420 A.2d 940
ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. LEONARD JULES KERPELMAN
[Misc. Docket (Subtitle BV) No. 1, September Term, 1979.]Court of Appeals of Maryland.
Decided September 5, 1980. Certiorari denied, Supreme Court of the United States, March 2, 1981.
ATTORNEYS — Disciplinary Proceedings — Not Required To Be Heard By Jury — No State Or Federal Constitutional Right To Jury Trial In Attorney Disciplinary Proceedings — Maryland Declaration Of Rights, Art. 5; Maryland Rule BV10 d. pp. 355-356
APPEAL — Issue Which Is Not Argued In Brief Deemed Waived — Appellate Court Will Not Scan Entire Record To Determine If There Are Grounds To Sustain Objection — Maryland Rule 831 c. Where attorney claimed, “Each and every Motion Raising Preliminary Objection made by [him] below should have been granted,” but gave no reasons or argument in support of this contention, the Cour held that the issue was waived in Court’s consideration of disciplinary proceedings. Maryland Rule 831 c. The same holding was applied to attorney’s bald exceptions, on review, “to rulings made by [the judge] below on [appellant’s] objections to the introduction of evidence” and to “the various rulings on motions which were made against him in the hearing below.” pp. 357-358, 376
ATTORNEYS — Disciplinary Proceedings — Trial Judge Sits As Court’s Hearing Examiner — Judge Did Not Err In Refusing To Grant Attorney’s Motions For Mistrial In Instant Proceeding. pp. 358-359
ATTORNEYS — Disciplinary Proceedings — Admissibility Of Evidence — Reception Of Evidence Is Entrusted To Sound Discretion Of Hearing Judge — No Error Found In Lower Court’s Refusal To Permit Testimony Concerning Attorney’s Practice Concerning Fees Or In Admitting Collateral Testimony Relevant To Attorney’s Credibility. pp. 359, 361-363
ATTORNEYS — Disciplinary Proceedings — Proof Of Attorney’s Misconduct — “Clear And Convincing Evidence” Test — Testimony Of Complaining Witnesses Is Sufficient Basis For Finding Of Attorney’s Misconduct — Objections Go To Weight, Not Admissibility Of Such Testimony. pp. 360-361, 363-365
ATTORNEYS — Disciplinary Proceedings — Opinion Of Hearing Judge —
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Not Required To Discuss Every Piece Of Evidence Presented — No Merit In Attorney’s Complaint That Judge Failed To Consider Or Discuss Certain Evidence. p. 361
ATTORNEYS — Disciplinary Proceedings — No Merit Found In Attorney’s Objections To Disciplinary Charges Where Such Charges Were Dismissed Or Where Hearing Judge Found Such Charges Unproved. pp. 363-367
ATTORNEYS — Disciplinary Proceedings — Frivolous Allegations Of Error And Bias By Hearing Judge Dealt With Summarily. pp. 364, 376
ATTORNEYS — Disciplinary Proceedings — No Errors Of Law In Findings Of Hearing Judge Concerning Fee Dispute Or In Correction By Hearing Judge Of Minor Errors In Official Transcript. pp. 368-373
ATTORNEYS — Disciplinary Proceedings — Due Process Of Law — Procedure Of Testimonial Hearing Before Judge Of Trial Court Does Not Violate Attorney’s Right To Due Process — Nor Does Length Of Proceedings Or Size Of Transcript To Be Reviewed By Court Of Appeals Deny Attorney’s Due Process Rights. pp. 373-374
ATTORNEYS — Disciplinary Proceedings — Court Of Appeals’ Rule Making Power Is Constitutional — Court Has Power To Superintend Bar — No Merit To Contention That Disciplinary Rules Are Usurpation Of Legislative Authority. pp. 374-375
ATTORNEYS — Disciplinary Proceedings — Violation Of Disciplinary Rule — Conduct Involving Misrepresentation — Conduct Prejudicial To Administration Of Justice — Conduct Adversely Reflecting Upon Attorney’s Fitness To Practice Law — Sufficiency Of Evidence. Where record contained clear and convincing evidence that attorney misrepresented to client that there remained work to be done on his case, and that attorney suggested to his client that he physically remove his child from the custody of the child’s mother, knowing such action to be in violation of a decree of the Circuit Court for Anne Arundel County, the Court held that attorney was guilty, by clear and convincing evidence, of violation of DR 1-102(A)(1) (relative to violating a disciplinary rule); DR 1-102(A)(4) (relative to engaging in conduct involving dishonesty, etc.); DR 1-102 (A)(5) (relative to engaging in conduct prejudicial to the administration of justice); and DR 1-102(A)(6) (relative to conduct adversely reflecting upon an individual’s fitness to practice law). p. 375
ATTORNEYS — Disciplinary Proceedings — Disciplinary Rules Of Code Of Professional Responsibility Apply To Misconduct Of Attorney Occurring After October 13, 1970 — No Merit To Contention That Code Of Professional
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Responsibility Does Not Apply To Such Misconduct — Maryland Rule 1230. pp. 376-377
ATTORNEYS — Disciplinary Proceedings — Attorney Grievance Commission — Funding Through Clients’ Security Trust Fund — Challenge To Funding Of Attorney Grievance Commission Is Not Defense To Charges Of Unethical Conduct On Part Of Attorney — Maryland Rule BV2. pp. 377-378
ATTORNEYS — Disciplinary Proceedings — Attorney Shall Not Counsel Or Assist His Client In Conduct Which Attorney Knows Is Illegal — Attorney May Not Advise His Client To Violate Law Or Court Order Except In Instance Of A Test Case Upon Good Faith Belief That Statute Or Order May Be Invalid — Attorney’s Oath Does Not Permit Attorney Otherwise To Advise Client To Violate Court Order — Maryland Rules DR 7-102(A)(7); DR 7-106(A); Code (1957) Art. 10, § 10. Where there was clear and convincing evidence that attorney knowingly advised his client to violate a court decree by removing his child from the mother’s custody, and where there was not the slightest suggestion that the custody decree was constitutionally infirm or otherwise illegal, nor was a test case or constitutional right involved, the Court held
that the attorney’s conduct constituted a violation of DR 7-102(A)(7) (a lawyer shall not counsel conduct which he knows to be illegal); DR 7-106(A) (a lawyer shall not advise a client to disregard a ruling of a tribunal made in the course of a proceeding) as well as other disciplinary rules. DR 1-102(A)(4), DR 1-102(A)(5), DR 1-102(A)(6) and DR 1-102(A)(1). pp. 378-381
ATTORNEYS — Disciplinary Proceedings — Violation Of Disciplinary Rules — Sanctions — Purpose Of Disbarment Or Suspension Is To Protect Public — Court May Not Consider Possibility Of Instances Of Similar Misconduct By Attorney Where He Is Not Charged With Such Violations — Two Year Suspension Imposed In Case Of Three Separate Violations Of Disciplinary Rules. pp. 381-383
J.A.A.
Petition for disciplinary action by the Attorney Grievance Commission against Leonard Jules Kerpelman.
Ordered that Leonard Jules Kerpelman shall stand suspended from the practice of law in this State for the period of two years accounting from thirty days from the date of this opinion. He shall stand suspended beyond that date unless and until all costs incurred in connection with this proceeding are paid in full. Respondent shall pay all
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costs as taxed by the Clerk of this Court, including the costs of all transcripts, pursuant to Maryland Rule BV15 c for which sum judgment is entered in favor of the Attorney Grievance Commission against Leonard Jules Kerpelman.[*]
The cause was argued before MURPHY, C.J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.
J. Martin McDonough, Jr., Special Assistant Bar Counsel, for Attorney Grievance Commission.
Leonard J. Kerpelman, in proper person, respondent.
SMITH, J., delivered the opinion of the Court.
Pursuant to Maryland Rule BV 9, the Attorney Grievance Commission acting through Bar Counsel filed a petition with us praying that disciplinary action be taken against Leonard Jules Kerpelman, a member of the Bar of this State. The complaint grew out of his representation of three individuals. Those relative to one individual ultimately were dropped. The disciplinary rules involved in the two remaining complaints were DR 1-102(A)(1), (4), (5), and (6); 2-106(A); 2-110(A)(2) and (B)(4); 6-101(A)(2) and (3); 7-102(A)(7); and 7-106(A). Pursuant to Rule BV9 b we designated the Honorable Marshall A. Levin, an associate judge of the Eighth Judicial Circuit of Maryland, to hear the charges. After extensive and protracted hearings, he submitted a comprehensive report to us in which he found clear and convincing evidence of violation of DR 1-102(A)(1), (4), (5) and (6); DR 7-102(A)(7); and DR 7-106(A).[1] We agree.
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We shall set forth the charges against Kerpelman together with the gist of the trial judge’s findings on those charges. We shall then consider the exceptions of Bar Counsel and each of Kerpelman’s forty-four exceptions. Then we shall discuss the applicable law and the appropriate sanction to be imposed. In an effort to provide a clear understanding of this matter, we set forth in an appendix that portion of the trial judge’s opinion which concerns the facts adduced before him.
I The Malcomb matter
Bar Counsel alleged that in December 1975 John D. Malcomb sought the professional assistance of Kerpelman in regaining the custody of one of Malcomb’s two children (Malcomb’s other child then being in his custody); that Malcomb was advised that it would cost him $1,000 plus court costs for Kerpelman to represent him; that on or about December 17, 1975, Malcomb paid Kerpelman $500; that a second $500 was paid before the scheduled hearing on June 8, 1976; that between December 1975 and June 1976 Malcomb advised Kerpelman by letter of the names of witnesses he believed could materially contribute to the case and should be interviewed; that during this period he notified Kerpelman of the facts of the case; that during this same period Kerpelman granted Malcomb only one forty to forty-five minute interview during which time Kerpelman “indicated a lack of familiarity with the facts and issues of the action”; that Kerpelman recommended to Malcomb the hiring of a private social worker to do an investigation of Malcomb for use at the custody hearing at a cost of $350, but,
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“at the time of trial, after her qualifications were presented to the Court, her report and its conclusions were ruled inadmissible by the Court”; that prior to the date of trial Kerpelman interviewed only one of the witnesses concerning whom Malcomb had previously advised him; that by his interrogation of witnesses at trial Kerpelman “indicated a lack of familiarity with the facts and issues of the action”; that at the conclusion of the custody hearing on June 8, 1976, the chancellor reserved his ruling; that on or about June 23, 1976, Kerpelman “sent a bill to Malcomb for a `Further retainer’ in the amount of $650”; that upon receipt of that bill Malcomb paid Kerpelman $50; that when subsequent to the hearing Malcomb was unsuccessful in making contact with Kerpelman he “contacted his former wife and her attorney, during the week of July 20, 1976, and learned that the Court had reached a decision based upon the hearing of June 8, 1976, which decision Malcomb found acceptable to him, in that one child was awarded to Malcomb, and the other to Malcomb’s former wife, with the requirement that Malcomb pay $25 per week in support for the child awarded to his former wife”; that on or about July 27 Malcomb “encountered [Kerpelman] at a meeting of a group called Fathers United, at which time [Kerpelman] indicated to Malcomb that the Court had not yet reached a final determination on the custody issue, and that [Kerpelman] was still working on the matter on Malcomb’s behalf”; that on or about July 28, 1976, Malcomb ascertained from the chancellor that he had in fact rendered a decision on the custody issue on July 20, 1976; that Malcomb telephoned Kerpelman on about July 28, 1976, to tell him of the information he had acquired from the trial judge at which time Kerpelman “again told Malcomb that the matter had not been settled;” that on or about July 29, 1976, “Malcomb notified [Kerpelman] by letter that he was terminating their relationship, after which [Kerpelman] continued to correspond with Malcomb, and with the Court on Malcomb’s behalf”; that on or about August 26, 1976, Kerpelman “submitted another bill to Malcomb for an additional $1,250, reflecting an `Additional final fee based
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on successful result,’ resulting in a total additional claim of $1,850″; that on or about October 4, 1976, Kerpelman sued Malcomb claiming $1,850 “for services rendered by [Kerpelman]”; that on or about October 29, 1976, Kerpelman “submitted a third additional bill to Malcomb for an additional $1,000 for `Re-analyzation of file, further additional fee based on time expended,’ resulting in a total additional claim of $2,250”; that on or about February 11, 1977, Kerpelman amended his claim for damages in his suit against Malcomb “to $4,262, reflecting a total claim of $5,312, less the $1,050 previously paid by Malcomb”; and on or about March 21, 1977, Kerpelman “submitted a fourth additional bill for $4,262 as a `Corrected bill based on final analysis done in January, 1977.'”
It was claimed, based on these allegations, that Kerpelman had violated DR 1-102(A)(1), (4), (5), and (6); DR 2-106(A); DR 2-110(A)(2) and (B)(4); and DR 6-101(A)(2) and (3).[2] The charges concerning neglect and excessive fees ultimately were dropped.
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At the conclusion of the hearings the trial judge framed the following as the issues to be determined by him:
1. Did Respondent violate any Disciplinary Rules by making an agreement with Malcomb that his representation of Malcomb would cost $1,000.00 and yet intended, at the time of the agreement, to charge an additional fee based on certain factors, including a successful result?
2. Did he further violate any Disciplinary Rule by allegedly misrepresenting to Malcomb that his case was not yet resolved in the judge’s mind until the August 9, 1976 decree was signed and that he was working on the case, when in fact, the judge’s ruling was on July 20, 1976 (and the only matter remaining was the drafting and approval of the Order) and Respondent was not working on the case at all but rather trying to give the appearance of work in order to exact an improper fee from Malcomb?
3. Did Respondent violate any Disciplinary Rule by furthering a fraud on the court in not advising the court that the Malcomb decree was based on a fraudulent decree, i.e., a backdated separation agreement?
4. Did Respondent violate DR 1-102(A)(5) by his alleged conduct in paragraph 1, 2 and 3 above?
5. Did Respondent violate DR 1-102(A) (6) by maliciously escalating his fee to Malcomb and attempting to obtain improperly an improper fee from Malcomb in the absence of any fee agreement by Malcomb and in the absence of any basis therefor and by using the courts to obtain such improper fee?
6. Did Respondent violate said latter Disciplinary Rule by his alleged conduct in 2 above?
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7. Did Respondent violate DR 2-110(A)(2) by improperly withholding Malcomb’s papers and the decree after being discharged by Malcomb?
8. Did Respondent violate DR 6-101(A)(2) by lack of adequate preparation in that he conducted no discovery, interviewed no witnesses before trial, called witnesses who were of little or no probative value, failed to call witnesses who were of probative value and generally displayed no knowledge of the facts surrounding the Malcomb case?
In his consideration of the matter the trial judge lumped together the issues concerning escalation of the fee. He found “by clear and convincing evidence that [Kerpelman] represented to Malcomb that his total fee for his representation in the custody case would be One Thousand Dollars . . . and no more but that in violation of his agreement, he charged (or attempted to charge) Malcomb fees over the agreed upon amount; that [Kerpelman] made a wilful misrepresentation to Malcomb as to [Kerpelman’s] fee; that [Kerpelman] maliciously and improperly escalated fee charges to Malcomb without any basis, without any agreement, without any warning; and without the escalated charges bearing any relationship to the amount of work done.” On the basis of that finding he concluded that Kerpelman violated DR 1-102(A)(4) concerning engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; DR 1-102(A)(5) concerning engaging in conduct prejudicial to the administration of justice; DR 1-102(A)(6) concerning engaging in other conduct adversely reflecting on his fitness to practice law; and DR 1-102(A)(1) stating that a lawyer shall not violate a disciplinary rule.
On Issue 2 relative to misrepresentation as to whether or not a case had been “resolved in the judge’s mind” the trial judge “conclude[d] by clear and convincing evidence that [Kerpelman] deliberately misrepresented to Malcomb that there remained work to be done on this . . . case and that . . . [Kerpelman] was actually engaged in performing such work, whereas, after July 20, 1976, there remained no work to be done and [Kerpelman], in fact, performed no work and that
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this misrepresentation was made to justify an improper fee.” Upon this finding he concluded that there was a violation of DR 1-102(A)(4) and DR 1-102(A)(6).
The trial judge said he was “not convinced by clear and convincing evidence that [Kerpelman] furthered a fraud on the court” by “doing nothing to either advise Malcomb or the court of Malcomb’s knowing acquiescence in [his former wife’s] backdating of their separation agreement. . . .” He likewise found no clear and convincing evidence that Kerpelman violated DR 2-110(A)(2) relative to withdrawal from employment by withholding Malcomb’s papers and the decree after being discharged by Malcomb and by continuing to deal with the chancellor after such discharge.
The trial judge likewise found no violation of DR 6-101(A) (2) on the issue of adequate preparation, stating, “What Bar Counsel perceives as inadequacy may well be trial tactics.”
II The Draper matter
The petition for disciplinary action alleged that Marlene S. Draper was awarded a divorce a vinculo matrimonii from David W. Draper on or about January 7, 1975, in which she was awarded custody of their child; that in April 1976 Draper sought Kerpelman’s representation of him in an effort to have the decree modified by having custody awarded to him; that Kerpelman advised Draper “that the fee would be $960 plus court costs and that the fee should be paid prior to the date of any hearing on modification”; that Draper paid Kerpelman $500 on or about April 15, 1976; that on or about May 7, 1976, Kerpelman “submitted a bill to Draper in the amount of $10 for `Filing fee for Petition for Modification of Decree as to Child Custody'”; that on or about May 14, 1976, Kerpelman filed a petition on behalf of Draper in the Circuit Court for Anne Arundel County for modification of the custody decree; that “[d]uring the period April, 1976, to August 21, 1976, [Kerpelman] advised and counseled Draper to take his child from Marlene S. Draper, then living in Syracuse, New York, and further planned
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with Draper the methods by which he was to obtain the child, notwithstanding the award of custody [in the divorce decree]”; that “[a]cting at the direction of [Kerpelman], on or about August 21, 1976, Draper entered the apartment in which Marlene S. Draper was then living, in Syracuse, New York, and `. . . Took the child without the permission or consent of Marlene S. Draper . . .,’ returning with the child to Maryland”; that on or about September 7, 1976, Draper forwarded $460 to Kerpelman, being the remainder of the fee to which reference was previously made; that on or about September 30, 1976, the Circuit Court for Anne Arundel County ordered Draper to return the child to Marlene S. Draper “and to show cause why he should not be found in contempt of that court for his actions [in retrieving the child]”; that on or about March 23, 1977, a hearing was held on Draper’s petition for modification of the custody decree, which hearing resulted in an award of custody to Draper; that although Draper “on numerous occasions [requested] an interview in [Kerpelman’s] office prior to the hearing of March 23, 1977, [Kerpelman] refused to meet with Draper”; that on or about March 24, 1977, Kerpelman “submitted a bill to Draper for an `Additional final fee based on fully successful conclusion of case,’ in the amount of $850, which amount Draper refused to pay”; that as a result of Draper’s refusal to pay this sum of $850 “[Kerpelman] refused, upon Draper’s request, to provide Draper with a copy of the Decree of Modification resulting from the hearing of March 23, 1977”; and that Kerpelman withdrew from representation of Draper on or about June 21, 1977, without providing Draper with a copy of the decree of modification. (Emphasis in original.)
Bar Counsel claimed that as a result of his actions Kerpelman had violated DR 1-102(A)(1), (4), (5), and (6); DR 2-106 (A); DR 2-110(A)(2); DR 6-101(A)(2) and (3); DR 7-102(A)(7); and DR 7-106(A).[3] The charges relative to excessive fees and neglect ultimately were dropped.
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At the conclusion of the hearings, the trial judge framed the following as the issues to be determined by him:
1. Did Respondent agree that his representation of Draper would cost “about $1,000.00” at a time when Respondent intended to charge more based on certain factors including a successful result?
2. Did Respondent violate any Disciplinary Rules by advising Draper to retrieve (meaning illegally child snatch) the child from Syracuse, New York in flat violation of an unmodified court decree awarding custody of the child to Draper’s former wife (mother of the child)?
3. Did Respondent violate DR 1-102(A)(5) by his alleged conduct in 1 above?
4. Did Respondent violate said latter Disciplinary Rule by his alleged conduct in 2 above.
5. Did Respondent violate DR 1-102(A)(6) by his alleged conduct in 1 above?
6. Did Respondent violate said latter Disciplinary Rule by his alleged conduct in 2 above?
7. Did Respondent violate DR 2-110(A)(2) by allegedly refusing to deliver to Draper, the decree of modification (or copy) of March 23, 1977 (awarding custody to Draper — the result sought by Draper and objective in his hiring Respondent) after the modification hearing and after Draper discharged Respondent? Did he further violate said Disciplinary Rule by not avoiding foreseeable prejudice to Draper before he withdrew his representation of Draper and by doing nothing for Draper in the face of danger of additional litigation?
8. Did Respondent not violate DR 6-101(A)(2) by lack of adequate preparation, in that he never conducted discovery, never interviewed any witnesses nor had in person interviews with Draper?
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9. Did Respondent not violate DR 7-102(A)(7) and 7-106(A) by his alleged conduct in 2 above?
The most serious charge against Kerpelman is that he advised a client to take steps to recover his child from the child’s mother in New York State when, as Kerpelman knew, the mother had custody pursuant to a decree of one of the courts of this State. Here, as will fully appear by reference to the appendix to this opinion setting forth the findings verbatim, the trial judge found as a fact that Kerpelman “did suggest to his client, in flat violation of the Decree, that he (Draper) physically take the child from the Syracuse residence where she was living with her mother; that it was [Kerpelman’s], and not Draper’s suggestion; [and] that [Kerpelman] told Draper to not make it look like a breaking and entering but just to get the child. . . .” He found under this issue “by clear and convincing evidence that [Kerpelman’s] conduct was in violation of Disciplinary Rules 1-102(A)(1), 1-102(A)(4), 1-102(A)(5) and 1-102(A)(6)” relative to conduct involving dishonesty, etc., conduct prejudicial to the administration of justice, engaging in other conduct adversely reflecting on his fitness to practice law, and violation of disciplinary rules.
On the issues concerning misrepresentation as to fee, the trial judge said, “Despite all of the highly suspicious circumstances, I cannot find by clear and convincing evidence that [Kerpelman] intended to improperly charge a fee to Draper in violation of their fee `agreement.'” (Emphasis his.) Likewise, on the issue relative to inadequate preparation the trial judge said he could not “find by clear and convincing evidence that [Kerpelman’s] representation was so inadequate as to conclude that he violated DR 6-101(A)(2).” (Emphasis his.) His concluding comment on this issue was, “In sum, while [Kerpelman’s] representation was spotty and somewhat deficient, this court cannot find b clear and convincing evidence that [Kerpelman] handled the Draper case without preparation adequate in the circumstances.” (Emphasis his.)
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III Bar Counsel’s exceptions
Bar Counsel has excepted to the failure of the trial judge to find inadequate preparation in both the Draper and Malcomb matters and his failure to find that Kerpelman misrepresented the matter of his fee in the Draper matter. The trial judge saw and heard the witnesses. We did not. Our consideration of the exception for that reason must be similar to that where an action has been tried by the lower court without a jury. In that circumstance Maryland Rule 886 provides that “the judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses.” In fact, in Bar Ass’n v. Marshall, 269 Md. 510, 516, 307 A.2d 677
(1973), Judge Digges observed for the Court that in a disciplinary case, referring to findings by a trial judge, “[T]he master’s findings of fact from the evidence are prima facie correct and they will not be disturbed unless determined to be clearly erroneous.” In Moran v. Moran, 219 Md. 399, 149 A.2d 399 (1959), we held that evidence should not have persuaded a trier of fact to a given conclusion warranting relief. Here we are requested to hold that evidence should have persuaded a trier of fact that certain violations existed. There is a substantial difference between the two propositions.
In Racine v. Wheeler, 245 Md. 139, 144, 225 A.2d 444 (1967), Judge McWilliams said for the Court, “Since the jury is free to believe only a portion of the evidence of each side the synthesis apparently accomplished by the jury is simply a manifestation of its obvious function.” This comment continues to have viability. We have said this is no less true when a judge is the trier of fact. Clemson v. Butler Aviation, 266 Md. 666, 672, 296 A.2d 419 (1972), and Davidson v. Katz, 254 Md. 69, 80, 255 A.2d 49
(1969). The burden of proof was on Bar Counsel. On this record we cannot say that the trial judge was clearly in error when, after considering all of the evidence, he was not convinced that Kerpelman misrepresented the fee to Draper or that Kerpelman failed to prepare properly the Draper and Malcomb cases for trial. As we observed in Eidelman v. Walker Dunlop,
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265 Md. 538, 545, 290 A.2d 780 (1972), and repeated in Phelps v. Goldberg, 270 Md. 694, 707, 313 A.2d 683 (1974), “For many years juries have been instructed at the request of defense counsel to the effect that if the evidence on a given proposition left their minds in a state of even balance or equipoise, then their verdict should be for the defendant because the plaintiff had not met his burden of proof. . . . A judge sitting as a trier of fact is not expected to go further in reaching a conclusion from the evidence before him than a jury.” Certainly, where the burden is to produce clear and convincing evidence (a greater burden than in the ordinary civil case), the principle is no less applicable.
IV Kerpelman’s exceptions 1 — Right of trial by jury
Kerpelman claims that “[h]e was denied the right to the interposition of a jury at any stage in the proceedings, either as trier of fact or as trier of fact and in law, and claims he is entitled to both.” As with virtually all of his exceptions, he does not cite any cases or other authority in support of his claim nor does he specify from whence comes the right.
We assume that the right claimed to have been abridged is the one guaranteed by Maryland Declaration of Rights Art. 5. This is reinforced by a purported election for jury trial filed in the trial court in which Kerpelman said, “That, said case being quasi-criminal in nature, the defendant further demands that all matters both of law and fact be submitted to the jury for its determination, as provided by the Constitution of the State of Maryland.” In Maryland St. Bar Ass’n v. Sugarman, 273 Md. 306, 318, 329 A.2d 1 (1974), cert. denied, 420 U.S. 974 (1975), we held that a disciplinary action against an attorney does not involve a criminal or quasi-criminal sanction within the purview of the Fifth Amendment to the Constitution of the United States.
Maryland Declaration of Rights Art. 5 states in pertinent part, “That the Inhabitants of Maryland are entitled to the Common Law of England, and the trial by Jury, according
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to the course of that Law. . . .” In Knee v. City Pass. Ry. Co., 87 Md. 623, 624, 40 A. 890 (1898), Judge Pearce referred to this provision and said for the Court, “Language of similar import, is found in the Constitution of each of the United States, and the authorities are therefore naturally uniform to the effect, that it is the historical trial by jury, as it existed when the Constitution of the State was first adopted, to which the inhabitants of each State are entitled. . . .” Maryland Rule BV10 d concerning hearing of disciplinary charges states, “The hearing of charges is governed by the same rules of law, evidence and procedure as are applicable to the trial of civil proceedings in equity.” Civil proceedings in equity are not heard by juries nor were they at the time of the adoption of the Constitution of 1776. At one time we did have a statutory procedure in Maryland for sending issues from a court of equity to a court of law for determination by a jury. This no longer prevails. The Maryland authority, E. Miller, Equity Procedure in Maryland § 232 (1897), states, “An issue of fact to be tried by a jury is not a matter of right, at any stage of the proceedings, independently of statute. . . .” Id. 290-91. Thus, it follows that lawyer disciplinary proceedings are not required by the Constitution of Maryland to be heard by juries.
Even were there no provision in our rules to the effect that the proceedings should be conducted as in equity, disciplinary proceedings against attorneys, in the absence of a rule or statute providing to the contrary, are not encompassed within the constitutional guarantees of trial by a jury, be that guarantee state or federal. Ex parte Wall, 107 U.S. 265, 288-89, 27 L.Ed. 552, 2 S.Ct. 569 (1883); Ex parte Burr, 4 F.Cas. 791, 796, 1 Wheeler, Crim. Cas. 503, 519-20, 2 Cranch C.C. 379, 390-91 (D.C. Cir. 1823), aff’d 22 U.S. (9 Wheat.) 529, 6 L.Ed. 152 (1824); Ex parte Thompson, 228 Ala. 113, 152 So. 229
(1933), and 7 Am.Jur.2d Attorneys at Law § 90 (1980) Thompson contains an excellent analysis of the matter and reviews decisions in numerous jurisdictions upon the subject. This contention is without merit.
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2 — Motions raising preliminary objection
Kerpelman says, “Each and every Motion Raising Preliminary Objection made by [him] below should have been granted.” He adds no more. This is not an acceptable method of procedure. See, e.g., Dean v. Redmiles, 280 Md. 137, 169-70, 374 A.2d 329
(1977), and State Roads Comm. v. Halle, 228 Md. 24, 178 A.2d 319 (1962). In the latter case Judge Prescott said for the Court:
Under its “Statement of Facts” in its brief, appellant alleges that, “both real estate witnesses [of the appellees] Jones and McCurdy, over objection, subtracted from their after value the sewer deficits computed by the witness Matz,” without reference to the record extract wherein the witnesses testified as alleged, or the objections were made. Still under the same heading, it then alleges, “appellant moved that * * * that part of the real estate witnesses’ testimony concerning sewer deficits be stricken, which motion was denied (E. 259-260).” The record sustains the fact that this motion was made and denied.
But neither under this heading nor the heading of “Argument” in its brief does it present any argument in support of its contention on this point, nor do the appellees deal specifically with the question. Under these circumstances, we conclude the point has been waived. Maryland Rule 831 c 4; cf. Fid. Dep. Co. v. Mattingly Lumber Co., 176 Md. 217, 220, 4 A.2d 447; Comptroller v. Aerial Products, 210 Md. 627, 644, 124 A.2d 805. Surely it is not incumbent upon this Court, merely because a point is mentioned as being objectionable at some point in a party’s brief, to scan the entire record and ascertain if there be any ground, or grounds, to sustain the objectionable feature suggested. [Id. 31-32.]
We have examined the motions raising preliminary objection, however, and find no error in their denial.
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3 — Rulings on evidence
Kerpelman “excepts to the myriad rulings made by [Judge] Levin below on [Kerpelman’s] objections to the introduction of evidence, and to each such ruling, and he makes each such ruling ground for exceptions to the acceptance of the findings which were made.” That which we have just quoted from Halle is applicable here. Surely, it is not incumbent upon us to comb a transcript covering hearings approximately four weeks in length to find “the myriad rulings . . . on . . . objections to the introduction of evidence” when the experienced attorney involved does not see fit to specify to which rulings on the evidence he takes exception nor to state the basis of his objections. In our examination of the transcript, however, we have discovered no errors.
4 — Rulings on motions
Kerpelman “excepts to the various rulings on motions which were made against him in the hearing below and he makes each such erroneous ruling the ground of an exception to the acceptance of the findings made.” Again, he has failed to be more specific. We have found no errors in our examination of the record.
5 — Motions for mistrial
Numerous motions for mistrial were made during the course of the hearings. On this issue Kerpelman says he excepts “particularly [to] the failure to grant each and every specific motion or request for mistrial which was made below; he makes each of the said failures, which number approximately thirty or more the basis of an exception and says that each of the motions or requests for mistrial was well made or well taken and that for the failure to grant any, the findings made below should be dismissed.”
It must be remembered that a trial judge in the position of Judge Levin in this case sits as our hearing examiner. Attorney Griev. Comm. v. Bailey, 285 Md. 631, 637,
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403 A.2d 1261 (1979), and Bar Ass’n v. Marshall, supra, 269 Md. at 515-16. We note that Kerpelman has failed to be specific even as to the number of motions for mistrial he made. Assuming, arguendo, that such a motion is proper in this type of proceeding, from our examination of the record we find no error on the part of Judge Levin. Rather, we believe Judge Levin is entitled to commendation for his patient, courteous handling of a difficult proceeding.
6 — 9, inclusive — Further rulings on evidence
Kerpelman has excepted to the trial judge’s “failure to permit testimony as to [Kerpelman’s] ordinary practice as concerns fees,” his “failure to permit witnesses called by [Kerpelman] to testify thereto referring to [the practice concerning fees],” his “failure to permit other witnesses called by [Kerpelman] to testify,” and “[t]he limitation on the number of character witnesses called by [Kerpelman].” Again, we find a lack of specificity. Although we permitted Kerpelman to file a revised brief subsequent to the argument in this matter, that rambling, forty-page document does not address this or many other points raised by the exceptions.
We have observed many times that the reception of evidence is to a large degree entrusted to the discretion of the trial court and its action will seldom constitute grounds for reversal. See, generally, e.g., State v. Conn, 286 Md. 406, 425, 408 A.2d 700
(1979); Impala Platinum v. Impala Sales, 283 Md. 296, 332, 389 A.2d 887 (1978); Radman v. Harold, 279 Md. 167, 173, 367 A.2d 472 (1977); Andrews v. Andrews, 242 Md. 143, 152, 218 A.2d 194
(1966); Smith v. State Roads Comm., 240 Md. 525, 214 A.2d 792
(1965); Sanner v. Guard, 236 Md. 271, 277, 203 A.2d 885 (1964) Turner v. State Roads Comm., 213 Md. 428, 434, 132 A.2d 455
(1957); Reid v. Humphreys, 210 Md. 178, 185, 122 A.2d 756
(1956); Barranco v. Kostens, 189 Md. 94, 97, 54 A.2d 326
(1947); Zeller v. Mayson, 168 Md. 663, 667, 668, 669, 179 A. 179 (1935); Ice Machinery Corp. v. Sachs, 167 Md. 113, 126, 173 A. 240 (1934); and Maryland Electric Ry. v. Beasley, 117 Md. 270, 277, 83 A. 157 (1912). We find no error in this case.
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10 — 16, inclusive — Alleged bias, prejudice, etc., of Judge Levin
These contentions are without merit.
17 and 18 — Weight of the evidence
In his seventeenth exception Kerpelman attacks the weight given to certain of the evidence, saying it “could not possibly have been `clear and convincing’. . . .” We perceive no error.
In his eighteenth exception he suggests, “As a matter of law an attorney cannot be found to have erred by `clear and convincing evidence’ when the only evidence in the case is the testimonial evidence, as here, of the complaining witnesses in the two separate cases.”
We recently had occasion in Berkey v. Delia, 287 Md. 302, 413 A.2d 170 (1980), to discuss clear and convincing evidence under the rule enunciated relative to libel and slander actions in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). We said:
The fact that this is a “one on one” situation in no way precludes a determination by clear and convincing evidence as to which is speaking truthfully. That this is so is readily understood when we point out that in a criminal case an individual may be convicted upon the testimony of one witness who says that he saw the accused do the act constituting the crime notwithstanding the fact that the accused may say that he was not even present at the scene of the crime. Proof beyond a reasonable doubt, required in criminal cases, is a higher standard than proof by clear and convincing evidence required in a defamation case such as this. [Id. at 330.]
We point out that in Caviness v. State, 244 Md. 575, 224 A.2d 417 (1966), Judge Marbury said for the Court:
We have held that the testimony of one eye witness, if believed, is sufficient to convict, Turner v. State,
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242 Md. 408, 219 A.2d 39; Hammond v. State, 241 Md. 733, 217 A.2d 569; and Wesbecker v. State, 240 Md. 41, 212 A.2d 737. The trial court in a nonjury case is entitled to believe the identifying witness rather than alibi witnesses who place appellant elsewhere. Campbell v. State, 231 Md. 21, 188 A.2d 282; Rule 886 a. [Id. at 579.]
This contention of Kerpelman is without merit.
19 and 20 — Failure of the judge “to consider or discuss” certain evidence
The opinion of the trial judge here covered eighty-five pages with more than eighteen additional pages of footnotes appended. The fact that certain evidence is not discussed in an opinion, even one as long as the one here before us, certainly does not indicate that there was a failure to consider any given evidence. It surely is not incumbent upon a judge in any case to discuss every piece of evidence presented. We perceive no error.
21 — Admission of testimony of Mr. Brecka
Kerpelman claims error in “[t]he admission of evidence of a collateral issue, that is the Brecka episode, and the admission of any of [Brecka’s] testimony. . . .”
Kerpelman testified as part of his case:
A. When you have performed a child snatch, as any number of my clients on my advice have done, this also coming into play in showing that these statements are not, I believe, really inconsistent.
First of all, the use of the word “child snatch” was perhaps an unfortunate choice of words. I have for a long time regularly had occasion to advise fathers in the throes of a marital dispute, that in the absence of a court order, they can have an equal right to possession of the child and to obtain possession of the child. And this is a very vexed subject which is directly discussed in the meetings
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and legal clinics of Fathers United for Equal Rights.
And in the course of these many discussions at these legal clinics, the term “child snatch” has apparently come to be used to describe getting your child under circumstances which certainly can be valid circumstances. I never advised, never to the best of my recollection, advised a client to do that if there is a court order. [Emphasis added.]
This exception is based upon the fact that Bar Counsel later produced William Brecka as a witness. He testified relative to conversations with Kerpelman prior to the incident with which we are here involved:
A. The second conversation I had with him on the telephone when he asked — when he told me that I have to have a check for $950.00 or $850.00 and I have to be willing to do anything that was necessary to get custody of the children and I asked him what he meant by that and he kept avoiding the answer “well, just whatever is necessary,” and he went on in that vein for a couple of more times and I decided well, I guess I am not going to get an answer here. It was at then the next time I met him was at a Father’s United Meeting. After the meeting, outside the meeting room I got him alone at the top of the stairway and I said, “Now, what exactly do you mean by anything necessary to get the children” and he said, “Look,” he said, “I will deny it if I am asked, but you have to get the children and keep the children and go as far away as possible and stay away as long as possible.” That was the end of that conversation.
In his opinion, which we have reproduced in the appendix, Judge Levin dealt at some length with the admissibility of this testimony. He concluded by stating:
The Brecka testimony was admitted solely for the
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purpose of credibility and has not been considered substantively. Finally, the evidence against Respondent is so overwhelming otherwise, that even if the Brecka testimony were inadmissible, it would make no difference at all.
We have heretofore pointed out the wide discretion with which a trial judge is vested in the matter of admission of evidence. Even if there were error here, which we certainly do not hold, the concluding statement by Judge Levin makes plain that such error would not be a basis for our rejecting his findings.
22 and 28 — Malcomb as a credible witness
In his twenty-second exception Kerpelman took issue with “[Judge] Levin’s `finding’ that Malcomb was both a `credible’ and `truthful’ witness, when Malcomb admitted on the stand under oath that he lies `when it is to his advantage’.”
In his twenty-eighth exception Kerpelman said:
It is explicitly stated in the Record that Malcomb, by admission, “Lies when it is to his advantage”; the testimony of such a witness cannot, as a matter of law, amount to “clear and convincing evidence” in disciplinary charges against an attorney.
It was for Judge Levin to weigh all of the evidence. He saw and heard this witness. We have no reason to believe that he failed to weigh this statement of Malcomb in his determination of credibility. We perceive no error.
23 and 24 — The Malcomb fee
Kerpelman states:
23. No charge was originally made as to any “excessive fee”, but this sort of charge, apparently out of deference to More Important members of the bar than the Respondent was carefully avoided, but in fact, that is all that the charge concerning
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Malcomb amounts to by any clear and convincing evidence.
24. The Inquiry Panel made a formal finding that “no excessive fees were charged” and therefore each and every finding in any way related to fees should be rejected, (a) as a general matter of Due Process, (b) as a general matter of evidence and weight of evidence, (c) as a matter which was not properly charged against the Respondent, (d) as a new charge which the Respondent was not informed of and would not have known of before the hearing.
Throughout this proceeding Kerpelman has attempted unsuccessfully to portray himself as a victim of some sort of conspiracy on the part of “rich” lawyers in large firms.
As Judge Levin pointed out, on June 15, 1979, prior to the trial of this case on its merits, Bar Counsel withdrew the charges of violations of DR 2-106(A) (clearly excessive fee) in the relations of Kerpelman to Malcomb and Draper. We find this exception to be without merit.
25 and 26 — Allegations that Judge Levin “consciously, maliciously, and deviously misled this Court” and “distort[ed] the Record”
These exceptions are so frivolous as to be unworthy of comment.
27, 29, and 30 — Draper as under the influence of cocaine
Kerpelman says in these exceptions:
27. As to Draper, the Record contains a clear inference that he was under the influence of cocaine when he testified before Levin; as a matter of law an attorney cannot be found guilty for a disciplinary violation upon the testimony of one under the influence of cocaine.
29. The witness Draper testified in the case, and then after suspicions were aroused on the part of the Respondent, an Interrogatory was submitted to
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him asking whether he was on cocaine at the time he testified. Draper took the Fifth Amendment. Levin refused to strike the testimony. Levin accepted the word of Draper as to what had happened over the word of Kerpelman. This exception is that as a matter of law an attorney may not be found guilty under a “clear and convincing proof” test where the only evidence against the attorney is the uncorroborated testimony of a person who took the Fifth Amendment as to whether he was under the influence of cocaine when he testified.
30. The averments of exception 29 are hereby adopted by reference; Levin’s refusal to strike Draper’s testimony was severe and substantial error.
He fails to point out the portion of the record from which one might perceive this clear inference. As Bar Counsel puts it, Kerpelman “builds his case for the lack of competence of Draper upon his own suggestions and innuendoes, which are devoid of proof.” We agree. Draper testified on June 18, 1979. If in fact Kerpelman at that time had information that Draper was under the influence of cocaine while testifying, that information should have been brought to the attention of the trial judge then. This allegation was presented to the trial judge at the last hearing in this matter in September 1979. Thus, it was clearly before the trial judge when he evaluated the evidence adduced. He is not clearly in error in his evaluation.
31 — Admission of evidence as to Kerpelman’s “further[ing] fraud on the Court”
This exception in its entirety reads:
Levin erroneously admitted evidence concerning Respondent’s “further(ing) fraud on the Court” (See page 67 of Levin’s opinion) although the Respondent was not charged with this. This was the material relating to Malcomb having committed perjury in obtaining his original divorce by stating
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that the separation took place before the date when it actually did.
This was another side issue brought in by Levin, it obviously colored his decision although he did not make a finding of guilty on this matter, but the admission of this evidence must have been prejudicial. See Bar Association v. Cockrell, 270 Md. 686, 313 A.2d 816 (1974) holding that the charges must be “sufficiently clear and specific” so as to make the attorney aware of what he is compelled to answer for and defend against. At no time prior to the admission of this evidence by Levin had Kerpelman been charged with anything having to do with this backdating, which occurred long before Kerpelman was representing Malcomb. It was sprung on Kerpelman for the first time in the midst of the trial.
This is a false issue, to put it mildly. We have already quoted from Judge Levin’s opinion (without specifying, however, that he said it on page 67) to the effect that on the issue of backdating of the separation agreement he was “not convinced by clear and convincing evidence that [Kerpelman] furthered a fraud on the court.” He also said in that opinion:
Respondent tried to exploit the fact that Malcomb accommodated [his former wife] when she “backdated” their separation agreement one month. This was mendacious conduct on Malcomb’s part and Respondent excoriated Malcomb. However, by the same token, Respondent too knew that the March 29, 1974 agreement was based upon a fraudulent date and he too did the same thing as Malcomb — he kept quiet. His testimony concerning this inaction is evasive and unconvincing. Apart from this, I find Malcomb’s testimony truthful and credible.
Kerpelman began his cross-examination of Malcomb on June 19. When court reconvened on June 21 other witnesses
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were put on the stand as an accommodation to various persons. Then Malcomb resumed the stand for further cross-examination. The first question propounded by Mr. Kerpelman to Malcomb was whether he had “ever lied to get a desired result in an important matter.” After a response that he was unaware of having done so, Kerpelman showed him a letter from Malcomb to Kerpelman dated May 5, 1976. Then the record reflects:
MR. KERPELMAN: Now, if Your Honor please, I feel that, perhaps, it is incumbent on me to suggest to the witness that he has a right, I believe, not to answer under the Fifth Amendment to the United States Constitution. Shall I advise him on that?
A lengthy discussion then ensued. Ultimately a copy of the letter in question was made and delivered, with her husband’s consent, to Mrs. Malcomb in order that she might consult an attorney on his behalf. When court resumed that afternoon it was brought out that after consultation with his attorney Malcomb had no objection to testifying. The letter in question was shown to Malcomb. After Malcomb’s identification, it was admitted into evidence upon Kerpelman’s motion as “Respondent’s Exhibit No. 5.” The first paragraph of the letter states:
At the time my former wife and I signed our separation agreement, she requested that I agree that the separation actually had taken place the previous February rather than in March. She seemed very anxious that I do this, so I agreed. This obtained the divorce one month sooner than would otherwise have been possible.
Having himself introduced the letter into evidence, Kerpelman cannot now be heard to complain relative to its admission. Moreover, as Kerpelman concedes, the trial judge did not find clear and convincing evidence to indicate that Kerpelman had furthered a fraud on the court.
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32 — Judge Levin’s alleged “clear and absolute error of law” relative to Kerpelman’s fee dispute with Malcomb
In this exception Kerpelman states:
32. Levin committed a clear and absolute error of law in coming to his conclusion that Malcomb had been overcharged. At page 63 of Levin’s opinion he referred to the Respondent’s continuing to contend, to argue, in Malcomb’s behalf, upon the question of whether Malcomb should pay support when one child was awarded to him and one child was awarded to the mother. Levin states the question was not still open. [(Emphasis in original.)]
At page 64 of his opinion Levin, with emphasis, states:
“Despite Merle’s (the mother’s) earning capacity
(she was not then employed) and marriage, it was decidedly unrealistic to expect any court to not require a father (earning near $22,000 per year — as per Malcomb’s Answer 3 to Merle’s Interrogatory — as prepared by Respondent) to pay something for the support of his child.”
This is a complete and total misstatement of the law as it existed at the time in question, which was 1976. At that time the law was enunciated in the case of Hare v. Hare, a per curiam decision filed February 22, 1974, No. 443, September Term, 1973. This is an unreported decision and it is not referred to here as a citation. Rather it is referred to to show what the Court of Special Appeals itself has said the law was at that time, and because reference to it was part of the trial testimony. The unrefuted, uncontradicted, evidence in the case before Levin was that this was the law at that time. The Respondent specifically so testified. But no, Levin takes matters into his own hands and states the law
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another way, and erroneously. At page 7 of the Hare opinion it is stated:
“The amount of support each will be required to provide is to be determined by an evaluation of each party’s relative financial status, work history and earning capacity.” (Emph. supp.)
Thus Levin’s finding was clearly erroneous as a matter of law.
A copy of Hare v. Hare is attached hereto.
The Hare v. Hare test of earning capacity was not changed until Rand v. Rand, [280 Md. 508,] 374 A.2d 900 [(1977)], wherein, in 1979 [sic], the court seems to have changed the test to something else. But the rule set forth in Hare is the rule as it existed at the time in question.
Kerpelman testified in the case below that this was the law and there was no contradiction. Nor can any citation be produced against this proposition. Kerpelman testified that he had this above quoted passage memorized and it was the test in all of his cases at that time.
It is also pointed out that the testimony was that the mother was married to a spouse who was earning around $30,000 per year, and therefore had negligible or no overhead expenses of her own, so that whatever money or earning capacity she had, was entirely available for the support of the child in question. [Emphasis in original.]
What Judge Levin said on page 63 of his opinion was:
It is undisputed that Respondent never discussed any of his escalating bills with Malcomb beginning with the Six Hundred Fifty Dollar ($650.00) bill. He simply sent them to Malcomb. As to Respondent’s August 26, 1976 bill of One Thousand Two Hundred Fifty Dollars . . . (“Additional final fee based on successful result,”) if the July 20, 1976 conference (at 2:00 P.M.) with Judge MacDaniel left matters so
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up in the air as Respondent contended (“subject to all sorts of wavering winds of change . . . open at that time, was the question of whether Malcomb should pay support, it was still open to contest”), why would Respondent charge Malcomb an additional fee for “successful result?” According to Respondent, he felt that the July 20, 1976 decision reached by Judge MacDaniel (requiring Malcomb to pay Twenty-five Dollars . . . per week as support for Heather) was “unreasonable and unfair” and felt it would be “preferable to have a formal hearing.” Obviously, in Respondent’s mind, this could not be called a “successful result” under such unfair circumstances even if Malcomb did retain Kirsten (whom he had before Respondent came to represent him).
The quotation by Judge Levin on page 63 concerning “subject to all sorts of wavering winds of change,” etc., was from Kerpelman’s response to Bar Counsel’s demand for admission of relevant facts. The demand was that Kerpelman admit that “in [a] telephone call [previously referred to in the demands he] advised John D. Malcomb that the `custody matter,’ referring to the decision in the case of Malcomb v. Malcomb, Equity No. 78654, was not yet settled.” Kerpelman denied the statement, saying he “ha[d] no recollection as to this but by virtue of the fact situation, [it was] quite unlikely that this would have been stated,” adding that “the question [was] designed as a conscious trap for the tryer [sic] of fact in this case.” He then went on to claim “that custody matters and in fact all equity matters are in fact still open until decree is signed.” He then made the other statements quoted by Judge Levin.
We agree with Judge Levin that under the law as it has existed and continues to exist it is unrealistic to expect a court not to require a father earning $22,000 per year to pay something for the support of his child.
Kerpelman is in error when he suggests that the trial judge came to a “conclusion that Malcomb had been overcharged.” He reached no such conclusion. He
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determined, as we have earlier indicated, that Kerpelman represented to Malcomb that his total fee for representation would be $1,000.00 and no more, but that in violation of this agreement Kerpelman charged or attempted to charge Malcomb fees over and above the agreed upon amount, that Kerpelman made a wilful misrepresentation to Malcomb as to the fee, and that Kerpelman maliciously and improperly escalated the fee charges to Malcomb without any basis, without any agreement, without any warning and without the escalated charges bearing any relationship to the amount of work done.
33 — Changes in transcript
In this exception Kerpelman states:
33. Levin has freely, and over objection of the Respondent, made numerous changes in the transcript. These objections appear in the file in the form of letters [sic] from the Respondent. Levin was not authorized by law, and it is unlawful for him to make such changes. He was requested by the Respondent to, at best, make changes by striking through but leaving, the old material so that it could still be seen as part of the record. This too, he refused to do.
Again, Kerpelman neither gives the specifics of his allegations nor cites authority for his position.
The trial judge patiently went over the transcripts. He wrote to the court reporters involved indicating that he wished to bring to their “attention certain errors [he] perceive[d].” He said these corrections were “very minor but [he] fe[lt] that the official transcript should reflect accurately what was actually said.” In each instance he said:
If you do not tell me you disagree with the within by January 9, 1980 (either in writing or verbally), then I will assume that as far as you are concerned, I may correct the official transcripts accordingly. I am sending a copy of this letter to Bar Counsel and Respondent and if they do not object (in writing) on
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or before January 16, 1980, then I shall actually correct the official transcripts accordingly. If either does so object, in writing before January 16, 1980, I shall set in this matter for hearing promptly.
One stenographer stood by his record as to one entry. As to another where the trial judge thought the word “other” should be “none” the stenographer believed it should be “more.” Neither Bar Counsel nor Kerpelman filed objections within the time specified.
There are two letters in the file from Kerpelman after the deadline set in Judge Levin’s letters. One such letter, which hardly can be called an objection, is dated February 1, 1980. It states:
Citizen Marshall A. Levin Criminal Courts Building Courthouse Baltimore, Maryland 21202
RE: Attorney Grievance Commission v. Kerpelman Misc Docket (Subtitle BV) No. 1, Sept. Term 1979
Citizen Levin:
I have your various letters concerning “errata” in the transcript.
I am reminded of the sage who said:
“Thou seest the mote in the eye of thy brother but seest not the beam in thy own eye.”
Why don’t you disqualify yourself in this matter as your oath of office requires you to do.
/s/ Kerpelman Kerpelman
K/bg
cc: J. Martin McDonough, Attorney
The other letter is dated January 29. It “demand[s]” that no changes be made. It “also demand[s]” that if there are changes that the transcript be made to show “what the
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reading was before [the judge] changed it and what the reading was after [he] changed it.” (Emphasis Kerpelman’s.) The record makes abundantly plain the bases for change.
The following are a few examples selected at random from the various changes proposed by Judge Levin:
DATE PAGE LINE AS IN TRANSCRIPT SHOULD BE
5/28/79 42 19 Mosher Moser
5/29/79 271 13 Slicker Slicher
6/19/79 83 24 to too
6/19/79 147 4 aggitated agitated
7/16/79 80 12 or are
9/7/79 6 7 epitaphs epithets
9/10/79 103 8 affect effect
9/10/79 106 10 insistance insistence
This contention is without merit.
34 — “[A]buse of, and a denial of Due Process”
In this exception Kerpelman contends:
34. It is an abuse of, and a denial of Due Process to have the fact inquiry made by reference, in effect, to a master, and the question of disposition performed by this court; it is only in the course of a full-fledged fact finding inquiry that the true context, coloration, background, and proper inferences relating to disposition can be acquired; the procedure being used here is therefore invalid.
This is yet another of his contentions for which Kerpelman cites no authority.
For generations in proper circumstances courts, state and federal, including the Supreme Court of the United States, have made use of masters who have heard the evidence after which the ultimate disposition has been made by the court. This contention is without merit.
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35 — Denial of due process by the extent of the proceedings
In this exception Kerpelman contends:
35. The proceedings were so protracted, expanded, and enlarged, particularly by bringing in collateral and other inadmissable [sic] issues, that the court is now presented with a transcript which it is believed is so long that members of this Court will not read it and the case will be decided not only on the evidence presented, but on the so-called findings of Levin; and these are distortions; and the Respondent is denied thereby Due Process of law.
As these exceptions illustrate, if these proceedings have been unduly “protracted, expanded, and enlarged,” to a large degree this is the work of Mr. Kerpelman. Although he has raised myriad issues in his exceptions, many of which are frivolous, to put it mildly, he has made no reference to one very important issue which we shall discuss later in this opinion.
The contention is without merit.
36 — This Court’s rule making power
In this exception Kerpelman states:
36. This Court’s rule making power in this area was a wrongful usurpation of legislative power, and was unlawful; or it was an unlawful delegation by the legislature to this court; in either case it is a denial of Due Process as well as an unlawful exercise of power to determine who shall practice law. Note that the legislature has designated the oath of office for attorneys and it is for the legislature alone to set standards. This court, in addition, bears its own bias and prejudices as to how law should be practiced and has induced these biases and prejudices into, and read them into the proceedings herein, which it has no lawful right to do, and the proceedings are invalid.
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Again, no authority is cited for the contention. The superintending power of courts over their bars is deeply ingrained in the system of law which we inherited from our forebears at the time of the American Revolution. It has continued to this day. The contention is without merit.
37 — 40, inclusive — Findings were arbitrary and capricious, against the evidence, against the weight of the evidence, and not based on clear and convincing evidence
We hold to the contrary. We find clear and convincing evidence to support the conclusion of Judge Levin that Kerpelman escalated his fee in the Malcomb matter, that Kerpelman misrepresented to Malcomb that there remained work to be done on Malcomb’s case, and that Kerpelman suggested to his client that in violation of a decree of the Circuit Court for Anne Arundel County (of which Kerpelman had knowledge) that the client physically remove his child from the custodian under the decree, the child’s mother. Accordingly, we find clear and convincing evidence of violation of DR 1-102(A)(1) (relative to violating a disciplinary rule), DR 1-102(A)(4) (relative to engaging in conduct involving dishonesty, etc.), DR 1-102(A)(5) (relative to engaging in conduct prejudicial to the administration of justice) and DR 1-102(A)(6) (relative to other conduct adversely reflecting upon an individual’s fitness to practice law).
We shall leave to our discussion under Part V of this opinion the question of whether Kerpelman’s conduct in the matter of the child amounted to a violation of DR 1-102(A)(4) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); DR 1-102(A)(5) (engaging in conduct that is prejudicial to the administration of justice); DR 1-102(A)(6) (engaging in any other conduct that adversely reflects on his fitness to practice law); DR 7-102(A)(7) (to the effect that a lawyer shall not counsel conduct the lawyer knows to be illegal), and DR 7-106(A) (concerning advising a client to disregard a ruling of a tribunal made in the course of a proceeding).
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41 — Charges added after trial began
In this contention Kerpelman says:
41. Charges were added and adduced over and against the Respondent after the trial was begun contrary to the requirements of Bar Association v. Cockrell, 270 Md. 686, 313 A.2d 816 (1974).
As our previous discussion of the allegations against Kerpelman and the findings by the trial judge will reflect, Judge Levin’s finding of clear and convincing evidence of violations of the disciplinary rules applied to no charge added after the petition for disciplinary action was initially filed in this Court. Hence, this is yet another frivolous contention.
42 — Kerpelman’s memorandum
This exception is based upon what Kerpelman calls “[Judge] Levin’s failure to regard [sic] Respondent’s Memorandum filed below.” He does not elucidate. Thus, we do not know to what memorandum he refers. He filed a number of memoranda. We can only say that from a detailed, careful examination of the record and transcript we find that Judge Levin gave commendably patient, careful, courteous and detailed consideration to each and every contention advanced by Kerpelman, no matter how frivolous the contention might have been or how irritating or discourteous Kerpelman’s manner in advancing his contention might have been.
43 — Ex post facto
In this exception Kerpelman says:
43. The present proceedings are being carried on under what amounts to an ex post facto law; the Respondent should have been proceeded against under the old Canons of Professional Ethics.
Yet again, the basis of the contention and the authority therefor is not specified.
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Rule BV1 j defines “misconduct” as “an act or omission by an attorney, individually or in concert with any other person or persons which violates the Disciplinary Rules of the Code of Professional Responsibility as adopted by Rule 1230. . . .” That Code, appearing as Appendix F of the Maryland Rules, was adopted October 13, 1970. There have been but two amendments since then, one on December 9, 1976, effective January 1, 1977, as result of the Report and Recommendations of the Special Commission to Study Prepaid Legal Service Plans in Maryland, and another on March 8, 1978, effective May 1, 1978, pertaining to lawyer advertising. Those amendments are not involved in this case. The instances in question here all took place subsequent to 1970. Accordingly, this contention likewise is without merit.
44 — Tax
In this exception Kerpelman states:
44. The present proceedings were brought and supported under a provision of the Rules of this court laying a tax on members of the legal profession as a requirement of practicing law; only the Legislature can lay or levy a tax; the proceedings therefore are invalid.
He obviously is referring to the fact that Rule BV2 creating the Attorney Grievance Commission provides for the establishment of the Disciplinary Fund. Members of the Maryland Bar are required to contribute annually to it “as a condition precedent to the practice of law” at the same time they pay the sums required under Rule 1228 establishing the Clients’ Security Trust Fund. The operations of the Attorney Grievance Commission and the office of Bar Counsel are financed from this fund.
In re Member of Bar, 257 A.2d 382 (Del. 1969), appeal dismissed sub nom. In re Reed, 396 U.S. 274 (1970), concerned a similar attack upon Delaware’s clients’ security trust fund. In rejecting such a contention Chief Justice Wolcott said for the Supreme Court of Delaware, “The short
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answer to this contention is that the payment required is an assessment and not a tax.” Id. at 385. This may or may not be correct, but even if Kerpelman’s point were well taken, it would not be an excuse for unethical conduct on the part of a member of the bar of this Court, nor would it be a defense to charges relative to such conduct.
V Legal effect of counseling violation of a court decree
It will be recalled that DR 7-102(A)(7) states that in his representation of a client a lawyer shall not counsel or assist his client in conduct which the lawyer knows to be illegal. This is the principal disciplinary rule which Kerpelman was found by the trial judge to have violated when he gave advice relative to the child. Canon 7, to which this disciplinary rule is applicable, states that a lawyer should represent a client zealously within the bounds of the law.
Kerpelman at oral argument before us opened with a reference to the oath of an attorney when admitted to practice in this Court, focusing on that portion of Code (1957) Art. 10, § 10 in which an attorney says:
I do solemnly swear (or affirm) that . . . I will bear true allegience to the United States, and that I will support, protect and defend the Constitution, laws and government thereof as the supreme law of the land; any law or ordinance of this or any State to the contrary notwithstanding.
He then said:
An attorney is to make a judgment as to what rules, ordinances and statutes are unconstitutional and by his Maryland oath of office set forth by the Maryland Legislature, he is to place his opinion of the Constitution above the rules of this Court or an ordinance or statute.
He argued that pursuant to his oath it would be permissible for an attorney to advise a client to violate a court order he deemed constitutionally invalid.
Page 379
The conventional wisdom of the courts and the legal profession has been that a lawyer may not advise his client to violate a law or court order, except in the instance of a test case where there is a good faith belief that the statute or order may be invalid See, e.g., EC 7-1; EC 7-2; EC 7-3; EC 7-5; EC 7-22; former Canon 16; former Canon 32; A.B.A. Project on Standards for Criminal Justice, Standards Relating to the Defense Function § 3.7 (approved draft 1971); Cowen, The Lawyer’s Role in Civil Disobedience, 47 N.C.L. Rev. 587, 592-93 (1969); H. Drinker Legal Ethics, 150, 152 (1953); Maness v. Meyers, 419 U.S. 449, 458-60, 468, 95 S.Ct. 584, 42 L.Ed.2d 574 (1975); Chapman v. Pacific Tel. Tel. Co., 613 F.2d 193, 197 (9th Cir. 1979) In re Grand Jury Proceeding, 601 F.2d 162, 169 (5th Cir. 1979) United States v. Dickinson, 465 F.2d 496, 512 (5th Cir. 1972) Odell v. Bausch Lomb Optical Co., 91 F.2d 359 (7th Cir. 1937); Snyder v. State Bar, 18 Cal.3d 286, 133 Cal.Rptr. 864, 555 P.2d 1104 (1976); In re Mekler, 406 A.2d 20 (Del. 1979) Committee on Professional Ethics, Etc. v. Crary, 245 N.W.2d 298, 307 (Iowa 1976); In re Marietta, 223 Kan. 11, 569 P.2d 921
(1977); In re Daly, 291 Minn. 488, 489, 495, 189 N.W.2d 176
(1971); In Matter of Johnson, 597 P.2d 740 (Mont. 1979); In re Cooley, 95 N.J. Eq. 485, 490, 125 A. 486 (1924), aff’d 103 N.J. Eq. 377, 143 A. 916 (1928); In re Hittson, 20 N.M. 319, 325, 326, 150 P. 733 (1915); Territory v. Clancy, 7 N.M. 580, 37 P. 1108 (1894); In re Apfel, 202 App. Div. 76, 195 N.Y.S. 325, 328 (1922); In re Clostermann, 276 Or. 261, 263, 554 P.2d 467
(1976); and Ex parte Miller, 37 Or. 304, 60 P. 999 (1900).
In this instance Kerpelman has not articulated an argument that the decree was constitutionally infirm. In fact, there is not the slightest suggestion of any infirmity in the Draper custody decree. This was no test case nor did the custody order compel the surrender of any constitutional right.
As to Kerpelman’s argument that he did not commit the act alleged, we point out that Judge Levin said:
I find as a fact that in August, 1976, Respondent
Page 380
did suggest to his client, in flat violation of the Decree, that he (Draper) physically take the child from the Syracuse residence where she was living with her mother; that it was Respondent’s and not Draper’s suggestion; that Respondent told Draper to not make it look like a breaking and entering but just to get the child; that if it was successful, “we” might get a faster response from the court and it would show good concern on Draper’s part; and that Respondent told Draper not to say anything to anybody about it. I find further that the idea of taking [Marlene’s estranged husband] and the two men was Draper’s, not Respondent’s (but that Draper’s idea emanated directly from Respondent’s suggestion that Draper not break in. Thus Draper took Marlene’s estranged husband to trick her into opening the door).
* * *
Respondent is obliged to admit that he advised any number of his clients to perform child snatches, yet he tried to expiate his admission by saying he only meant legal child snatches. By legal, he says he means taking your child before there is a court order. He acknowledges, however, he made an “unfortunate choice of words” and he further acknowledges that he is “not saying that it (child snatch) cannot cover an illegal one.” His explanation is fanciful and absurd. He is hoist by his own petard.
It is interesting to note that when Draper testified at the March 23, 1977 hearing as to why he snatched the child, he testified that he went on Respondent’s advice. Thus Draper’s exact same version was given before Judge Beardmore [in the child custody hearing in the Circuit Court for Anne Arundel County] a time when there was no complaint by him against Respondent, the same version was given before the Inquiry Panel; and the same version was given in instant case. Draper’s
Page 381
testimony is entirely consistent and credible as opposed to the testimony of Respondent — testimony which is riddled with self-contradiction, inconsistency and illogic. [(Emphasis in original.)]
We have already held that there was clear and convincing evidence to support these findings.
The courts were open for a petition for a change of custody, as Kerpelman well knew, having prepared such a petition. If people are permitted to pick and choose which orders of court they propose to obey, our legal system will soon disintegrate and our government of laws will be replaced by anarchy.
We conclude, therefore, that Kerpelman’s conduct in the matter of the child amounted to a violation of DR 1-102(A)(4) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation), DR 1-102(A)(5) (a lawyer shall not engage in conduct that is prejudicial to the administration of justice), DR 1-102(A)(6) (a lawyer shall not engage in any other conduct that adversely reflects on his fitness to practice law), DR 7-102(A)(7) (a lawyer shall not counsel conduct which he knows to be illegal) and DR 7-106(A) (a lawyer shall not advise a client to disregard a ruling of a tribunal made in the course of a proceeding), as well as DR 1-102(A)(1) (a lawyer shall not violate a disciplinary rule).
VI Sanctions
There have been no disciplinary actions against Kerpelman in this Court in which he has been adjudged in violation of any of the Disciplinary Rules. Bar Counsel has not advised us of any disciplinary actions in trial courts prior to our assuming jurisdiction of such matters in which Kerpelman was found to have violated the Disciplinary Rules nor has he advised us of any reprimands. Thus, his prior professional record appears to be unblemished. Many times in recent years this Court has quoted from Ex parte Brounsall, 2 Cowp. 829 (1778), what has come to be known
Page 382
as “The Lord Mansfield Rule.” It is to the effect that in disciplinary proceedings the inquiry is to whether after the conduct of such individual it is proper that he should continue to be a member of a profession which should stand free from all suspicion, such proceedings not being by way of punishment, but the court in such cases exercises its discretion whether a person whom they have formerly admitted to practice is a proper person to be continued on the roll or not. By the same token, a suspension is for the protection of the public, not by way of punishment of the individual lawyer. It protects the public because it demonstrates to members of the legal profession the type of conduct which a court will not tolerate.
We have before us three separate violations of the Disciplinary Rules the matter of the Malcomb fee, the matter of the statement to Malcomb that his custody matter had not been concluded when in fact it had been, and the matter of the advice relative to retrieval of Draper’s child in disregard of a court order.
Kerpelman’s conduct in the matter of his fee and his misrepresentation to his client of the then posture of the proceedings pending in the Circuit Court for Baltimore County represents a type of conduct against which the public is entitled to protection, conduct which brings the legal profession into disrepute. It reflects adversely upon the courts since lawyers are officers of the courts. We have here a finding by the trier of fact that Kerpelman made a wilful misrepresentation to Malcomb as to his fee and that he maliciously and improperly escalated his fee charges to Malcomb without any basis, without any agreement, without any warning, and without the escalated charges bearing any relationship to the amount of work done. We likewise have a conclusion that Kerpelman deliberately misrepresented to Malcomb that there remained work to be done on the case and that Kerpelman was actually engaged in performing such work when no work remained to be done, a misrepresentation made to justify an improper fee.
Although one may infer from the proceedings here that the Draper matter is not the first and only instance in which
Page 383
Kerpelman had advised self-help on the part of his clients in disregard of a court order, such other instances may not be used in determining the sanction, he not having been charged with them. Bar Ass’n v. Cockrell, 270 Md. 686, 313 A.2d 816 (1974). If Kerpelman were charged with multiple violations of court orders in child custody or other matters under circumstances similar to the case at bar and such charges were proved, we would disbar him forthwith without hesitation. Such contumacious conduct on the part of an officer of the court sworn to uphold the law cannot be tolerated.
We conclude that the proper sanction to be imposed here, taking into account all of Kerpelman’s misconduct, is a suspension of two years. Therefore, Leonard Jules Kerpelman shall stand suspended from the practice of law in this State for the period of two years accounting from thirty days from the date of this opinion. He shall stand suspended beyond that date unless and until all costs incurred in connection with this proceeding are paid in full.
It is so ordered; respondent shall pay all costs as taxed by the Clerk of this Court, including the costs of all transcripts, pursuant to Maryland Rule BV15 c for which sum judgment is entered in favor of the Attorney Grievance Commission against Leonard Jules Kerpelman.
APPENDIX
In his report to us Judge Levin set forth in detail his
findings of fact and conclusions of law. He provided a citation
to appropriate portions of the transcript for each and every
factual statement made. We reproduce a portion of that report as
an appendix to this opinion. Although we in our opinion have
referred to the Malcomb matter first and the Draper matter second
because that is the order in which they appeared in the original
complaint, we here set these
Page 384
matters forth in the order in which they appeared in Judge
Levin’s opinion. We have eliminated his citations to the
transcript. With minor stylistic editing where the matter of
money is mentioned, Judge Levin’s opinion states in pertinent
part relative to the charges before him (all emphasis being his):
THE DRAPER CASE
Issue One —
Did Respondent agree that his
representation of Draper would cost
“about $1,000.00” at a time when
Respondent intended to charge more
based on certain factors including a
successful result?
Findings of Fact
Draper, age twenty-six at instant hearing, was married to
Marlene Boetker (Marlene) on July 29, 1970. One child, Jennifer
Britton Draper (child) was born of this marriage on March 19,
1972. On October 15, 1974, Marlene sued Draper for an absolute
divorce on the ground of mutual separation and sought custody of
the child; Draper admitted all of her allegations by his answer.
. . . On January 7, 1975, Marlene and Draper were divorced
absolutely, Marlene was granted custody of the child, Draper was
awarded “reasonable rights of visitation” and ordered to pay
$25.00 per week child support (Decree).
Draper felt later that the child was living in an “unfit
environment” and wanted to “change custody.” When he met
Respondent in April, 1976 at a meeting of Fathers United for
Equal Rights (FUER), he asked Respondent how much Respondent
would need “for the case” and he says he was told “about
$1,000.00” by Respondent (court costs would be extra). Draper
asked Respondent “. . . is that good? You know, is that what I
can count on? And he said yes.” According to Draper, Respondent
also told him he
Page 385
(Respondent) would need a $500.00 retainer “to start procedures.”
Shortly thereafter (April 15, 1976), he obtained a $500.00 Money
Order and sent “your retainer of $500.00” to Respondent together
with the original of the Decree on approximately April 16, 1976.
On May 14, 1976, Respondent filed a petition on behalf of Draper,
to modify the custody part of the Decree. Repondent specifically
signed his (Respondent’s) name to the petition which, inter
alia, stated that the Decree (sought to be modified) “awarded
custody of the minor child . . . to (Marlene).”
In the latter part of 1976, Draper received a bill from
Respondent (dated July 28, 1976) stating “BALANCE NOW DUE”
$460.00 to which he responded by purchasing a Money Order for
$460.00 on September 7, 1976. He and Respondent had “set up a
date” because Draper wanted to discuss the case with Respondent
and so Draper went personally to Respondent’s office. When Draper
got there, Respondent “wasn’t there so I paid his secretary the
money.” At Draper’s request, Respondent’s secretary gave Draper a
receipt which stated, inter alia, “Balance Paid” (he asked “to
make sure everything was paid and that I had proof of it”).
In August, 1976, Draper heard that Marlene had moved out of
Maryland and that the child was living in a “bad environment.” He
went to Syracuse, New York on August 21, 1976 (where the child
and Marlene resided) with Marlene’s estranged husband and two
male friends and “we rushed in and obtained my child.” This
retrieval was in flat violation of the Decree. On September 3,
1976, Respondent, on behalf of Draper, filed a “petition for
immediate hearing” asserting that Marlene was living with a
“boyfriend” charged with rape and breaking and entering “who beat
the child” and asked for an immediate hearing (for change of
temporary custody) because “this is an emergency situation.”
Although Draper swore to these “facts” on August 31, 1976, by way
of attached Affidavit, neither he nor Respondent informed the
court of the illegal child snatch. Thereafter, Marlene filed a
petition for contempt on September 30, 1976, asserting that she
had moved to New York to “avoid continued harassment” by Draper
and that he
Page 386
“broke into her apartment in Syracuse, New York and assaulted her
and snatched the child out of her bed.” On March 23, 1977, after
hearing, the Decree was modified by granting custody of the child
to Draper. . . . The next day Respondent billed Draper $850.00
for “additional final fee based on fully successful conclusion of
case” whereupon Draper wrote Respondent a letter of outrage
informing Respondent he did not “intend to pay a cent” and was
“taking this matter to the American Bar Association.”
In April, 1977, Draper wrote Respondent discharging him as
Draper’s attorney. (The Court of Special Appeals meanwhile
reversed, Draper v. Draper, 39 Md. App. 73 (1978), and on
remand, Marlene was granted custody of the child by subsequent
decree of April 14, 1978. . . .) On June 6, 1977, Draper filed
complaint with the Attorney Grievance Commission.
The sole dispute is whether Respondent told Draper that the
(about) $1,000.00 was a “flat fee” or whether it was a retainer.
Respondent contended he had a retainer arrangement and there
never was a “flat fee basis.” He testified that custody cases are
unpredictable and that he rarely represented custody cases on a
flat (or “set”) fee basis. He argued that when his secretary gave
Draper a receipt marked “Balance Paid”, she was “newly hired, had
not been authorized to determine when any fee was paid in full
and had never before given a receipt to a client.” He referred to
his “temporary note” which purported to show “Retainer fee $950,
$500 down” and bill June 23, 1976 which purported to be a bill
from him to Draper indicating a “Retainer Fee” of $950.00.
His theory was that there was an “implied contract” between
himself and Draper and that it was proper (under a “DR Rule”
which he did not number) to charge the additional fee “based on
the successful result — that he obtained custody.” At other
times, Respondent believed he had a “verbal agreement” as to
fees.
Draper denied receiving the June 23, 1976 bill from Respondent
and when Draper testified at instant hearing,
Page 387
Respondent did not cross examine him about it. When Draper wrote
his letter of outrage to Respondent, he specifically informed
Respondent that he had paid Respondent a total of “$960.00 which
you quoted to me. The total which you want would bring the
amount to $1,810.00 which is double and not what was told to me.”
He told Respondent he “had great trust and respect for you . .
. but I am very disappointed.” Respondent responded to the letter
of outrage by his (Respondent’s) letter of April 25, 1977 to
Draper which expressed surprise that Draper would question the
additional $850.00 bill and Respondent was “rather offended” at
Draper’s suggestion of “overcharging.” Yet Respondent nowhere
mentioned the June 23, 1976 bill (which would have cleared up the
matter, it would seem).
In addition, Respondent’s notion of an “implied” contract
leaves much to be desired. As an attorney with thirty years
experience dealing with a (high school educated) plumber, the
client was at Respondent’s mercy. He furnished his client with no
guidelines as to what future fees would be and the “additional”
$850.00 bill was devised solely by Respondent. At no time did
Respondent discuss the additional fee with his client before he
sent it for payment. A short and simple letter to Draper setting
out the fee agreement alleged by Respondent would have obviated
any misunderstanding. Respondent’s failure to observe the plain
common sense of Ethical Consideration 2-19 left much to be
desired as has been said.
Conclusion of Law
Despite all of the highly suspicious circumstances, I cannot
find by clear and convincing evidence that Respondent intended
to improperly charge a fee to Draper in violation of their fee
“agreement.” Respondent is entitled to the presumption that
Draper received the June 23, 1976 bill and Draper’s denial of
receipt (by way of answer to interrogatories) is simply not
sufficient to overcome the finding that Respondent sent it and
Draper received it. If Draper received it, he was on clear notice
that the payment of $960.00 was a retainer and not a “flat fee.”
Page 388
Issue Two —
Did Respondent violate DR
2-110(A)(2) by allegedly refusing to
deliver to Draper, the decree of
modification (or copy) of March 23,
1977 (awarding custody to Draper —
the result sought by Draper and
objective in his hiring Respondent)
after the modification hearing and
after Draper discharged Respondent?
Did he further violate said
Disciplinary Rule by not avoiding
foreseeable prejudice to Draper
before he withdrew his
representation of Draper and by
doing nothing for Draper in the face
of danger of additional litigation?
Findings of Fact
Draper discharged Respondent as his attorney in April, 1977. On
May 13, 1977, Marlene’s attorney wrote Respondent concerning
certain visitation problems. Respondent then wrote Draper, on May
23, 1977, telling Draper to give the matter his earliest
attention (he also said he didn’t wish to become involved “in any
further services upon your behalf” because Draper refused to pay
the “reasonable final fee bill”). At all of these times,
Respondent did nothing on behalf of Draper. Respondent then filed
a form, “Motion to Strike Appearance” on June 2, 1977 and on June
20, 1977, leave was so granted.
Previously, Draper asked Respondent for a copy of the “Decree”
(meaning the Decree of Modification whereby the court awarded
custody of the child to him). Obviously Draper needed the Decree
to prove the legal validity of his custody. Respondent refused
stating he would obtain it when the “outstanding” bill was paid.
He asserted an “attorney’s lien.”
Page 389
Conclusion of Law
Despite Bar Counsel’s contention that Respondent violated DR
2-110(A)(2) (because the fee was outside the scope of their
agreement” and hence the attorney’s lien was an “improper
assertion”), I do not conclude that Respondent did so violate it.
When Respondent received the letter from Marlene’s attorney, he
promptly wrote a letter of alert to Draper. As to the attorney’s
lien, it is recognized in Maryland. Attorney Griev. Comm’n v.
McIntire, 286 Md. 87 (1979) as a “passive lien on the papers,
securities and money belonging to a client coming into the
lawyer’s possession.” The Court of Appeals in Ashman v.
Schecter, 196 Md. 168, 173 (1950) also mentions “all papers,
securities and money” referring to them as “such things.” While
the Disciplinary Rules state that the attorney shall “deliver to
the client all papers” (emphasis supplied), the appellate
decisions also state the right of an attorney to retain all
papers, id. at 173. If the purpose of the lien is to protect an
attorney from non-paying clients, then it cannot be said that
Respondent improperly asserted the attorney’s lien.
If I cannot conclude by clear and convincing evidence that
Respondent charged an improper fee, then I cannot conclude by
clear and convincing evidence that Respondent improperly retained
the Decree.
Issue Three —
Did Respondent not violate DR
6-101(A)(2) by lack of adequate
preparation, in that he never
conducted discovery, never
interviewed any witnesses nor had in
person interviews?
Findings of Fact
All of the findings of fact set out [previously relative to the
Draper complaint] are incorporated in instant findings of fact.
Page 390
The face to face contacts between Respondent and Draper were as
follows:
a. Brief discussion at FUER meeting in April of 1976 dealing
with fee.
b. Twenty minutes on November 18, 1976 when a “merits” hearing
on the modification petition was to take place. It never took
place.
c. Hearing on modification petition on March 23, 1977.
Other than these, most of Respondent’s contacts with Draper
were by telephone calls to his staff and letters.
There was only one adversary hearing in the Draper case, that
on March 23, 1977 — the matter of Draper’s modification petition
(when Draper was absolutely divorced, he was not represented by
Respondent but by Stanley Sollins, Esq.). After Draper was cited
for contempt when he “violated a court order by grabbing the
child in New York,” there is no record of any hearing on the
specific issue of contempt (nor was Draper ever found guilty of
contempt).
Respondent produced two witnesses at this March 23, 1977
hearing: Draper and one Bertha Tawney. As to Bertha Tawney,
Respondent did not interview her before he put her on the stand.
Respondent feels that “personal interviews are not necessary” (of
witnesses before trial) nor did he conduct any in the Draper
case. He conducted no discovery either, that is, he filed no
interrogatories, notices for production, etc., requests for
admission, nor conducted any depositions.
The custody report of Judith Finn (a social worker of the Anne
Arundel County Department of Social Services) was received in
Draper’s case. It recommended that Draper receive custody of the
child and the trial court, relying heavily on her report, awarded
custody of the child to Draper. The trial court would not allow
Marlene’s attorney to cross examine Ms. Finn during Marlene’s
case but, on appeal, the Court of Special Appeals stated that “a
court appointed investigator in a custody case occupies the
position of an officer of the court and at the request of either
party, may be called as the court’s witness, subject to cross
examination by both parties.” Draper v. Draper,
Page 391
39 Md. App. 73, 81 (1978) (the trial court was reversed on a different
ground). After hearing, the court decreed custody to Marlene on
April 14, 1978 and there was no appeal nor have there been any
proceedings since then.
While Respondent’s representation of Draper is surely not a
paradigm of competence or adequacy, this court cannot find by
clear and convincing evidence that he handled the Draper matter
“without preparation adequate in the circumstances.”
His failure to interview personally Bertha Tawney, for example,
was of obvious detriment to his client because Respondent was
forced to claim “surprise” after her first substantive answer. If
he had interviewed her (or taken her deposition), he would have
known, at the outset, that she was not present at time felt to be
significant by Respondent. Actually, the “surprise” rule was not
applicable because Respondent had never even talked to his
witness (he only had talked to Draper). The refusal of an
attorney to personally interview a witness can logically lead to
problems (sometimes severe) because the attorney is left to rely
only upon the biased version furnished by his client — a version
that may not be true nor accurate. That is precisely what
happened with Bertha Tawney because when Respondent claimed
surprise, the trial court asked, “This is a different story than
what you were previously told?” and Respondent was obliged to
reply, “By my client, yes” (emphasis supplied). (Respondent
wanted to show that when Marlene came to the house with a
policeman, the child ran to Draper.) When Bertha Tawney said she
was not present at that particular time, Respondent was forced to
desist from further questioning. (He never produced the policeman
as a witness either.)
In addition, the failure to know what your witness will say in
testimony can waste everybody’s time: the court’s, the witnesses,
the attorneys and the parties. It is to be noted that
Respondent understood the value of discovery as when he
remonstrated with an opposing lawyer . . . in the Draper hearing
(“If you spend a little more time on interrogatories and more
preparation, you might be . . .”). Respondent asserts
Page 392
that in custody cases “You don’t know how many witnesses the
other side is going to produce in a domestic case and
particularly in a custody case. You don’t know what the facts are
going to be, you don’t know how they are going to expand by the
time the case comes along.” However, if he had filed
interrogatories, he would have known how many witnesses and
what the facts would be; if he had interviewed or deposed
witnesses, he could prevent them from “expanding.” Respondent
himself makes out a persuasive case of his own inadequacy.
Nor is Respondent’s assertion that he “won the case”
convincing. The essence of the trial court’s decision to award
Draper custody was based upon the social worker’s report (“The
court relies heavily on the report of Judith Finn and the
Department of Social Services,” Draper v. Draper,
39 Md. App. 73, 77 (1978)). One might say that the report won the case for
Draper. No matter what was responsible for the “win,” it was
short-lived in any event because Draper no longer has custody
(the trial court was reversed and the child is now in the custody
of her mother).
Conclusions of Law
However, this court cannot find by clear and convincing
evidence that Respondent’s representation was so inadequate as
to conclude that he violated DR 6-101(A)(2). While Respondent’s
failure to utilize obvious tools was probably dictated by his
desire to avoid costs (he claims he would have to pass on such
costs to his clients) the line between trial tactics and adequacy
of preparation can sometimes be blurred. Experts in the field of
family law feel that the “first interview” is of tremendous
significance. They advise office interviews of a minimum of one
to two hours uninterrupted by any distractions.
Contrast that with Respondent’s telephone theory, “It is
totally unnecessary for human beings to communicate information
one to the other, that they be in the same room and it has not
been so since the invention of the telephone and in fact far
before.” In fact, Respondent is apparently proud of his lack of
office interviews even boasting that some of his clients “never
see him until the day they go to court.”
Page 393
Respondent’s irresponsible boast that some of his clients never
see him until the day of trial can easily backfire on him. In
fact, conduct even less reprehensible may subject an attorney to
malpractice. Compare Bevevino v. Saydjari, 76 F.R.D. 88, 96
(S.D.N.Y. 1977) (attorney’s failure to prepare defendant’s doctor
for his deposition prevented him advancing a valid defense —
court suggests malpractice suit to doctor). On the other hand,
the conscientious attorney must not be required to spend his (and
his client’s) money needlessly. Nor should there be
overdiscovery. J.L. Ebersole, Discovery Problems: Is Help on the
Way? 66 A.B.A.J. 50 (Jan., 1980). But note the word
“conscientious” however. This should require, de minimus, an
effort to inform the client and involve him in decisions about
discovery. Regular discussion will not just make it harder for
clients to complain later, but will generate sympathy for the
attorney who treats his client as a person in a mutual
undertaking rather than as a child. While a reasoned decision
as to whether to pursue a particular avenue of discovery is
within an attorney’s discretion, Identiseal Corp. v. Positive ID
Systems, 560 F.2d 298, 302 (7th Cir. 1977), certainly the
total absence of discovery may well be outside the bounds of
discretion. See generally W. Barthold, Negligence in
Discovery: No Paper Tiger, Litigation, vol. 6, Fall 1979 at 39.
It must be noted, however, that Bar Counsel has specifically
dropped the “neglect” violation against Respondent leaving only
the inadequate preparation charge. Since Respondent knew he had a
favorable report from the Department of Social Services and since
he may have anticipated that the judge might be favorably
impressed by the neutral and experienced source, it cannot be
said that he was required to have prepared additionally. I really
cannot conclude by clear and convincing evidence that Respondent
has violated the latter rule under the circumstances.
Moreover, the “inadequacy” Disciplinary Rule nowhere spells out
any guidelines for instruction in this Orwellian field, Brown,
ABA Code of Professional Responsibility: In Defense of
Mediocrity 5 Valparaiso L.R. 95, 99 (1970), and before one may
find punishable inadequacy, a stronger case must be presented.
Some observers feel attorney conduct
Page 394
must reach proportions of grossness. 24 Hasting L.J. 675, 693
(1973), while others feel the standard of care may be more
closely akin to negligence. Zilly, Recent Developments in
Legislative Malpractice Litigation (Litigation, Vol. 6, No. 1,
Fall 1979 at 8, 17, 64). The American Bar Association Committee
on Ethics and Professional Responsibility declined to give
meaningful responses to various questions that could have
provided a more workable definition. The “inadequacy”
Disciplinary Rule is vague and general. Canon Six’s Ethical
Considerations nowhere enlightens us as to the meaning of
“inadequacy.” No mention is made of duties of investigation and
preparation, conferring with the client “early and often,”
frequently advising him, ascertaining and developing strategies,
filing appropriate motions (to produce, to request admission of
genuineness and authenticity), the duty to personally interview
clients and witnesses and the duty to file interrogatories and
when necessary, take depositions. One wants to raise the
competency of attorneys to at least a minimum level but one also
worries about the lack of specificity of the inadequacy
Disciplinary Rules. See generally Morgan, The Evolving Concept
of Professional Responsibility, 90 Harv. L. Rev. 702 (1977).
In sum, while Respondent’s representation was spotty and
somewhat deficient, this court cannot find by clear and
convincing evidence that Respondent handled the Draper case
without preparation adequate in the circumstances.
Issue Four:
Did Respondent violate any
Disciplinary Rule by advising
Draper to retrieve (meaning illegally
child snatch) the child from
Syracuse, New York in flat violation
of an unmodified court decree
awarding custody of the child to
Draper’s former wife (mother of the
child)?
Findings of Fact
The Decree of January 7, 1975 unequivocally granted
Page 395
Marlene custody of the child with reasonable visitation rights to
Draper. From January 7, 1975 to August 21, 1976, there was no
modification of the Decree. Draper met Respondent in April, 1976
and retained him to “change custody” because he felt the child
was living in an “unfit environment.” After Draper paid
Respondent his fee, Respondent filed a petition for modification
on Draper’s behalf on May 14, 1976, asking that Draper be awarded
custody. On May 17, 1976, the court, per the clerk, issued an
Equity Subpoena to Marlene at 139 Rigi Avenue, Syracuse, New York
13206 (to Answer or defend).
In early August, 1976, Draper was told by his former
mother-in-law that Marlene had moved out of the state and that
she was living with a criminal. Draper twice consulted with
Respondent on the telephone in early August, 1976 asking him if
“something could be done about this.” Respondent suggested that
Draper get the child “but not to say anything to anybody about
it, because it was not the procedure of attorneys.” Respondent
told Draper [,according to Draper,] that when he went, “not to
make it a breaking and entering charge type of thing but to try
to get in without breaking the door down, and, you know, just get
my child.” Respondent also told Draper that if he (Draper) were
successful “we might get a faster response from the court” and
that it might show “good concern on my part.” On August 21, 1976,
Marlene was living with the child in Syracuse, New York (and a
man named Jerry Cushman — later convicted of breaking and
entering).
On that date, Draper went to Syracuse, New York with the
estranged husband of Marlene . . . and two other males (“case her
boyfriend gave us some trouble”) and “we rushed in and obtained
my child” (from her bedroom).
On September 3, 1976, Respondent filed, on Draper’s behalf, a
petition for immediate hearing asking for a change of temporary
custody “because this is an emergency situation.” He mailed it to
Marlene on August 31, 1976 just ten days after the child snatch.
The upper left of the petition indicates it was typed three days
after the child snatch
Page 396
(August 24, 1976). Neither Respondent nor Draper advised the
court of the physical seizure of the child. On September 30,
1976, Marlene petitioned to hold Draper in contempt and on the
same date, the court . . . ordered Draper to return custody of
the child to Marlene pending litigation of the matter of
modification. On March 23, 1977 after hearing, the trial court
awarded custody of the child to Draper . . .; his decree was
reversed by the Court of Special Appeals, Draper v. Draper,
39 Md. App. 73 (1978); and on April 14, 1978, the trial court . . .
awarded custody of the child to Marlene with reasonable rights of
visitation to Draper. The matter thus came full circle.
I find as a fact that on May 14, 1976, Respondent knew of the
Decree. Aside from the fact that Draper sent it to him in April,
1976 when he paid Respondent his fee, the petition for
modification prepared, drawn and filed by Respondent, “moves
that this court modify its Decree concerning child custody,” says
the parties were divorced by “Decree . . . dated January 7, 1975”
and prays the court to modify “its” Decree. Although Respondent
seemingly denied seeing the decree till he gave his deposition
(in the instant case in 1979), he acknowledged that “this was
besides the point, because my notes show that the wife had
custody” and “that would sort of indicate that Mr. Draper would
very well have given me those papers, but at any rate, I was
accurate that Mr. Draper’s wife had custody.”
I find as a fact that in August, 1976, Respondent did suggest
to his client, in flat violation of the Decree, that he (Draper)
physically take the child from the Syracuse residence where she
was living with her mother; that it was Respondent’s and not
Draper’s suggestion; that Respondent told Draper to not make it
look like a breaking and entering but just to get the child; that
if it was successful, “we” might get a faster response from the
court and it would show good concern on Draper’s part; and that
Respondent told Draper not to say anything to anybody about it. I
find further that the idea of taking [Marlene’s estranged
husband] and the two men was Draper’s, not Respondent’s (but that
Draper’s idea emanated directly from Respondent’s suggestion that
Page 397
Draper not break in. Thus Draper took Marlene’s estranged husband
to trick her into opening the door).
At first, Respondent denied that he had advised Draper between
April, 1976 and August 21, 1976 that he should “retrieve” the
child then in Marlene’s custody as per the Decree ((i) “False.
The Respondent does not remember using any such quoted
imprecation to Mr. Draper . . .”). However, he later shifted
ground, admitting he had used the word “retrieve.”
I find as a fact that Respondent testified before the Inquiry
Panel on January 28, 1978 as follows:
1. “. . . when you have performed a child snatch, as
any number of my clients, on my advice, have done .
. .”
2. “. . . Now we had that hearing and then — oh,
before that I had planned carefully with Mr. Draper
just how he was to retrieve the child. Well, first
of all, whether to retrieve the child and the
answer to that was clear. And we planned how to
retrieve the child.”
3. “I think I did more than he realizes. There was
the pre-planning, there was the snatch, there was
this first hearing.”
Despite the Respondent’s protestations that when he said
“retrieve” what he really meant was to legally retrieve, his
testimony is fatuous and entirely unconvincing. He testified that
in his view, retrieval means:
“the legal plan, the pleadings that would be filed,
the setting of having the case brought promptly
before a judge, also the legal possession that would
be established that Mr. Draper, having a right to
reasonable visitation, which has been denied him, had
a right also. This legal position is what was
carefully planned on retrieving the child, that is,
retrieving the child back into his court ordered
custody is what I’m talking about. I’m talking about
getting the child ordered by the court in a decree to
be turned over to the custody of Mr. Draper.”
Page 398
He testified further that:
“I was planning with him, and preparing myself, for
the legal position that since he had the right to
reasonable visitation and since the child was being
held with a promiscuous mother, living in the same
[home] with an alleged felon, that for him to ask to
take the child back from here for his visitation is
one thing he could have done, that was part of the
planning . . . Another part of the planning was to
try to get an immediate court order concerning return
of the child.”
However, it is clear that a commonsense view of Respondent’s
(Inquiry Panel) use of the word “retrieve” is that he meant to
physically take the child. Aside from common sense, Respondent
(himself) invariably uses the word “retrieve” to mean take:
1. “I’ll have to ask the court to bear with me. I’d
been here about ten minutes early, and at that time
was unable to retrieve my files.”
2. “Did I throw them in the waste basket? Have I
retrieved them from the garbage dump or what?”
(Respondent is the questioner).
3. “Q. How were they brushed aside physically, you
tell us.
“A. You put your hand out and pushed them aside.
“Q. Where did I push them to?
“A. It would have been over in front of me or over
towards the center of the table.
“Q. Did I then use those notes later in the trial
or not?
“A. I don’t believe so. You may have. I don’t
believe you used those in the way I’m talking
about.
“Q. Did you retrieve them?
“A. Did I what?
Page 399
“Q. Retrieve them?
“A. Oh. Thank you. No sir. You retrieved them. You
showed them in court.” (Respondent is the
questioner).
4. “He goes and retrieves his child . . .”
5. “Just that at the time the child was retrieved . .
.”
6. “Yesterday evening I went down to my basement and
was able to retrieve a file.”
7. In his deposition, he testified that “Draper has
been on the risk to retrieve the child[*] from
New York” but “explains” that “it was not a careful
and an accurate use of the word.”
His labored and tortured attempts to explain away his earlier
sworn testimony (before the Inquiry Panel) are totally
unconvincing. He refers to a Random House dictionary definition
but must acknowledge that the first definition is “recovered,
regain.” He then twists the word to mean that Draper was trying
[to] retrieve his visitation right. Draper, however, clearly
stated that the purpose of the child snatch was to remove the
child from the bad environment (not visit). . . .
If he meant “retrieve” in the sense of obtaining a valid court
order, he does not explain why there was no hearing before
Draper retrieved the child. As to the petition for immediate
hearing, it was filed after the retrieval thus further negating
Respondent’s motion of legal recovery. Respondent speculates
that the petition could have been dictated before the retrieval
but here too his position is unconvincing. If indeed his
secretary was slow in typing this petition, surely Respondent
would have known when he filed it (September 3, 1976) that the
retrieval had already taken place. Respondent tries to argue that
the petition was sent to Draper for his signature but one wonders
why such a slow
Page 400
process was used if there was such an emergency. I find as a fact
that Respondent knew of the retrieval (on August 21, 1976) at the
time he filed the petition for immediate hearing (September 3,
1976). If Respondent’s legal theory is correct, why would he
not have obtained a signed court order in Maryland awarding
temporary custody to Draper so that the New York authorities
could honor it? In fact, Respondent offered into evidence exactly
such an order but it was never signed by any court because it was
never presented to any court.
Respondent’s visitation theory is totally unsupportable and
totally unconvincing. A non-custodial parent simply cannot take
three men with him and physically grab a child out of her bed
because he feels the custodial parent unfit. If he does so, his
visitation rights may be completely denied. See Friedland v.
Friedland, 174 Cal.App.2d 874 (father told friend “one way or
other we will get the child” and had on several occasions broken
into the custodial mother’s home — visitation denied). Even if
visitation rights are not denied (Anderson v. Martin, 257 S.W.2d 347
(Tex. Civ. App. 1953)) reasonable visitation is not to be
equated with a bald and illegal child snatch.
Respondent is obliged to admit that he advised any number of
his clients to perform child snatches, yet he tried to expiate
his admission by saying he only meant legal child snatches. By
legal, he says he means taking your child before there is a
court order. He acknowledges, however, he made an “unfortunate
choice of words” and he further acknowledges that he is “not
saying that it (child snatch) cannot cover an illegal one.” His
explanation is fanciful and absurd. He is hoist by his own
petard.
It is interesting to note that when Draper testified at the
March 23, 1977 hearing as to why he snatched the child, he
testified that he went on Respondent’s advice. Thus Draper’s
exact same version was given before Judge Beardmore at a time
when there was no complaint by him against Respondent, the same
version was given before the Inquiry Panel; and the same version
was given in instant case.
Page 401
Draper’s testimony is entirely consistent and credible as opposed
to the testimony of Respondent — testimony which is riddled with
self-contradiction, inconsistency and illogic. It is further
interesting to note that when Respondent himself alluded to the
fact that his client Draper testified that he (Draper) acted “on
counsel’s advice,” Respondent did not contradict Draper at all.
In fact, he (Respondent), suggested “it was an emergency
situation . . . he (Draper) was doing the right thing.”
On direct examination, Respondent testified that he never
advised a client to child snatch if there is a court order.
However, Bar Counsel produced a former client of Respondent’s
(William Brecka) who testified that when he asked Respondent to
represent him, Respondent told him in December, 1975, he would
have to dismiss his then attorney, have a fee of $850.00 or
$950.00 and “would have to be willing to do anything that was
necessary to get custody of the children.” When Brecka pointblank
asked Respondent what he meant, Respondent replied “I will deny
it if I am asked, but you have to get the children and keep the
children and go as far away as possible and stay away as long as
possible.” When Brecka told Respondent he was going to take the
children to Charleston, South Carolina, Respondent told Brecka
“Don’t tell me, I don’t want to know. Just tell me when you’re
going.” (Brecka did take his three children to South Carolina and
kept them in Charleston for five or six weeks but flew back to
Maryland, the children returning with their mother).
Respondent felt this evidence was inadmissible. However, a
witness may be contradicted on collateral matters that are
relevant to the issue on matters brought out in direct
examination of the witness. See generally 98 C.J.S.
Witnesses, Sec. 633 at 653 [(1957)]. It was Respondent who
first testified on direct examination that he had never advised a
client to child snatch if there was a court order, thus offering
his probity and consistency for the consideration of the trier of
fact. Surely Bar Counsel can try to contradict particularly when
the matter of child snatch and child custody constitute the basic
issue. Cf., Walder v.
Page 402
U.S., 347 U.S. 62 (1954) (on direct examination, defendant said
he had never sold narcotics in his life; in rebuttal, government
allowed to produce officer to testify he had seized heroin from
defendant’s home at unrelated time); see also U.S. v. Epps,
438 F.2d 1192 (4th Cir. 1971); Krider v. Hempftling, 137 S.W.2d 83,
86 (Tex. 1940) (where one party offers evidence in regard to
irrelevant matter, other party may not only inquire about it but
he is entitled to offer evidence otherwise inadmissible).
Brecka also testified that Respondent “would, occasionally step
over the line of from walking that fine line right on the edge of
the truth or truth if you wish to put it that way, stepping over
and stepping back” and “he is basically truthful, with a
reservation that he would not tell you the whole truth and that
he could lie but on balance, he is truthful.” Brecka was a
self-employed building developer. He, other members of FUER and
Respondent went to FUER meetings in Baltimore City, Howard and
Montgomery Counties. The Brecka testimony was admitted solely for
the purpose of credibility and has not been considered
substantively. Finally, the evidence against Respondent is so
overwhelming otherwise, that even if the Brecka testimony were
inadmissible, it would make no difference at all.
Conclusions of Law
This court finds by clear and convincing evidence that
Respondent’s conduct was in violation of Disciplinary Rules 1-102
(A)(1), 1-102(A)(4), 1-102(A)(5) and 1-102(A)(6).
1-102(A)(4)
A lawyer shall not engage in conduct involving dishonesty,
fraud, deceit or misrepresentation.
He practiced a fraud on the court which issued the decree of
January 7, 1975 by suggesting, planning and helping to carry out
an illegal and invalid child snatch in violation of the decree.
He encouraged his client to violate the decree and he filed
pleadings designed to consummate the violation.
Page 403
1-102(A)(5)
A lawyer shall not engage in conduct that is prejudicial to
the administration of justice.
Respondent’s conduct in calculatedly planning the violation of
the decree is obviously conduct prejudicial to the administration
of justice. Illegal child snatching has reached epidemic
proportions (Baltimore Daily Record, February 5, 1980, vol. 184
No. 30 at 1) and conduct such as Respondent’s strikes at the
heart of the administration of justice. Respondent himself is
aware of this (“The purpose of establishing Courts . . . is to
prevent . . . people from engaging in self help. In the old days
before there were courts, people would shoot each other . . .
this is uncivilized.)
1-102(A)(6)
A lawyer shall not engage in any other conduct that adversely
reflects on his fitness to practice law.
Respondent’s conduct quite clearly reflects on his fitness to
practice law. For partisan purposes, he flouts the law. In so
doing, Respondent tramples on the rights of the custodial parent
and brutally deprives her of her child on the mere say-so of the
non-custodial parent. The non-custodial parent — spurred on by
Respondent — takes a young child without affording the custodial
mother a chance to be heard. For her, due process is
non-existent. Respondent also bulldozes the courts whose decrees
are reduced to a nullity by him. Respondent’s mentality leads him
to conclude that “court orders are not holy writ.” While they are
obviously not, they must be obeyed for the clear reason that if
everybody did what Respondent did, chaos would surely ensue.
1-102(A)(1)
A lawyer shall not violate a Disciplinary Rule.
Since the above Disciplinary Rules have clearly been violated,
Respondent has therefore violated above Disciplinary Rule (a
lawyer shall not violate a Disciplinary Rule).
Finally, I find by clear and convincing evidence that
Page 404
Respondent violated Disciplinary Rules 7-102(A)(7) and 7-106(A).
(See [prior] discussion).
THE MALCOMB CASE
Issue One: Did Respondent violate any Disciplinary
Rules by making an agreement with
Malcomb that his representation of
Malcomb would cost $1,000.00 and yet
intended, at the time of the agreement, to
charge an additional fee based on certain
factors, including a successful result?
Findings of Fact
John D. Malcomb (Malcomb) . . . was formerly married to Merle
Burgess (Merle) on July 14, 1963 and two girls were born as a
result: Kirsten, born April 26, 1965 and Heather, born April 13,
1968. In March, 1973, Malcomb and Merle separated and on March
29, 1974, they were absolutely divorced. The Decree provided that
the custody of the children was awarded to Malcomb with the right
to Merle to visit at reasonable times. Their separation agreement
of January 16, 1974 was made a part of the Decree and it stated,
in pertinent part, that Malcomb should have custody of the two it
being agreed that Merle
“is not waiving her right to the custody . . . but
that both . . . feel that it would be to the best
interest of the children at this time if the two
children . . . were in the . . . custody of
(Malcomb). (Merle) reserving the right to take
custody of the two children at such time as her
situation may change and as long as it will be in the
best interest of the children.”.
. . In November, 1974, Malcomb remarried (Kathleen).
In December, 1974, Merle (who had also remarried) had an
attorney write Malcomb that she wanted to regain custody of the
children and Malcomb selected Respondent to represent him.
Respondent wanted a $500.00 retainer which
Page 405
Malcomb sent him. Respondent sent a copy of Respondent’s letter
to Merle’s attorney (a Mr. Pryor) to the effect that Malcomb had
no intention of changing the agreement. Since Kathleen was ill,
Malcomb decided not to continue with the case and Respondent
agreed (to drop the case) and sent a $200.00 refund to Malcomb in
early January, 1975.
In the Fall of 1975, Merle tried to keep the children from
Malcomb who then consulted a different attorney (Richard G.
Bartholomee, Esq.). Over the Thanksgiving holiday of 1975,
Malcomb had let the children visit with Merle but Merle insisted
on keeping Heather contending she was ill (Malcomb did get
Kirsten back). Malcomb became suspicious and called the doctor
who said Heather was not ill. Although Malcomb again consulted
Bartholomee, he did not react adequately, according to Malcomb.
Malcomb then contacted Respondent to represent him to get Heather
back.
The above constitutes undisputed facts. The following paragraph
constitutes Malcomb’s contention (disputed by Respondent).
Respondent said it would be an uphill battle “and it is going to
cost you $1,000.00.” Respondent agreed to accept $500.00 in a few
days, the rest in a couple of months “as long as I paid him the
whole amount before the thing came to court.”
It is undisputed that after Malcomb paid Respondent the
$1,000.00 (received by Respondent on December 16, 1975, February
11, 1976 and April 6, 1976), Respondent’s bookkeeper marked the
deposit “Paid in Full.”
It is undisputed that Respondent then sent Malcomb a copy of a
letter from the court (re trial on April 30, 1976) with a typed
note from Respondent stating, inter alia, that “It would be
appreciated if the balance of my fee [$500.00 bal] could be paid
before trial.” Malcomb then sent the additional money as the
result of receiving that document.
It is undisputed that the April 30, 1976 hearing was reset for
June 8, 1976. On that day, the hearing took place (Judge H. Kemp
MacDaniel presided) and lasted one day. The judge did not reach a
decision that day. Respondent sent Malcomb a $650.00 bill dated
June 23, 1976 marked “Further retainer” received by Malcomb on
the 25th “probably.”
Page 406
Malcomb contends he disagreed with the bill and intended not to
pay it but he felt that with Respondent’s attitude and the
problems he had, “it was best to at least pay a token amount and
then discuss the rest . . . of the fee with him after Judge
MacDaniel had made his final decision.” He paid him $50.00.
It is further undisputed that sometime after June 23, 1976,
Respondent sent to Malcomb a copy of a June 23, 1976 letter from
Respondent to Judge MacDaniel confirming that the hearing set for
July 12, 1976 would be instead on Tuesday, July 20, 1976 . . .
(attached was a note dated June 21, 1976 from the judge stating
that on “June 8, 1976 a hearing on Petition for Modification of
Decree and Petition to return child held sub curia pending
further evaluation by the court. . .)”.
Malcomb contends that because the June 23, 1976 letter had a
note by Respondent asking Malcomb to call him (Respondent), he
attempted to contact Respondent but he was not able to. He waited
several days after the July 20, 1976 hearing date, but didn’t
hear from Respondent. He attempted to call him but was not able
to reach him so he called Merle and asked her if she had heard
anything about the decision. Merle said, “Of course, don’t you
talk to your attorney? The judge gave me custody of Heather and
you keep Kirsten and you pay me $25.00 a week support” (meaning
for Heather). Malcomb also called Merle’s attorney (William
Hammond, Esq.) (Hammond) “because I wanted to get it from a
totally credible source.”
On July 27, 1976, Malcomb and Kathleen saw Respondent at a
meeting of FUER at a church in Baltimore and he contends
Respondent said:
Oh, Mr. Malcomb, I have been meaning to call you,
that I am still working on the case. And I said,
Working on it? I thought it had been settled? He
said, Settled? Nothing is ever settled. It is still
up in the air. It is touch and go. I have been
meeting with the Judge and trying to get it worked
up. You know,
Page 407
Judges are very reluctant to divide custody of
children.
Malcomb contends he was confused and so the next day (July 28,
1976), he called Judge MacDaniel’s office to talk to the judge’s
secretary (to ascertain if a decision had been rendered).
Actually, the judge answered and although he was reluctant to
talk with Malcomb, Malcomb explained the situation and asked one
question, “did you make this decision on the 20th of July and was
this your decision.” The judge told Malcomb “yes.” The next day,
Malcomb called Respondent who told Malcomb he had talked to Judge
MacDaniel that day (July 29, 1976) and the judge told Respondent
that he was ready to sign an order giving Malcomb custody of one
daughter and Merle custody of the other “if I was willing to pay
$25.00 a week support.” Malcomb told Respondent he (Malcomb) had
already agreed to that “as he (Respondent) knew” whereupon
Respondent became very agitated and angry. Malcomb was finally
able to calm Respondent down and after he asked Respondent what
to do, Respondent said he felt $25.00 was outrageous and we ought
to request another full scale hearing to reduce support because
of Merle’s earning capacity. When Malcomb asked Respondent why
Respondent hadn’t contacted Malcomb about the outcome of the
case, Respondent became very belligerent and said, “I never did
like you, you little bastard . . . you are just trying to get out
of paying my fee.” He threatened suit and slammed down the phone.
It is undisputed that Malcomb was quite angry and wrote
Respondent a July 29, 1976 letter pointing out that since
Respondent knew full well that the judge’s ruling (Kirsten to
Malcomb; Heather to Merle; $25.00 per week child support for
Heather to be paid by Malcomb) “was the precise arrangement that
I had been trying to work out for almost a year . . . you knew .
. . I was willing to share the custody with Merle . . . I only
went to court when she tried to take both of the children.”
Malcomb further accused Respondent of a contemptible and brazen
attempt to string him along after Judge MacDaniel had made his
decision on July 20, 1976 and saw no reason to continue “our
relationship.” He
Page 408
informed Respondent that since he had paid Respondent “Your fee
of $1,000.00 (which you quoted to me on the phone and insisted be
paid before the June 8 hearing)” he saw no reason to honor the
“further retainer” of $650.00.
It is further undisputed that the very next day (July 30, 1976)
a letter was sent by Respondent to Judge MacDaniel enclosing a
copy of a proposed Order endorsed “approved as to form.” He
explained that the reason for his “slight delay” was to discuss
with Malcomb the support provision (“to permit him to reflect”
since Respondent found the “fact situation” quite equivocal as to
whether Malcomb had to make any payment for support) and to have
Malcomb’s decision in writing. Respondent told the judge he
understood Malcomb called him (the judge) and suspected he said a
number of “derogatory” things about Respondent. He then stated
that Malcomb “has his own highly personal reason for wishing to
have this order signed in haste and which I do not wish to
discuss further.”
It is Malcomb’s contention that there was no “discussion” as
mentioned in Respondent’s July 30, 1976 letter (except for
Respondent’s mentioning the $25.00); and as to Respondent’s
statement that he “was taking the time to transmit to him and
receive back a communication,” Malcomb testified there were no
communications at all.
The following is undisputed, namely, that Respondent then sent
Malcomb an August 3, 1976 letter stating that although Malcomb
was willing to pay $25.00 per week for Heather’s support,
Respondent felt the requirement to do so to be “entirely
unreasonable and unfair” (because of Merle’s earning capacity of
around $10,000.00 and her husband’s salary). He asked Malcomb to
confirm in writing his acceptance of Judge MacDaniel’s “proffered
ruling.” Two days later, he sent his client, Malcomb, an August
5, 1976 letter stating that the custody case was concluded
“tenuously” (and “custody is always subject to the further
jurisdiction of the court”) because he (Respondent) was highly
surprised that the court awarded Malcomb custody of one child
because of evidence of homosexuality and recent “gay” pornography
photos and Malcomb “having been nude
Page 409
in the bathtub with this child.” (However, Judge MacDaniel did
not seem to view these matters as seriously as Respondent. The
judge said, “There is nothing that the mother of this child
proved against the father that in my opinion makes the father an
unfit person. She brought out a homosexual situation that
happened prior to the time of the marriage and some pictures that
were looked at afterwards, but there is no concrete evidence of
anything that developed into a problem with these children.”)
Respondent warned Malcomb the custody award of one child had to
be “protected very carefully” and therefore his bill for “further
proceedings” was for doing just this including the matter of
child support. He said he did “not believe that $650.00 is an
`excess’ [sic] charge for an attorney to make in seeking to
avoid liability of his client for $13,000 payment” and then
warned Malcomb not to write any “further neurotic letters to the
judge unless you wish to endanger your award of custody.”
Malcomb’s contention was that in the June 8, 1976 custody
hearing before Judge MacDaniel, Merle had raised fully the matter
of homosexuality. He acknowledged such activity but testified it
occurred before his marriage to Merle (in 1962). He denied recent
“gay porno” photos stating he “apparently had gotten on a mailing
list” and received several (postage stamp sized pictures) over a
period of several weeks. As has been seen, it was Respondent —
and not Judge MacDaniel — who viewed these matters so seriously.
One wonders why Respondent made these threats upon his client and
why Respondent felt so threatened.
The following matters are undisputed, namely, that Malcomb had
already paid Respondent $1,000.00 plus $50.00 on the $650.00 bill
but had refused to pay the remaining $600.00. Respondent then
sent Malcomb on August 26, 1976 bill for $1,850.00 listing a
“previous balance” of $600.00 plus another $1,000.00 for
“Additional final fee based on successful result.” There was no
conversation nor discussion between Malcomb and Respondent before
Respondent sent the latter bill and Malcomb did not pay it.
Respondent next sued Malcomb for $1,850.00 in the Towson
Page 410
District Court on October 4, 1976 asking for summary judgment. He
filed an Affidavit that “there is justly due and owing by the
defendant to the plaintiff the sum of $1,850.00” and attached the
August 26, 1976 bill. Respondent then sent Malcomb another bill
dated October 29, 1976 this time for $2,250.00. He listed
$1,250.00 for “additional final fee based on successful result”
and then added another $1,000.00 for “Re-analyzation of file,
further additional fee based on time expended.” At no time, did
Respondent discuss the additional $1,000.00 with Malcomb nor did
Respondent advise Malcomb of the basis for the $1,000.00. Malcomb
did not pay. Respondent then sent Malcomb another bill dated
February 11, 1977 this time for $2,850.00. It was a “Revised and
Corrected Bill” which added $600.00 (“previous balance”). Malcomb
did not pay. Five days later (February 16, 1977), Respondent
filed an Amended Statement of Claim for $4,262.00 alleging an
“implied contract, to pay reasonable charges for legal services
rendered, and such services were rendered according to the
attached plaintiff’s Statement of Claim Exhibit 1.” This Exhibit
consisted of five handwritten pages of alleged work plus the
alleged time for the various alleged items of work (it also
includes the previous billings) (Although Respondent charged
Malcomb for two trial days “at $950.00 per day” it is undisputed
that there was only one trial day). Respondent then sent Malcomb
a March 21, 1977 bill for $4,262.00 marked “Corrected Bill —
Based on `File Analysis’ done in January, 1977.” In April and
May, 1977, Respondent sent “Balance Now Due” bills of $4,262.00
to Malcomb. Malcomb did not pay.
Respondent’s contention was that the $1,000.00 paid by Malcomb
was only a retainer and that when Malcomb was awarded custody of
one child, Respondent sent him a bill for a “modest fee which was
in keeping with my agreement with him, which was, that the prior
payment was a retainer fee and that the total cumulative payment
would be determined at a later date.” As to the “Paid in Full”
bill issued to Malcomb by his (Respondent’s) bookkeeper,
Respondent
Page 411
testified that she had “just about full independence;” that “he
did not supervise the books;” that he had “difficulties about the
wording, of the bills around the time” he was representing
Malcomb; that he told her she must be careful. Thus he contended
that she would use “Paid in Full” for her own “personal
convenience” to refer to any bill with a flat fee or retainer.
He contended that Malcomb initially wrote asking how much would
Respondent require in the way of a retainer and he billed him
first stating “Further Retainer” of $1,000.00.
As to the various fee demands (from $650.00 to $4,262.00),
Respondent claims that the $1,250.00 bill was based on the
“successful result” of the Malcomb case; the $1,850.00 was
Respondent’s “total additional claim”; then “upon review of his
file, however, Respondent realized that his initial billings did
not reflect the value of the actual work performed. Having
decided to sue on a quantum meruit basis, he revised the
estimated value . . . upward by $1,000.00;” the “third additional
bill” was for a “reanalyzation of file, further additional based
on time expended resulting in total additional claim of
$2,250.00;” then, in preparation for the District Court trial (by
then Respondent had sued Malcomb), Respondent estimated he had
done 36.8 hours worth of work (exclusive of trial time) which he
multiplied by $90.00 per hour and added his standard fee for two
days ($950.00 per day) and arrived at his figure of $4,262.00. At
that, Respondent feels he “undervalued” his services.
Respondent put on his wife who testified that Respondent had a
lot of telephone conversations with his clients and she heard him
invariably talk about retainers. It was his habit. (However, he
sometimes charges “flat fees” in custody cases).
I find by clear and convincing evidence that Respondent agreed
with Malcomb to represent Malcomb for $1,000.00 and no more and
that the agreed $1,000.00 was not a retainer. The evidence is
overwhelming. Respondent’s own note to his own file “made at the
time of the initial agreement by Respondent in December, 1975”
states “Fee
Page 412
$1,000.00″ and under that “retainer” and under that “$500.00
down” and under that “rest of it in a month or so.” Although
Respondent tries to minimize his own note (by terming it
“unpunctuated” and by calling Bar Counsel’s interpretation of it
“subjective”), this note coincides with Malcomb’s version
entirely. . . . Moreover, when Respondent advised Malcomb of the
date for trial, Respondent wanted the balance of his fee
“($500.00 balance)” to be “paid before the trial.” He cannot
blame this writing on his secretary because the request for the
“$500.00 balance” was his own dictation with his own initials
(“L.K.”). Again this coincides exactly with the testimony of
Malcomb. Respondent’s February 18, 1976 bill to Malcomb indicates
“Balance Now Due . . . $500.00” and his March 18, 1976 bill also
indicates “Prior Balance $500.00 Paid February 11, 1976 $50.00
Balance $450.00.”
Malcomb’s testimony was straightforward and consistent whereas
Respondent’s was variously evasive, inconsistent and misleading.
The escalation of fees by Respondent was incredible. He was quick
to charge Malcomb an additional $650.00 fee two weeks after the
June 8, 1976 hearing but — when Malcomb would not pay it, he
increased his bill to $1,250.00; then $1,850.00; then $2,250.00;
then $2,850.00 and finally $4,262.00.
His excuses were farcical. He sued Malcomb in District Court
and filed an Affidavit certifying that $1,850.00 was the sum
owed by Malcomb. Yet he later sent a higher bill for $2,250.00
claiming “reanalyzation of file.” One would assume that when an
experienced attorney of thirty years of practice sues his client
for a fee that the attorney would at least know how to sue for
the right amount. Respondent claims he did not sue too many of
his clients so the normal thing for him to have done, would have
been to analyze his file carefully before suit and then insert
the proper amount. However, despite the fact that his previous
affidavit certified that the sum for which he sued was “justly
due and owing”, he then further amended it up to $4,262.00.
When Respondent sued Malcomb for the $4,262.00, he purported to
inform the court of the basis for that ($4,262.00)
Page 413
figure by attaching a “File Analysis.” This analysis listed,
inter alia, “two trial days at $950.00 per day — $1,900.00.”
However, at the District Court, when Respondent saw that
Malcomb’s attorney had produced the attorney (Hammond) who had
opposed him (Respondent) at the trial in question (on June 8,
1976), as a potential witness, Respondent then admitted the trial
took only one day. (Malcomb testified that although Respondent
listed a number of conferences, there was only one and
Respondent’s updated entries did not agree with his records and
“I felt he was billing me . . . for other work that he didn’t
do.”) Respondent’s testimony about his “work” is spotty and
vague.
It is undisputed that Respondent never discussed any of his
escalating bills with Malcomb beginning with the $650.00 bill. He
simply sent them to Malcomb. As to Respondent’s August 26, 1976
bill of $1,250.00 (“Additional final fee based on successful
result,”) if the July 20, 1976 conference (at 2:00 P.M.) with
Judge MacDaniel left matters so up in the air as Respondent
contended (“subject to all sorts of wavering winds of change . .
. open at that time, was the question of whether Malcomb should
pay support, it was still open to contest”), why would Respondent
charge Malcomb an additional fee for “successful result?”
According to Respondent, he felt that the July 20, 1976 decision
reached by Judge MacDaniel (requiring Malcomb to pay $25.00 per
week as support for Heather) was “unreasonable and unfair” and
felt it would be “preferable to have a formal hearing.”
Obviously, in Respondent’s mind, this could not be called a
“successful result” under such unfair circumstances even if
Malcomb did retain Kirsten (whom he had before Respondent came to
represent him).
Respondent further attempted to justify the $650.00 fee which
he said was not excessive when the arithmetic of it was
considered (meaning Respondent’s theory of a total dollar saving
of $13,000.00 to Malcomb). However, this attitude was at best a
naive and forlorn appeal to (by then) a totally disenchanted
client and at worst a crude and dishonest effort to bulldoze
Malcomb into submission. (The only way Malcomb could save
$13,000.00 was to pay nothing
Page 414
for the support of Heather — something he never wanted to do.) He
was perfectly content to pay this weekly sum for his child’s
support (as he had been doing before he consulted Respondent)
as he told Respondent on a number of occasions. Respondent was
aware of this. Despite Merle’s earning capacity (she was not
then employed) and marriage, it was decidedly unrealistic to
expect any court to not require a father (earning near $22,000.00
per year — as per Malcomb’s answer three to Merle’s interrogatory
— as prepared by Respondent) to pay something for the support
of his child.
If the $1,250.00 bill was extortionate, the succeeding bills
were even more so. There was no pretense at justification —
simply a bald transmittal of ever-increasing dollar figures. No
warning was given Malcomb; no conferences held; no attempt to
itemize was made (except for the last bill in excess of $4,000.00
— which contained a major “error”). There is no evidence from
Respondent whatever as to guidelines or standards for future
bills except Respondent’s testimony that “the total cumulative
payment be determined at a future date.” Malcomb was totally at
Respondent’s mercy. Respondent’s mercy can be brutal and
ruthless.
Respondent tried to exploit the fact that Malcomb accommodated
Merle when she “backdated” their separation agreement one month.
This was mendacious conduct on Malcomb’s part and Respondent
excoriated Malcomb. However, by the same token, Respondent too
knew that the March 29, 1974 agreement was based upon a
fraudulent date and he too did the same thing as Malcomb — he
kept quiet. His testimony concerning this inaction is evasive and
unconvincing. Apart from this, I find Malcomb’s testimony
truthful and credible. I believe him when he denied receiving any
January 16, 1976 bill (“Further Retainer”). While I did not find
Draper’s denial [in the matter of his complaint against
Kerpelman] (that he had received Respondent’s June 23, 1976 bill)
sufficient to overcome the presumption that he did receive it,
that finding was based on the fact that the denial was by way of
discovery in California
Page 415
and Draper was not then present in Maryland to be viewed and
questioned. In addition, there was some suggestion that Draper
was under the influence of a drug, compare U.S. v. Van
Meerbeke, 548 F.2d 415 (2d Cir. 1976) (defendant ingested opium
in court — judge admonished for inaction). Here Malcomb was in
court, he underwent a blistering and humiliating
cross-examination by Respondent and maintained his composure and
credibility.
I find by clear and convincing evidence that one of the prime
motivations for Respondent’s unwarranted, improper and unfair
billing was anger. He testified before the Inquiry Panel that “I
will show that client (Malcomb) who had filed this complaint
against me, he can’t get away with that and then I increased the
ad damnum,” he testified he didn’t like Malcomb (he is
“universally disliked”); and “probably that I was angry at him.”
Anger should not be the basis for charging a fee to a client (nor
the basis for a lawsuit against a former client). (Respondent was
also inconsistent as when he asserted that “fee disagreements”
should be settled by “impartial referees” and yet turns around
and sues both Malcomb and Draper without any attempt at
arbitration.)
In numerous respects, Respondent testified in an inconsistent
and inaccurate manner. He called the Malcomb case a “junk case”
but then realizing the danger of alluding to a custody case
involving young children that way (to say nothing of charging
$1,000.00 for a “junk case”), he quickly denied it was a junk
case; he testified that one of the children testified as to the
so-called nude bathing incident in court but this was not so and,
in fact, the children were not even in court; he told Malcomb
the decision of Judge MacDaniel was “entirely unreasonable and
unfair” and suggested there should be a formal hearing as to
child support but he told Judge MacDaniel that his decision
(the judge’s) was “entirely correct . . . aside from the support
question which is, however, a relatively minor matter in the
overall case, and, of course, a matter to which gentlemen may
honestly differ”; he told Judge MacDaniel (by letter dated July
30, 1976) that the reason for his “slight delay” (in not sending
Judge MacDaniel the proposed order) was “in order to have
Page 416
(Malcomb’s) decision in writing, I was taking the time to
transmit to him and receive back the communications indicating he
agreed with the support provision” whereas his letter to Malcomb
asking for the written confirmation is dated later on August 3,
1976; and asserted that he had “purposely refrained from claiming
that privilege (Fifth Amendment) . . . in his deposition” when he
did so claim it as to his deposition (“I received a notice of
deposition . . . and on the basis of Spevack v. Klein . . . I
refused to be sworn . . . on the basis of the Fifth Amendment.”).
Conclusions of Law
1-102(A)(4)
A lawyer shall not engage in conduct involving dishonesty,
fraud, deceit or misrepresentation.
I find the following by clear and convincing evidence: that
Respondent represented to Malcomb that his total fee for his
representation in the custody case would be $1,000.00 and no more
but that in violation of his agreement, he charged (or attempted
to charge) Malcomb fees over the agreed upon amount; that
Respondent made a wilful misrepresentation to Malcomb as to his
(Respondent’s) fee; that Respondent maliciously and improperly
escalated fee charges to Malcomb without any basis, without any
agreement, without any warning; and without the escalated charges
bearing any relationship to the amount of work done. Thus he has
violated the above Disciplinary Rule.
As to Respondent’s doing nothing to either advise Malcomb or
the court of Malcomb’s knowing acquiescence in Merle’s backdating
of their separation agreement, I am not convinced by clear and
convincing evidence that Respondent furthered a fraud on the
court.
Page 417
1-102(A)(5)
A lawyer shall not engage in conduct that is prejudicial to
the administration of justice.
I find by clear and convincing evidence that Respondent did
improperly and consciously attempt to obtain legal fees from
Malcomb; and did utilize the court system to knowingly and
improperly attempt to obtain legal fees from Malcomb. Therefore,
he has violated the above Disciplinary Rule since such condition
is clearly prejudicial to the administration of justice.
Respondent’s conduct is inimical to justice.
1-102(A)(6)
A lawyer shall not engage in any other conduct that adversely
reflects on his fitness to practice law.
I find by clear and convincing evidence that Respondent
violated the above Disciplinary Rule by improperly attempting to
obtain legal fees from Malcomb and by utilizing the court system
knowingly and improperly to obtain unwarranted legal fees from
Malcomb.
1-102(A)(1)
A lawyer shall not violate a Disciplinary Rule.
Because I have found by clear and convincing evidence that
Respondent has violated above first three Disciplinary Rules, I
find by clear and convincing evidence that Respondent has
violated Disciplinary Rule 1-102(A)(1).
Issue Two: Did Respondent violate any Disciplinary
Rules by misrepresenting
to Malcomb that his case was not yet
resolved in the judge’s mind (and could
not have been) until the August 9, 1976
decree was signed and that he
Page 418
(Respondent) was working on the case
(from July 20, 1976 on) when in fact, the
judge’s ruling was made on July 20,
1976, and the only matter remaining
was the drafting and approval of the
court-directed order; and Respondent
was not working on Malcomb’s case
but rather trying to give the
appearance of work in order to exact
improper fees from Malcomb?
Findings of Fact
The facts as found in Issue One . . . are also found as to this
Issue.
Judge MacDaniel testified that he did “recall the case” and
that the hearing date (as reflected from the file) was June 8,
1976. “Hearing and testimony was taken.” He made a decision “when
the case was over, that day.” (June 8, 1976). The decision was
“in accordance with the Decree that ended up being signed” (the
August 9, 1976 decree awarding Heather to Merle; Kirsten to
Malcomb; and requiring Malcomb to pay $25.00 per week as child
support for Heather). He was requested by one of the attorneys to
wait a period of time and allow the attorneys to come back and
argue “or further discuss the case with me and I believe we even
set a firm date . . . for them to come back. Whatever date that
was I believe they did come in and I told them that, what my
decision was, and told Mr. Hammond, I believe, to prepare a
Decree, submit it to Mr. Kerpelman for approval as to form and
then to the court and that I would sign it.” He testified it was
on July 20, 1976 and it was not a hearing but “just a kind of
argument.” He testified that he did receive a call from Malcomb
and at first, refused to talk to him until he was “informed that
he (Malcomb) only wanted to know when I was going to make up my
mind and I then did talk to him . . . and I told him that I had
made it up and . . . I was only waiting for the attorneys to send
in the Decree so I could sign it.” The judge testified that the
reason he talked to
Page 419
Malcomb was “. . . his comment was that I hadn’t made a decision
and I felt if I told him the decision had been made, that maybe
he would go to his attorney or the other one and get the Decree
in to me so I could sign it.”
He had no recollection at all as to the matter of support in
the July 20, 1976 conference. He testified that between July 20,
1976 and the time he received the Order to be signed, he “had no
contacts with Respondent that he knew of.”
Hammond testified that at the half hour conference on July 20,
1976, Respondent was upset at Judge MacDaniel’s indication that
he was going to award child support for Heather; that Judge
MacDaniel asked me “to prepare an order commensurate with his
decision;” that he did so and sent the proposed order to
Respondent on July 22, 1976 for consent as to form (“if there are
any questions, please so advise”); that Judge MacDaniel was firm
in his July 20, 1976 position (Heather to Merle; Kirsten to
Malcomb; $25.00 child support for Heather) and “that was his
decision whether Mr. Malcomb agreed to it or whether he didn’t,
that was his decision;” that Respondent sent him a “temporary
order” on July 1, 1976 which he (Hammond) refused to accept; and
that from July 20, 1976 on (to the District Court case November
4, 1977), he had no other conversations with Respondent with
regard to the case.
It is Malcomb’s contention that the judge had clearly made a
decision on July 20, 1976 and that Respondent knew it but tried
to convince Malcomb that the matter was still unresolved. He and
his wife Kathleen testified that they met Respondent at a FUER
meeting on July 27, 1976 and Respondent told him he “was still
working on the case” and that it was not settled. “Nothing is
ever settled. It is still up in the air. It is touch and go. I
have been meeting with the judge and trying to get it worked up.
You know, judges are very reluctant to divide custody of
children.” It was also Malcomb’s contention that divided custody
was very much what he (Malcomb) wanted; that he was perfectly
content to pay weekly child support of $25.00 for Heather; and
that he had told this to Respondent repeatedly. Malcomb contended
that when he discovered Respondent’s brazen attempt to
Page 420
string him along, he terminated his relationship with Respondent.
It is Respondent’s contention that the order was not effective
until it was signed; that despite Malcomb’s willingness to pay
child support, he was trying to convince him (Malcomb) not to
accept the prepared order as to child support because of Merle’s
earning capacity and her marriage; that there was no such July
27, 1976 conversation with Malcomb at the FUER meeting; that
despite Malcomb’s having custody of Kirsten, this was not secure
(because of Malcomb’s past homosexuality); that he promptly
informed Malcomb of the outcome of the July 20, 1976 hearing and
that Malcomb considered the option (of contesting the award of
support) for at least a week.
I find by clear and convincing evidence that Respondent
deliberately withheld from Malcomb the decision of Judge
MacDaniel on July 20, 1976; that he only submitted the proposed
order to Judge MacDaniel on July 30, 1976 when he realized that
Malcomb had found out about Judge MacDaniel’s decision reached on
July 20, 1976; and that he deliberately withheld the judge’s
decision in order to make it appear to Malcomb that he
(Respondent) was still working on Malcomb’s case in order to
justify his “further” (and improper) fee.
Again, the evidence is overwhelming. I find as fact the
following undisputed chronology of events:
1. June 8, 1976 — It is undisputed that there was a hearing
on this date; and that the judge stated at the end that the
attorneys should let the situation remain status quo (Heather to
stay with Merle; Kirsten to stay with Malcomb); that the
attorneys should return in two weeks and at that time, he would
make a determination; that Malcomb should pay child support for
Heather; and that he had made his decision (Heather to Merle;
Kirsten to Malcomb and Malcomb pay $25.00 per week child support
for Heather) on June 8, 1976. . . .
2. June 23, 1976 — Respondent bills Malcomb $650.00 for
“Further retainer.”
Page 421
3. July 1, 1976 — Respondent sends proposed Temporary Order
to Hammond (Heather to temporarily remain in custody of Merle;
Kirsten to temporarily remain in custody of Malcomb; support
shall continue with payments to be made as heretofore). (Malcomb
had been paying $25.00 per week for Heather’s support).
4. July 20, 1976 — Conference between Respondent, Hammond and
Judge MacDaniel. The judge reaffirmed his previously reached
decision and directed Hammond to prepare an order accordingly. He
was firm despite Respondent’s being upset about Malcomb being
required to pay child support for Heather. . . .
5. July 22, 1976 (Thursday) — Hammond sent proposed order to
Respondent and Respondent “probably” received it on July 23,
1976.
6. July 22, 1976 — Malcomb called Merle and Hammond . . . and
ascertained that he (Malcomb) was to have custody of Kirsten and
pay $25.00 child support for Heather; and Merle was to have
custody of Heather.
7. July 27, 1976 — Respondent tells Malcomb the case is still
not settled; it is still up in the air; judges don’t like divided
custody . . . (while this matter is disputed, I find as a fact
that it occurred).
8. July 28, 1976 — Malcomb called Judge MacDaniel and
ascertained same thing and also that the judge had made his
decision on July 20, 1976.
9. July 28, 1976 — Malcomb confronted Respondent with the
above by telephone.
10. July 28, 1976 — Respondent wrote Hammond he’ll return the
order as soon as he has had the opportunity to go over one or two
matters with Malcomb.
11. July 29, 1976 — Malcomb sent letter of termination to
Respondent as result of Respondent’s “brazen attempt to string me
along after Judge MacDaniel had made his decision on July
20th.”
12. July 30, 1976 — Respondent sent proposed order to Judge
MacDaniel (and signed it).
Page 422
13. August 3, 1976 — Respondent sent letter asking Malcomb to
confirm in writing his consent to the child support requirement.
14. August 5, 1976 — Respondent wrote Malcomb that the
custody case is concluded “tenuously.”
15. August 9, 1976 — Judge MacDaniel signed order.
Malcomb’s version is entirely credible; Respondent’s is not. It
is that simple. If Respondent promptly informed Malcomb of the
outcome of the July 20, 1976 hearing, as Respondent says, then
why would Malcomb call Merle? Or Hammond? Or Judge MacDaniel?
Respondent offers no corroboration as to his “promptly”
informing Malcomb whereas Judge MacDaniel testified that
Malcomb did phone him and what is more, his (Judge MacDaniel’s)
version of the conversation is exactly the same as Malcomb’s.
Aside from corroboration, why would Malcomb want to call these
people if Respondent had really told him about the proposed
order. The decision was exactly what Malcomb wanted!
As to Merle having custody of Heather and Malcomb having
custody of Kirsten, Respondent knew that was what Malcomb
wanted. In fact, Respondent had written on January 7, 1976,
suggesting divided custody on behalf of Malcomb. As to
supporting Heather, Malcomb had been paying the weekly sum of
$25.00 for Heather’s support even before he consulted
Respondent and he told Respondent he was quite content to
continue to do so (his income was as follows: 1971 — $16,003.30;
1972 — $15,224.03; 1973 — $21,052.41 and 1974 — $21,707.43).
Respondent admits he probably received the proposed order
from Hammond on July 23, 1976. So he had it in his possession
from July 23, 1976 to July 30, 1976 (when he mailed the agreed
upon order to Judge MacDaniel). Even before he received the
proposed order from Hammond, he knew Judge MacDaniel’s decision
(having been informed of it at the July 20, 1976 conference). If
he promptly advised Malcomb of that decision and if, as has been
seen, the decision was precisely what Malcomb wanted, why would
Malcomb write a letter of outrage to Respondent? Although
Page 423
Respondent claims Malcomb was trying to avoid paying the $650.00
fee, I find conclusively that Malcomb was genuinely outraged and
did not desire to bilk Respondent out of his fee. Malcomb had
paid the $1,000.00 fee set by Respondent in accordance with
Respondent’s direction but when Respondent sent a bill contrary
to their agreement, Malcomb balked and understandably so.
More to the point is that the actual decision was reached not
on July 20, 1976 but on June 8, 1976. Judge MacDaniel testified
that he reached the decision on June 8, 1976, repeated it on
July 20, 1976 and ultimately signed an order embodying the same
decision on August 9, 1976. While Respondent attempts to avoid
the implications of this basic fact by a legal argument (that the
decision did not become final until signed), that is beside the
point. From a fact finding viewpoint, Malcomb’s actions make
sense, are consistent and are credible.
Respondent claims he not only promptly advised Malcomb to
contest the oncoming child support order but requested that
Malcomb consider this “option for at least a week before taking
any action.” But as seen before, why should Malcomb contest
something that he favored? More interesting is the fact that
Respondent had to explain why he kept the proposed order received
by him for this one week (from July 23, 1976 to July 30, 1976).
Respondent had to explain away that week. Respondent’s claim that
Malcomb was pondering and considering the simple matter of
whether or not to support his child is simply not credible.
I find Malcomb’s behavior consistent. Respondent’s behavior,
however, is not. If, as Respondent contended, he truly felt that
Judge MacDaniel’s proposed order was so “unreasonable and
unfair,” how does he explain the fact that from June 8, 1976 to
August 9, 1976, he did absolutely nothing about it? He wrote no
letters to Judge MacDaniel (nor to Hammond); he filed no motions
and asked for no hearings. There was absolutely no conduct on
his part to evidence such displeasure with the support phase of
the upcoming order. On the contrary, he wrote Judge MacDaniel
calling the support question “a relatively minor matter in
Page 424
the overall case” and that gentlemen could differ. Even before
the July 20, 1976 conference, the objective conduct of Respondent
is consistent only with acquiescence in the support situation.
Malcomb had been paying $25.00 per week for Heather’s support,
and on July 1, 1976, Respondent sent to Hammond a proposed
temporary order (prepared by Respondent) proposing child
support “as heretofore.” Respondent tries to avoid the
implications of his action by asserting a difference between
temporary and permanent child support. Here again, this is beside
the point. The question is what is the totality of the factual
situation to a factfinder.
Respondent sent a $650.00 bill for “further retainer” on June
23, 1976. The word “retainer” is significant. If future work
really had to be done, then the $650.00 bill would be justified
at least in the sense of a fair bargain (work for money). But if
there was no work to be done, then the bill would be totally
unjustified. I find that there remained no substantial work to be
done after July 20, 1976 and if there were, none was ever
performed by Respondent. I find further (all by clear and
convincing evidence) that Respondent deliberately intended to
give Malcomb the impression that he (Respondent) was obliged to
perform work on Malcomb’s case when, in actuality, there was no
work to be performed.
Conclusions of Law
1-102(A)(4)
A lawyer shall not engage in conduct involving dishonesty,
fraud, deceit or misrepresentation.
I conclude by clear and convincing evidence that Respondent
deliberately misrepresented to Malcomb that there remained work
to be done on his (Malcomb’s) case and that he (Respondent) was
actually engaged in performing such work, whereas, after July 20,
1976, there remained no work to be done and Respondent, in fact,
performed no work and that this misrepresentation was made to
justify an improper fee. I therefore find that he violated the
above Disciplinary Rule.
Page 425
1-102(A)(6)
A lawyer shall not engage in any other conduct that
adversely reflects on his fitness to practice law.
I conclude by clear and convincing evidence that the aforesaid
deliberate misrepresentations by Respondent constitute clear
conduct that adversely reflects on his fitness to practice law.
In addition, Respondent deliberately misrepresented to Judge
MacDaniel in his July 30, 1976 letter that his delay in
transmitting the proposed order was caused by his desire to have
Malcomb’s written agreement as to the child support provision
(and to have Malcomb have enough time to be certain) whereas in
fact Malcomb had not communicated his written agreement at the
time Respondent sent the July 30, 1976 letter (nor after); and
there was no need for Malcomb to so agree in writing since at all
times Malcomb had agreed and Respondent knew it.
Issue Three: Did Respondent violate DR
2-110(A)(2) by improperly withholding
Malcomb’s papers and the decree after
being discharged by Malcomb; and by
continuing to deal with Judge
MacDaniel after he was discharged?
I find no clear and convincing evidence that Respondent
violated this Disciplinary Rule.
Issue Four: Did Respondent violate DR 6-101(A)(2)
by lack of adequate preparation in that
he conducted no discovery,
interviewed no witnesses before trial,
called witnesses who were of little or
no probative value, failed to call
witnesses who were of probative value
and generally displayed no knowledge
of the facts surrounding the Malcomb
case?
The facts as found in Issues One and Two . . . are also found
as to this Issue.
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Bar Counsel asserts that Malcomb “wanted” both children —
meaning custody of both. I do not agree. While Malcomb may have
wanted custody of both at an earlier time, his final and steady
decision was to obtain custody of Kirsten alone allowing Merle to
have custody of Heather.
Findings of Fact
The trial in question took place on June 8, 1976. It arose as
the result of Merle’s filing of a petition to modify the March
29, 1974 decree (which granted custody of both children to
Malcomb). Malcomb’s then attorney (Bartholomee) filed Malcomb’s
answer to said petition and also filed written interrogatories
upon Merle. She filed her answer and also filed written
interrogatories upon Malcomb. By this time, Respondent had
replaced Bartholomee. Respondent filed a petition for “Immediate
Return of Child” (Heather) and obtained a Show Cause Order
(December 17, 1975). He also filed answers to Merle’s
interrogatories. (December 23, 1975). Respondent then issued a
summons for witnesses (Malcomb’s wife, Kathleen, Dr. Jane Mason,
Sarah Fischer and Janet Slutter) together with subpoena duces
tecum for Drs. G.P. Patton, Jane W. Mason, Harvey L. Saxton and
Santiago Garza.
The trial took one day. Merle produced five witnesses and
Respondent produced five also (including Merle as an adverse
party). While Respondent filed no interrogatories, his
predecessor (Bartholomee) did. Merle’s answers provided the names
of certain witnesses but Respondent never deposed nor interviewed
them (except that he did summon Dr. Jane Mason, one of the
witnesses listed in Merle’s answers to interrogatories).
Prior to trial, Respondent did have one “formal interview” with
Malcomb but he never interviewed any of Malcomb’s witnesses until
the day of trial. Nor did he depose anyone. This subjected him
(Respondent) and his client to the same type of infirmities as
mentioned previously. . . .
Respondent did hire one Mary Slicher (private social worker) to
investigate. Bar Counsel feels that Respondent
Page 427
failed to note the contents of her report as concerns Mr. and
Mrs. Grabus which, Bar Counsel feels, adversely affected Malcomb.
Yet paradoxically Bar Counsel downplays Ms. Slicher noting that
Judge MacDaniel did not allow her to testify as an expert (“not
to her experience but just observations”) nor “was her report
admitted into evidence.”
What Bar Counsel perceives as inadequacy may well be trial
tactics. For this reason and for the reasons outlined
[previously], I do not find that Respondent violated DR
6-101(A)(2).
Page 428
