Findings of Facts

Ms. Snowden retained Mr. Rand to represent her in a divorce action against her husband, Martin Allen Snowden ("Mr. Snowden"). Both parties sought alimony, spousal support, and child support. Mr. Rand sought production of Mr. Snowden's medical health treatment records from various providers, including the Priory Hospital in London, England. Mr. Snowden's attorney opposed the request and the Circuit Court ultimately ordered that "Counsel shall draft a Confidentiality Agreement to limit dissemination of records only to Counsel and experts scheduled to testify on issues of alimony and need for support."

The Confidentiality Agreement ("Agreement") detailed Mr. Rand's obligations with respect to Mr. Snowden's mental health records at the conclusion of the divorce litigation. One of those obligations was that he was to maintain only one copy of the records at the conclusion of litigation and return to Mr. Snowden's counsel all other copies in his possession or in any person's possession to whom he gave the documents. The Agreement was signed by all parties, and Mr. Rand received a copy of Mr. Snowden's records from Priory Hospital.

On December 19, 2006, the Circuit Court granted a Judgment of Absolute Divorce to Mr. and Mrs. Snowden. Thereafter, Mr. Rand believed unresolved issues remained because Mr. Snowden had not allowed Ms. Snowden to purchase his interest in the marital home as provided for in the Judgment of Absolute Divorce. A series of motions filed by each party and unanswered letters from Mr. Snowden's counsel to Mr. Rand requesting return of the medical records ensued. Finally, after months of Mr. Snowden's attorney requesting the return of the medical records, Mr. Rand responded on November 13, 2007 by returning the records and stating that he did not believe that the matter had reached finality. Specifically, Mr. Rand believed that child support remained an open issue.

Judge McCormick found, by clear and convincing evidence, that Mr. and Mrs. Snowden resolved all outstanding issues in their divorce action on December 19, 2006 when the Circuit Court entered the Judgment of Absolute Divorce. She further found that Mr. Snowden's medical records were only made available for review in connection with issues of alimony and spousal support and not for use in connection with any outstanding child support dispute. Finally, Judge McCormick found that there was clear and convincing evidence that Mr. Rand's primary motive for retaining the medical records was to have the records available for review and use as evidence in connection with his separate representation of Ms. Snowden in a related case. This, she found, violated the terms of the Agreement.

Conclusions of Law

Despite her findings of fact, Judge McCormick concluded that Mr. Rand did not violate MRPC 4.4 (a) by attempting to "use a method of obtaining evidence that the lawyer knows violates the legal rights of another person." She did, however, find that Mr. Rand engaged in conduct prejudicial to the administration of justice in violation of MRPC 8.4 (d) by retaining the medical records beyond the authorized time stated in the Agreement and by failing to respond to repeated requests from Mr. Snowden's attorney for the return of Mr. Snowden's records.

Analysis by Court of Appeals

Based upon a de novo review, the Court of Appeals concluded that Mr. Rand did not violate MRPC 8.4 (d). Although the Court stated that it did not condone Mr. Rand's conduct, it was not prepared to declare, on the record, that this incident was sanctionable conduct under MRPC 8.4 (d).

The Court concluded that Mr. Rand's conduct did not rise to the level of the misconduct found in other cases where violations of MRPC 8.4 (d) were found. There was no evidence showing that Mr. Rand's delay in responding to opposing counsel's letters on returning the medical records late resulted in anything approaching prejudice to the administration of justice. A delay alone will unlikely be sufficient to show prejudice, absent any actual and substantial harm flowing from the delay. Although Mr. Rand's conduct was discourteous, misguided, contrary to the Agreement, and in the course of representing his client, it was not sanctionable behavior under MRPC 8.4 (d) because it did not reach the degree where it became prejudicial to the administration of justice. His actions did not delay proceedings, involve deceit, result in any prejudice to Mr. Snowden, or apparently result in substantially increased fees to the litigants involved. The proper corrective motion, which did happen in the case, was for Mr. Snowden's counsel to file a motion and to let the Court decide whether his retention of the records was proper.