)

and (b) when he knowingly made misrepresentations to Bar Counsel about his having

“won” Ms. Klein’s case and an award of attorneys’ fees and “knowingly and

intentionally” failed to respond to requests for information. Rule 8.1 provides:

       An applicant for admission or reinstatement to the bar, or a lawyer in
       connection with a bar admission application or in connection with a
       disciplinary matter, shall not:

              (a) knowingly make a false statement of material fact; or

              (b) fail to disclose a fact necessary to correct a misapprehension
              known by the person to have arisen in the matter, or knowingly fail
              to respond to a lawful demand for information from an admissions or
              disciplinary authority, except that this Rule does not require
              disclosure of information otherwise protected by Rule 1.6.


Rand asserts that his statements that “I won her case (including an award of attorney’s

fees)” and “When the EEOC ruled in her favor, it also ruled that I was entitled to

attorneys fees” in his May 10, 2013 letter to Bar Counsel were not material with respect

to his claim for fees. He further argues that his letter of June 28, 2013 and other

correspondence with Bar Counsel simply set out initial conditions and requested

extensions. On June 28, 2013, Rand wrote Bar Counsel, stating that:

                                            51
       It is in light of this administrative apparatus and personal history with you
       that I have concluded, at my peril, that your demand for “information” is
       unreasonable and therefore invalid. However, in recognition of my duty to
       respond and to disclose under Rule 8.1, I will allow you or your
       investigator to come to my office, by agreed-upon appointment, to examine
       the subject case file and such other items for which you can demonstrate
       some articulable “probable cause”.

       We upheld Judge Bair’s finding that Rand misrepresented his having “won” Ms.

Klein’s case, when, in fact, the EEOC had only determined that she had suffered

discrimination. The EEOC, in its determination, recommended conciliation between the

parties and, in fact, the case was ongoing at the time Ms. Klein terminated Rand’s

representation.

       Judge Bair also found that Rand had misrepresented to Bar Counsel his being

awarded attorneys’ fees based on the EEOC’s determination that Ms. Klein had

experienced discrimination. The determination that Ms. Klein had suffered harassment

did not guarantee an award of attorneys’ fees, and no mention of fees was made by the

EEOC.

       Finally, Rand failed to provide documents in his June 28, 2013 response to Bar

Counsel, and, after receiving the two extensions, produced an incomplete file. Judge Bair

found that none of the specified documents requested by Bar Counsel in the May 10,

2013 letter to Rand was contained in his response on June 28, 2013, prompting Bar

Counsel to again request the information on August 26, 2013. Rather than provide the

requested documents, Rand sought two extensions. Judge Bair further found that when

Rand did provide documents for Bar Counsel to pick up in late October or early


                                            52
November of 2013, the documentation was incomplete. We upheld Judge Bair’s finding

that Rand failed to respond to Bar Counsel’s requests for information.

       We have stated that, “[a] Respondent has an obligation to provide Bar Counsel

with any relevant material requested in the course of an investigation.” Attorney

Grievance v. Khandpur, 421 Md. 1, 12, 25 A.3d 165, 172 (2011), quoting Attorney

Grievance v. Obi, 393 Md. 643, 654, 904 A.2d 422, 428 (2006). “A request for

information by Bar Counsel does not have to come in any particular form in order to

trigger the compliance requirements of MRPC 8.1.” Id. at 12, 25 A.3d at 172 (where Bar

Counsel twice asked for the attorney’s IOLTA, and receipt of neither the documents nor a

satisfactory explanation for their absence, presented clear and convincing evidence the

attorney violated Rule 8.1(b)). A refusal to timely respond to a request from Bar Counsel

for information violates Rule 8.1(b). Harmon, 433 Md. at 628, 72 A.3d at 564-65

(“Although we acknowledge that Harmon did, at times, make some effort to respond to

Bar Counsel’s requests, his haphazard and incomplete cooperation, as evidenced by his

letters dated August 22, September 22 (although not received by Bar Counsel), and

February 5, does not justify his failure to provide the records requested by Bar Counsel or

respond to Bar Counsel’s other correspondence.”); Attorney Grievance v. Tanko, 427 Md.

15, 35, 45 A.3d 281, 293 (2012) (refusal to provide Bar Counsel with the client’s file,

despite repeated requests and receipt of approval from the client, and waiting until the

day of the hearing to turn over the client file violated Rule 8.1(b)). We conclude that

Rand violated Rules 8.1(a) and (b), and overrule his exception.


                                            53
        Finally, Rand excepts to Judge Bair’s conclusion that Rand violated Rules 8.4(a),

(c) and (d) when he violated others of the Maryland Rules of Professional Conduct,

mishandled Ms. Klein’s funds by failing to provide invoices and keep accurate billing

records and misrepresented information to Bar Counsel. Rule 8.4 provides, in relevant

part:

        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;

                                       *      *      *

               (c) engage in conduct involving dishonesty, fraud, deceit or
               misrepresentation;

               (d) engage in conduct that is prejudicial to the administration of
               justice[.]

Rand argues, as he did earlier, that he was not required to provide invoices, that he kept

accurate financial records and that he merely “exaggerated”, but did not misrepresent,

information to Bar Counsel. Each of these exceptions has been overruled.

        We have previously held that violations of other rules under the Maryland Rules

of Professional Conduct constitute a violation of Rule 8.4(a). Attorney Grievance v. Foltz,

411 Md. 359, 411, 983 A.2d 434, 465 (2009) (violations of Rules 1.15, 8.4(c) and (d) and

Maryland Rule 16-607 violated Rule 8.4(a)). We already have concluded that Rand

violated Rules 1.4, 1.5, 1.15(a), 1.16(d), 8.1(a) and (b) and Rule 16-606.1, and also

conclude that by so doing he violated Rule 8.4(a).


                                             54
          Rand, in arguing that he did not misrepresent information to Bar Counsel, excepts

to the conclusion by Judge Bair that he violated Rule 8.4(c). Judge Bair determined that

Rand violated 8.4(c), because he failed to keep Ms. Klein informed as to the status of the

addendum as well as his services provided and the cost thereof, in addition to Rand’s

misrepresentations to Bar Counsel of his having “won” Ms. Klein’s case and his having

been awarded attorneys’ fees.

          Rule 8.4(c) is violated by making misrepresentations to the client, which includes

the concealment of material information from the client. Brown, 426 Md. at 324, 44 A.3d

at 359-60 (misrepresenting the status of the case as pending and concealing dismissal of a

claim from the client); see Attorney Grievance v. Hamilton, 444 Md. 163, 193, 118 A.3d

958, 975 (2015) (misrepresenting the filing of papers in circuit court and failure to

maintain the required financial records relating to the fee violated Rule 8.4(c)). These

misrepresentations need not be intentional. Attorney Grievance v. Bleecker, 414 Md. 147,

169, 994 A.2d 928, 941 (2010); Attorney Grievance v. Harris, 403 Md. 142, 939 A.2d

732 (2008). In the present case, Rand failed to inform Ms. Klein that the addendum was

not filed in February, or that he had unilaterally incorporated the addendum into another

document. Rand also misrepresented to Bar Counsel, and Ms. Klein, that he “won” her

case and was awarded attorney fees. We conclude, therefore, that Rand violated Rule

8.4(c).

          Rand excepts to Judge Bair’s conclusion that he violated Rule 8.4(d) when he

failed to provide an invoice to Ms. Klein, failed to keep accurate records, made

misrepresentations to Bar Counsel and asserted an improper retaining lien. We have held,
                                          55
however, that “[c]onduct which is likely to impair public confidence in the profession,

impact the image of the legal profession and engender disrespect for the court is conduct

prejudicial to the administration of justice.” Attorney Grievance v. Agbaje, 438 Md. 695,

717, 93 A.3d 262, 274 (2014). We have also held that failure to provide information in a

timely manner to Bar Counsel is conduct prejudicial to the administration of justice.

Attorney Grievance v. Brigerman, 441 Md. 23, 40, 105 A.3d 467, 477 (2014) (failure to

timely respond to multiple letters from Bar Counsel requesting information); Attorney

Grievance v. Fox, 417 Md. 504, 538, 11 A.3d 762, 782 (2010) (failure to timely respond

to Bar Counsel).

       Rand violated Rule 8.4(d) when he asserted an invalid retaining lien and failed to

keep records in accordance with Maryland Rule 16-606.1. He also certainly violated Rule

8.4(d), because he misrepresented to Bar Counsel both his having “won” Ms. Klein’s

case and his having been awarded attorneys’ fees.

                                          V. Sanction

       Rand offered no mitigation during the disciplinary hearing on January 21 and 22,

2015, and Judge Bair found none. The Commission recommends that we indefinitely

suspend Rand from the practice of law. Rand recommends that we dismiss the case,

which we will not do.

       We have previously considered various aggravating factors found in Standard 9.22

of the American Bar Association Standards for Imposing Lawyer Sanctions when

imposing discipline; the factors are:

       (a) prior disciplinary offenses;
                                           56
       (b) dishonest or selfish motive;
       (c) a pattern of misconduct;
       (d) multiple offenses;
       (e) bad faith obstruction of the disciplinary proceeding by intentionally
       failing to comply with rules or orders of the disciplinary agency;
       (f) submission of false evidence, false statements, or other deceptive
       practices during the disciplinary process;
       (g) refusal to acknowledge wrongful nature of conduct;
       (h) vulnerability of victim;
       (i) substantial experience in the practice of law;
       (j) indifference to making restitution;
       (k) illegal conduct, including that involving the use of controlled
       substances.

Standard 9.22 of the American Bar Association Standards for Imposing Lawyer

Sanctions (1992); see Hodes, 441 Md. at 206, 105 A.3d at 574–75 (2014). Judge Bair

found several of these factors relevant to the present case, those being: (a) prior

disciplinary offenses, (d) multiple offenses, (f) submission of false evidence, false

statements, or other deceptive practices during the disciplinary process, (g) refusal to

acknowledge wrongful nature of conduct and (i) substantial experience in the practice of

law.

       Rand excepts to Judge Bair’s finding that he had prior disciplinary offenses,

submitted false statements and refused to acknowledge the wrongful nature of his

conduct, which we address in turn. Factor (a) concerns prior disciplinary offenses. Rand

excepts to Judge Bair’s finding that “Respondent received a reprimand from Bar Counsel

in May 2012 relating to his personal bankruptcy filings ‘in which he included unverified

and inaccurate information, some of which were offered under the penalty of perjury.’”

We conclude that Judge Bair’s finding that factor (a) is implicated was supported by clear

and convincing evidence.
                                           57
      Factor (d), “multiple offenses”, is implicated in the present case, where Rand

violated Rules 1.4, 1.5(a), 1.15(a), 1.16(d), 8.1(a) and (b), 8.4(a), (c) and (d) and 16-

606.1. See Hodes, 441 Md. at 207-08, 105 A.3d at 575 (violations of Rules 1.7, 1.15(d),

8.1(a), 8.4(a), (c) and (d) implicated factor (d)); Attorney Grievance v. Bleecker, 414 Md.

147, 177-78, 994 A.2d 928, 946 (2010) (the violation of multiple disciplinary rules

implicated aggravating factor (d)). Rand committed these multiple offenses when he:

failed to comply with his own fee agreement by not providing invoices to Ms. Klein

when he requested replenishment of the retainer; failed to inform Ms. Klein that he did

not file the addendum, but rather unilaterally decided to incorporate it in another

document; failed to adequately maintain client records; and misrepresented to Bar

Counsel that he “won” Ms. Klein’s EEOC case and was awarded attorneys’ fees.

      Rand excepts to factor (f) “false statements”, asserting once again that he did not

make misrepresentations to Bar Counsel. We have overruled this exception because Rand

did misrepresent to Bar Counsel his having “won” Ms. Klein’s case and also having been

awarded attorneys’ fees. Rand’s having provided false statements to Bar Counsel

implicates factor (f). Hodes, 441 Md. at 208, 105 A.3d at 575; Attorney Grievance v.

Dominguez, 427 Md. 308, 327, 47 A.3d 975, 985 (2012).

      Finally, Rand excepts to the application of factor (g), “refusal to acknowledge

wrongful nature of conduct”. See Attorney Grievance v. Mixter, 441 Md. 416, 530, 109

A.3d 1, 70 (2015) (“Out of Mixter's one-hundred and six pages of exceptions, he only

asserts, in one sentence, that he is ‘sincerely remorseful’, without elaboration.”); Hodes,

441 Md. at 208, 105 A.3d at 576 (refusing to acknowledge any wrongdoing). Rand,
                                       58
however, has thus far refused to acknowledge any wrongdoing, instead arguing that he

simply made “clerical errors”, was not required to provide Ms. Klein with any invoices

and attempted only to “set conditions” on Bar Counsel’s inquiries for documentation

rather than refused to comply. We overrule this exception.

       In the present case, we shall impose a sanction of indefinite suspension. We do so

in reliance on our previous cases in which similar rules violations were presented and

upon the aggravators found. Attorney Grievance v. Green, 441 Md. 80, 102, 105 A.3d

500, 513-14 (2014); Attorney Grievance v. Harrington, 367 Md. 36, 51, 785 A.2d 1260,

1268-69 (2001).

       In Green, 441 Md. 80, 105 A.3d 500 (2014), Green, after receiving an initial

$3,500 retainer deposit, failed to send his client any invoices detailing his services,

despite being required to do so under his retainer agreement. Although the client made

numerous requests for invoices from Green, he provided her no invoice until a “pre-bill

worksheet” was sent on August 11, 2011, indicating a total fee of $11,345.98. When the

client sent a letter to Green on August 19, 2011, disputing the fee and noting Green’s

failure to provide any invoice, Green initially declined to respond. On May 29, 2012,

Green did respond; however, he simply disagreed with the client’s concerns, provided no

support for his fee and demanded payment of the outstanding fee balance. After the client

filed a complaint on June 4, 2012 with the Attorney Grievance Commission, Bar Counsel

sent Green several letters requesting his response to the complaint.

       We concluded that Green violated Rules 1.4(a)(2) and (a)(3), 1.5(a), 1.15(a) and

(d), 8.1(b) and 8.4(a) and (d) and held that an indefinite suspension was appropriate,
                                          59
“because there [was] nothing in the record plumbing the reasons for Green’s misconduct

or the likelihood that recidivism is not a concern, due to the multiple refusals to cooperate

with Bar Counsel[.]” 441 Md. at 102, 105 A.3d at 513-14.

       In Harrington, 367 Md. at 47-8, 785 A.2d at 1266-67, the attorney failed on

several occasions to respond to client requests for information, terminated his

representation without taking the required steps to protect the interests of the client and

disregarded numerous requests for information from Bar Counsel. We held that, because

he had violated Rules 1.3, 1.4(a) and (b), 1.16(d), 8.1(b) and 8.4(c) and (d), an indefinite

suspension was warranted. Id. at 51, 785 A.2d at 1268-69.

       Respondent, Charles Stephen Rand, violated Rules 1.4, 1.5(a), 1.15(a), 1.16(d),

8.1(a) and (b), 8.4(a), (c) and (d) and Maryland Rule 16-606.1 and aggravating factors

apply. We determine that the appropriate sanction in the present case is an indefinite

suspension.

                                                  IT IS SO ORDERED; RESPONDENT
                                                  SHALL PAY ALL COSTS AS
                                                  TAXED BY THE CLERK OF THIS
                                                  COURT, INCLUDING COSTS OF
                                                  ALL TRANSCRIPTS, PURSUANT
                                                  TO MARYLAND RULE 16-761,
                                                  FOR WHICH SUM JUDGMENT
                                                  IS ENTERED IN FAVOR OF
                                                  THE ATTORNEY GRIEVANCE
                                                  COMMISSION AGAINST CHARLES
                                                  STEPHEN RAND.




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Circuit Court for Montgomery County
Case No.: 30325-M
Argued: September 29, 2015
                                         IN THE COURT OF APPEALS

                                                OF MARYLAND



                                             Misc. Docket AG No. 40

                                              September Term, 2014


                                          ATTORNEY GRIEVANCE
                                        COMMISSION OF MARYLAND

                                                        v.

                                          CHARLES STEPHEN RAND


                                               Battaglia
                                               Greene
                                               Adkins
                                               McDonald
                                               Watts
                                               Harrell, Glenn T., Jr. (Retired,
                                                Specially Assigned)
                                               Cathell, Dale R. (Retired,
                                                 Specially Assigned),

                                                      JJ.



                                      Dissenting Opinion by Adkins, J., which
                                                McDonald, J., joins.



                                            Filed: December 22, 2015
         Most respectfully, I dissent from the Majority opinion for the reasons set forth

below.

                                     I. Billing Practices

         The Majority uses overly broad strokes in addressing a lawyer’s ethical obligations

regarding the timing of bills. We should apply a more nuanced, contextual approach to

this aspect of private law practice. The Majority says:

                       Judge Bair found that on two occasions Rand requested,
               and received, $1,000 to replenish the retainer, but did not
               provide Ms. Klein with a statement for services, as necessitated
               by his retainer agreement. In addition, Judge Bair found that
               Ms. Klein requested, several times, that Rand send her an
               invoice.     We recently stated in Attorney Grievance
               Commission v. Green, 441 Md. 80, 91–92, 105 A.3d 500, 507–
               08 (2014), that a failure to provide invoices, as agreed upon in
               the attorney’s fee agreement, violated Rules 1.4(a) and 1.5(a).
               In the present case, Rand’s failure to provide an invoice both
               when requested by Ms. Klein and when he requested
               replenishment of the retainer, in derogation of the terms of
               his fee agreement, violated Rules 1.4(a) and 1.5(a).

Maj. Slip Op. at 41–42 (emphasis added). I agree that Respondent violated Maryland Rules

of Professional Conduct (“Rules”) 1.4(a) and 1.5(a) when he delayed for a year sending his

client a bill, especially since she requested one multiple times. But I am concerned about

implications of the Majority’s broad-stroke language about the obligation to bill. Lawyers

have an obligation to send reasonable bills. See Rule 1.5(a) (“A lawyer shall not make an

agreement for, charge, or collect an unreasonable fee . . . .”). When working on an hourly

basis, this means a lawyer must take the time to assess whether the hours expended were

reasonable before sending a bill. Thus, generating the bill is not simply pressing a button
on a computer or cell phone. Time records are easily obtainable, but the decision as to how

much is reasonable to bill can require careful study of those records.

       There are times when the press of substantive work will prevent a lawyer from

taking the time to generate a bill. For a lawyer who does trial work, this is especially

difficult—trying a case (including preparation) is so intense, all-consuming, and time-

sensitive that it demands a lawyer’s full attention. In finding a violation of Rules 1.4(a)

and 1.5(a), in part for failing to provide an invoice “when requested,” Maj. Slip Op. at 41–

42, the Majority sends the following signal: whenever requested by a client, lawyers must

drop the substance and pressing work they are doing and immediately assess how much of

the hours billed to a file should actually be included on an invoice. Indeed, the Majority’s

opinion can be construed to mean that a lawyer must do this even if the client is

unreasonable in the number and timing of her requests.

       This is a misplaced priority and unfair to our profession. Society is fortunate that

there are conscientious lawyers who care deeply about pursuing the best interests of their

clients. If we tell those lawyers that they can be branded as unethical because they do not

“promptly” send bills to their clients, or ask for more money to go into their “evergreen”

accounts, we signal that lawyers should focus on money rather than pursuing their clients’

goals. Not all lawyers send monthly bills, and this can be perfectly ethical.

       It is entirely too easy for us who do not practice to sit here and pronounce that

lawyers just must do it all—and do it on time—or they will be disciplined. Perhaps doing

so is, realistically, much harder than we think it is. All in all, we should act with restraint

when imposing discipline for a failure to send a bill promptly on demand or even a monthly


                                              2
bill. Each case should be evaluated based on the reasonable expectations of the lawyer and

client, considering the fee agreement, and other circumstances of the representation.

                                        II. Sanction

       The Majority has imposed our second-most severe sanction in a case arising out of

one matter, in which Respondent was neither dishonest with his client (or the Court), nor

incompetent.    He did not abandon his client.         Indeed, he accomplished something

meaningful—securing a favorable result in an EEOC proceeding. He did not mishandle

funds in his trust account.

       The hearing judge found that Respondent “did communicate frequently [with his

client] during the course of the representation,” but failed to communicate his decision not

to file an addendum to the complaint (relating to events happening after the filing of the

complaint) that he and his client had worked on together. See Maj. Slip Op. at 21–22

(setting forth the judge’s conclusions of law regarding Rule 1.4). Respondent, however,

included the new material in a later responsive filing. Bar Counsel made no showing that

this prejudiced the client’s case with the EEOC. I cannot see this as a significant failure

when the information the client sought to convey in the Addendum was fully set forth in

the responsive pleading. What’s more, Respondent’s action did not cause any evident harm

to the client—indeed, she prevailed with the EEOC.

       As I indicated, Respondent violated Rule 1.4 when, despite his client’s requests, he

refrained from sending a bill for an entire year. There was no finding, however, that his

fees were excessive. Respondent was partially but not fully cooperative with Bar Counsel,

a violation of Rule 8.1(b), but we should not ignore that, in two earlier disciplinary cases,


                                             3
Bar Counsel’s charges against Respondent were ultimately dismissed. This may explain

Respondent’s aggressiveness in defending himself against these charges—improperly

telling Bar Counsel that the favorable EEOC decision included an award of attorney’s fees.

Moreover, when his client fired him, his assertion that he had the right to retain his files

pertaining to the EEOC claim was facially correct under Md. Code (1989, 2010 Repl. Vol.),

§ 10-501 of the Business Occupations and Professions Article, and he did not have the

benefit of the Majority’s after-the-fact determination that he forfeited that right.

       The numerical sum of violations does not always reflect the seriousness of the

misconduct. These violations, all arising from a single representation in which the first

stage of his client’s discrimination claim was accomplished, do not add up to an indefinite

suspension in my book. A 60-day flat suspension would be more appropriate.

       Judge McDonald has authorized me to state that he joins in the views expressed in

this dissenting opinion.




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