Attorney Grievance Comm'n of Md. v. Fineblum

473 Md. 272

250 A.3d 148

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND

v.Charles Allan FINEBLUM

Misc. Docket AG No. 3, Sept. Term, 2020

Court of Appeals of Maryland.

April 26, 2021

Argued by Raymond A. Hein, Deputy Bar Counsel (Lydia E. Lawless, Bar Counsel Atty. Grievance Commission of Maryland), for Petitioner.

Argued by Irwin R. Kramer of Kramer & Connolly (Reisterstown, MD), for Respondent.

Argued before: Barbera, C.J., McDonald, Watts, Hotten, Getty, Booth, Biran, JJ.

Barbera, C.J.

On March 18, 2020, Petitioner, the Attorney Grievance Commission, acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action against Respondent, Charles Allan Fineblum. The Petition concerned Respondent's alleged failure to oversee the work of an independent paralegal firm, the improper sharing of legal fees with that firm, his lack of involvement in certain personal injury clients’ cases, and the mishandling of his attorney trust account. Bar Counsel alleged that Respondent's conduct constituted violations of Maryland Attorneys’ Rules of Professional Conduct ¹ ("MARPC") 1.1 (Competence), 1.4(a) and (b) (Communication), 1.15(a) and (b) (Safekeeping Property), 5.3(a), (b), and (c) (Responsibilities Regarding Non-Attorney Assistants), 5.4(a) (Professional Independence of an Attorney), 5.5(a) (Unauthorized Practice of Law), and 8.4(a), (c), and (d) (Misconduct), in addition to Maryland Rules 19-407(a)(3), (a)(4), and (b) (Attorney Trust Account Record-Keeping) and 19-408 (Commingling Funds). Bar Counsel also asserted that Respondent violated the prior versions of those rules.²

On March 20, 2020, this Court designated the Honorable John J. Nagle, III of the Circuit Court for Baltimore County to serve as the hearing judge. On May 21, 2020, Bar Counsel served Respondent via authorized counsel with the following: a Writ of Summons issued on March 23, 2020 by the Circuit Court for Baltimore County; the Order of the Court of Appeals; and the Petition for Disciplinary or Remedial Action. On June 22, 2020, Respondent filed an Answer to Petition for Disciplinary or Remedial Action.

The circuit court held the hearing remotely on September 9, 2020 using Zoom for Government. After the parties made their opening statements, they submitted a Joint Statement of Stipulated Facts. Bar Counsel did not call any witnesses and rested Petitioner's case-in-chief after submitting twenty-five of its own exhibits, including a transcript of Respondent's statement under oath, given on May 17, 2019. The hearing judge then heard from the following character witnesses who appeared on Respondent's behalf: the Honorable Sally C. Chester of the District Court of Maryland sitting in Baltimore County, Lee Jacobson, Esq., and C. Kelly Gordon, one of Respondent's former clients. The witnesses testified to Respondent's integrity, honesty, and dedication to the practice of law. Respondent also testified. He stated that although he never knowingly violated any ethical rules, he accepted responsibility for his shortcomings and expressed regret and contrition for his actions.

After the hearing, Petitioner withdrew the charge that Respondent's conduct violated Rule 1.4(a), as well as the charges that Respondent's conduct prior to July 1, 2016 violated the predecessors to current Maryland Rules 19-301.15(a) and (b), 19-407(a)(3), (a)(4), and (b), and 19-408. On October 23, 2020, Judge Nagle issued his Statement of Findings of Fact and Conclusions of Law. On November 12, 2020, Petitioner filed its Recommendation for Sanction, recommending that Respondent be indefinitely suspended. That same day Respondent filed his Exceptions and Recommendations, in which he advocated for a reprimand.

We adopt in large part the hearing judge's findings of fact and conclusions of law. Based on Respondent's rule violations found herein, as well as the aggravating and mitigating factors we have identified, we suspend Respondent for a period of six months and one day.

I.The Hearing Judge's Findings of Fact

We summarize here the hearing judge's findings of fact, which are supported by clear and convincing evidence.

Background

Respondent was admitted to the Maryland Bar on January 14, 1972. After clerking for the Honorable Marshall Levin on the Supreme Bench of Baltimore City, Respondent served in the Office of the Public Defender before entering private practice full time. During the relevant period, from 2008 through 2018, and continuing through today, Respondent has practiced as a sole practitioner in Baltimore County, focusing primarily on "auto negligence, domestic work, DUI, [and] DWI" cases. Since his admission, Respondent has had no history of attorney discipline.

Respondent's Relationship with RT & Associates

In June of 2008, William Ronald Tilghman formed a close corporation known as RT & Associates, Inc. ("RT & Associates") with the express purpose of performing paralegal services. Tilghman ran RT & Associates out of his home in Cockeysville, Maryland. During the relevant time frame of 2008 through 2018, neither Tilghman nor the other employees of RT & Associates were licensed to practice law in any jurisdiction. Furthermore, the hearing judge found that there was "no evidence that the Respondent ever affirmatively held Tilghman or anyone at RT & Associates out as attorneys or affirmatively represented to anyone that they were licensed to practice law in Maryland or elsewhere."

The hearing judge found that "[b]eginning at or about the time RT & Associates was formed in 2008 and continuing through 2018, Respondent utilized RT & Associates as an independent contractor to provide services in the processing and resolution of personal injury cases." Respondent acknowledged during Bar Counsel's investigation that he delegated significant responsibility to RT & Associates regarding client communications and pre-litigation case management. Respondent did not, however, have a formal written agreement with RT & Associates.

Respondent's "understanding of the agreement was that [RT & Associates] would work up cases and [Respondent's] name would be listed as the attorney on the case." In correspondence sent to Bar Counsel during the investigation, Respondent described the general duties and responsibilities of RT & Associates as follows:

[RT & Associates] performed such paralegal functions as client intake, preparing letters of representation for my signature, ordering and compiling police reports and medical records, scheduling clients for medical treatment, processing PIP [i.e. personal injury protection] claims, and working with responsible insurance carriers to resolve property damage claims, rental cars, repairs, etc. He also helped to prepare settlement demands and assisted in the resolution of bodily injury claims. By outsourcing these tasks, I was able to obtain support services and resources similar to those of a much larger firm. This has allowed me to focus more of my time on the preparation of cases for trial and similarly substantive tasks.

* * *

Although he was careful to identify himself as my legal assistant, Mr. Tilghman had extensive client communication to obtain information regarding the facts of the underlying accident, the completion of PIP applications, coordinating medical treatment, and handling property damage, repairs and rental car needs. I found his assistance to be invaluable in assuring prompt service to the clients in the wake of an automobile accident.

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

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

Respondent's Payments to RT & Associates

Respondent did not have a formal fee arrangement with RT & Associates. He also did not receive periodic billing invoices or statements of services rendered. Rather, his practice was to compensate RT & Associates out of his trust account with the proceeds of his clients’ personal injury claims, "taking into account the extent of the support which [Tilghman] and his staff provided and the nature of the case itself." He admitted that prior to the investigation, in calculating what he believed to be the appropriate compensation to RT & Associates, he would also take into account the outcome of the case. After consultation with his counsel in this proceeding, Respondent claims that he has abandoned this practice, and has not paid RT & Associates directly out of his trust account since the summer of 2018.

During the course of the investigation, Respondent produced to Bar Counsel a schedule of the personal injury client matters in which his clients recovered on their claims from 2014 through 2018.³ For each matter, the table listed the settlement amount, the attorney's fee, and the support expense paid to RT & Associates, which was deducted from the total attorney's fee rather than charged to the client directly. For almost every client matter listed the support expense was greater than the amount of the attorney's fee retained by Respondent. During his statement under oath, Respondent explained that this was because "the staff [at RT &...