ATTORNEY GRIEV. COMM'N OF MARYLAND v. Ficker

ADKINS, Judge. The Attorney Grievance Commission (AGC), acting through Bar Counsel, charged Robin K.A. Ficker (Ficker) with violations of the Code of Professional Responsibility (for acts that occurred on or before 31 December 1986) and of the Rules of Professional Conduct (for acts that occurred ³⁰⁷ thereafter). 1 Pursuant to Maryland Rule BV9 b, we referred the matter to Judge Peter Messitte of the Circuit Court for Montgomery County to make findings of fact and conclusions of law. The charges against Ficker related to three sets of circumstances, the first involving Angela A. Daley, the second Lewis Keith Wilcom, and the third an advertisement Ficker had placed soliciting “palimony” cases. Judge Messitte held an evidentiary hearing.

In the Daley matter he found that Ficker had in two respects neglected a legal matter in violation of DR 6-101(A)(3), Code of Professional Responsibility, and that he had engaged in conduct prejudicial to the administration of justice in violation of DR 1-102(A)(5). In the Wilcom case, Judge Messitte again found Ficker guilty of neglect and conduct prejudicial to the administration of justice under the Code. In addition, the judge concluded that Ficker had “habitually” violated a rule of court, thereby also violating DR 7-106(C)(7). Additionally, Judge Messitte found violations of Rule of Professional Conduct 1.3 (diligence).

With respect to the “palimony” matter, Judge Messitte held that the AGC had failed to establish by clear and convincing evidence that the advertisement was misleading in violation of Rule 7.1, Rules of Professional Conduct. 2 Ficker excepts to Judge Messitte’s findings of fact, conclusions of law, and recommendations in the Daley matter. ³⁰⁸ The AGC excepts to the factual findings and legal conclusions that lead to Judge Messitte’s holding that Ficker did not violate Rule 7.1. No one excepts to the findings or conclusions in the Wilcom case. We shall summarize them, nevertheless, since they must be considered when we determine the appropriate sanctions for Ficker’s conduct. And because of some factual similarities, we discuss the Daley and Wilcom cases together.

We shall reject Ficker’s exceptions as well as those advanced by the AGC. I. Daley and Wilcom Ficker encountered Angela Daley and Lewis Wilcom in 1986, in separate cases. Ficker had been practicing law since 1973 and in 1986 was a sole practitioner with an office in Bethesda, Montgomery County. He employed one full-time clerk with no legal training.

He maintained no formal “diary” or “tickler” system. His only schedule of clients’ court dates was a large desk calendar upon which he endeavored to make appropriate entries. His practice “consisted primarily of the representation of clients charged with drinking and driving offenses” and Daley and Wilcom each retained him in connection with drinking and driving charges. A. Angela Daley Daley, a resident of Johnstown, Pennsylvania, was charged with violation of § 21-902 of the Transportation Article, Maryland Code (1988 Repl.Vol., 1989 Cum.Supp.) (driving while intoxicated or under the influence of alcohol), and with a related offense.

She was to appear for trial in the District Court of Maryland sitting in Frederick County at 9:00 a.m. on 4 December 1986. On 30 October 1986 Daley met with Ficker in his office. She retained him to represent her and paid $200 on account of his $599 fee. Ficker agreed to appear on the 4 December trial date.

But he failed to enter the trial date on his desk ³⁰⁹ calendar. He also failed to enter his appearance in the District Court as required by Md. Rule 4-214(a). 3 On 4 December Daley travelled from her Pennsylvania residence to Frederick and awaited the docket call in District Court. Ficker never appeared. He later explained that he had simply forgotten about his commitment to be there on Daley’s behalf.

No one attempted to contact Ficker. Daley’s case was continued until the afternoon, at which time she pleaded guilty, was fined $250, and placed on probation before judgment. That disposition, the AGC and Ficker agree, was reasonable under the circumstances. The next day Daley phoned Ficker and told him what had occurred.

He apologized and immediately refunded the $200 retainer. B. Lewis Wilcom Like Daley, Wilcom was charged with a violation of § 21-902 of the Transportation Article. Wilcom’s trial was also to be held in the District Court in Frederick County. The trial date was 23 December 1986.

On 9 December 1986 Wilcom and his mother met with Ficker and retained the lawyer to appear on Wilcom’s behalf for a fee of $599. This time Ficker entered the trial date on the desk calendar. But he again violated Rule 4-214(a) by failing to enter his appearance. On 23 December both Wilcom and Ficker were in Frederick.

The former was in the courtroom and was unaware that the latter was nearby. Ficker was in the hallway searching for the arresting officer. When Wilcom’s case was called, it was continued, at the State’s request, because the arresting officer was not on hand. The new trial date was 3 March 1987. ³¹⁰ Ficker and Wilcom never made contact on 23 December.

But Ficker testified that on that date, he did enter his appearance on behalf of Wilcom. Judge Messitte found that the docket entries in Wilcom’s case did not show the entry of Ficker’s appearance on 23 December or at any other time. On 3 March 1987 Wilcom appeared in court, but Ficker did not. Because the court records did not show his appearance, he had not been notified of the 3 March trial date.

Wilcom explained that Ficker was representing him, and the court granted a continuance to 24 June 1987. Ficker had actual notice of the 24 June date; Wilcom’s mother told him about it. But despite that, Ficker undertook to appear for another client in the Circuit Court for Montgomery County on the same date. In an attempt to resolve the conflict, he sought yet another continuance of Wilcom’s case. 4 The “comedy” of errors proceeded.

Because Ficker put the wrong zip code on the envelope containing the motion for continuance that he tried to send to the District Court in Frederick, it never arrived there. Ficker, however, assumed both that the motion had arrived and that it would be granted. Without checking further, he advised Mrs. Wilcom that the case would be continued and that her son need not appear for trial on 24 June. ³¹¹ Despite that advice, Wilcom did appear in court on 24 June. Ficker, relying on the nonexistent continuance, did not.

The prosecutor had received a copy of Ficker’s motion and showed it to the trial judge, who offered Wilcom yet another postponement. Wilcom elected to proceed pro se. He pled guilty to driving under the influence and received probation and a fine. When Ficker learned of this, he represented Wilcom without charge at a de novo appeal.

Wilcom was convicted of driving under the influence. The court imposed probation and a fine almost double that imposed in the District Court. C. Ficker’s Exceptions Ficker insists that he did not violate DR 6-101(A)(S) in the Daley matter because a single inadvertent failure to appear is not neglect of a legal matter. Nor is his failure to enter his written appearance neglect, he says, because that was not shown to be part of a pattern of neglect. 5 The text for his argument is American Bar Association Committee on Ethics and Professional Responsibility Informal Opinion 1273 (1973).

The Committee opined that Neglect involves indifference and a consistent failure to carry out the obligations which the lawyer has assumed to his client or a conscious disregard for the responsibility owed to the client. The concept of ordinary negligence is different. Neglect usually involves more than a single act or omission. Neglect cannot be found if the acts or omissions complained of were inadvertent or the result of an error of judgment made in good faith.

Accord, ABA Comm, on Ethics and Professional Responsibility, Informal Op. 1428 (1979); ABA Comm, on Ethics and ³¹² Professional Responsibility, Informal Op. 1467 (1981); Informal Opinion 1273 also is cited in R. Rotunda, Professional Responsibility 86 (1988). We have considered the ABA Committee’s construction of DR 6-101(A)(3), but decline to follow it. First, it is an advisory opinion given in a vacuum with the conclusion already assumed in the question submitted to the Committee. The opinion responds to this question: “Assume a lawyer has not neglected the matter entrusted to him, is his ordinary negligence involving an affirmative act or omission grounds for disciplinary action?” Informal Op. 1273, supra [emphasis supplied].

Second, we already have read DR 6-101(A)(3) more broadly than has the ABA Committee. In Attorney Griev. Comm’n v. Montgomery, 296 Md. 113 , 460 A.2d 597 (1983), we considered, among other things, a complaint of Gerald McCants. An action brought by Montgomery on behalf of McCants was dismissed at a hearing attended by McCants but not by his lawyer, Montgomery. 296 Md. at 119 , 460 A.2d at 600 .

We concluded that Montgomery “was not present in court when the dismissal took place and this alone would constitute neglect.” Id. We did not speak of patterns or consistent failure or conscious disregard of responsibility, nor did we suggest that inadvertence might be a defense. We found, a single failure to appear to be neglect. We believe Ficker’s single failure to appear also was neglect, as was his failure to enter his written appearance.

See also Attorney Griev. Comm’n v. Myers, 302 Md. 571, 579 , 490 A.2d 231, 235 (1985) (single instance of failure to include attestation clause and witness signature lines on will is neglect). Given the duty of zealous representation that a lawyer owes the client, we are not persuaded that a failure to appear caused by poor office practices or simple forgetfulness can never be neglect. Nor are we convinced that inadvertent failure to comply with a mandatory rule like ³¹³ Rule 4-214(a) can never be a violation of DR 6-101(A)(3). 6 Ethical Consideration 6-1 (under Canon 6 of the Code of Professional Responsibility) directs a lawyer to “act with ... proper care in representing clients.” Ethical Consideration 6-4 also admonishes a lawyer who has undertaken representation to “use proper care to safeguard the interests of his client.” Derelictions of the sort involved here can result in serious harm to the client, even when the cause is no more than carelessness.

Both Daley and Ficker are fortunate that no major prejudice occurred in this case, but we reject Ficker’s argument that a single act of negligence that causes no serious harm is not, as a matter of law, a violation of DR 6-101(A)(8). We agree with Judge Messitte that inadvertence, lack of a persistent pattern of conduct, lack of prejudice to the client, and other such matters “more properly pertain to mitigation of any sanction, rather than the fact of violation.” See Maryland Stale Bar Ass’n v. Phoebus, 276 Md. 353, 362 , 347 A.2d 556, 561 (1975) (“[wjhere an attorney has been shown to have been negligent, or inattentive to his client’s interests ... in violation of the canons ..., the imposition of some disciplinary sanction against him may be warranted; the extent of the discipline to be applied, however, is generally dependent upon the severity of the conduct and the particular facts and circumstances surrounding it”). Ficker also insists that his inadvertent failure to be present at Daley’s trial cannot be conduct prejudicial to the administration of justice in violation of DR 1-102(A)(5). 7 ³¹⁴ He argues that to pass constitutional muster the term “conduct prejudicial to the administration of justice” must be narrowly defined or limited to “particularly egregious conduct” or “conduct flagrantly violative of accepted professional norms.” In re Hinds, 90 N.J. 604, 632 , 449 A.2d 483, 498 (1982) (citing Committee on Professional Ethics v. Durham, 279 N.W.2d 280 (Iowa 1979)). Hinds does not hold, however, that DR 1-102(A)(5) would be unconstitutional if not construed as Ficker wishes; it says only that if so construed, the rule is sufficiently definite.

More to the point, we have very recently concluded that Rule 1-102(A)(5) “is neither facially overbroad nor void for vagueness____” Attorney Griev. Comm’n v. Alison, 317 Md. 523, 538 , 565 A.2d 660, 667 (1989). There, we pointed out that “ ‘[t]he regulation ... applies only to lawyers, who are professionals and have the benefit of guidance provided by case law, court rules and the “lore of the profession.” In re Snyder, ... 472 U.S. [634] at 645, 105 S.Ct. [2874] at 2881 [ 86 L.Ed.2d 504 (1985) ].’ ” 317 Md. at 538 , 565 A.2d at 667 (quoting Howell v. State Bar of Texas, 843 F.2d 205, 208 (5th Cir.), cert. denied, — U.S.-, 109 S.Ct. 531 , 102 L.Ed.2d 563 (1988)). See also Attorney Griev.

Comm’n v. Korotki, 318 Md, 646, 667-668, 569 A.2d 1224, 1234-1235 (1990). In that case we upheld DR 2-106, prohibiting excessive fees, against a vagueness challenge. Judge Rodowsky, for the Court, observed that “[t]he regulations governing conduct of members of the bar are civil and not criminal” and subject to more tolerant scrutiny than an enactment imposing criminal penalties. “ ‘All that is necessary is that the [disciplinary] rule prescribe general principles so that those subject to the rule are reasonably able to determine what conduct is appropriate.’ ” 318 Md. at 667 , 569 A.2d at 1235 (quoting In re Charges of Unprofessional Conduct Against N.P., 361 N.W.2d 386, 394 (Minn.), appeal ³¹⁵ dismissed, 474 U.S. 976 , 106 S.Ct. 375 , 88 L.Ed.2d 330 (1985)). Ficker fares no better with his contention that inadvertent failure to appear in court cannot constitute conduct prejudicial to the administration of justice.

Unlike the respondent in Matter of Alexander, 496 A.2d 244, 250 (D.C.App.1985), a case Ficker relies on, Ficker knew precisely when Daley’s trial was to be held and had agreed to be there. His negligent failure to be present at that trial interfered with the orderly disposition of the court’s docket; a trial set for 9:00 a.m. had to be postponed until afternoon. We have held that failure to be punctual in a scheduled court appearance is “not only detrimental to the administration of justice but also constitute^] discourteous conduct degrading to the tribunal.” Attorney Griev. Comm’n v. Howard, 282 Md. 515, 523 , 385 A.2d 1191, 1196 (1978).

We have held that an attorney who fails to appear punctually at a trial is guilty of a contempt of court. Kandel v. State, 252 Md. 668 , 250 A.2d 853 (1969). Misconduct of that sort is a contempt of court because it interferes with the conduct of court business. [A]n attorney plays such an integral role in the judicial process that without his presence the wheels of justice must, necessarily, grind to a halt. The attorney’s absence from the courtroom is immediately cognizable by the judge and intrudes upon the operation and dignity of the court.

Murphy v. State, 46 Md.App. 138, 146 , 416 A.2d 748, 753 (1980). If being late for a scheduled court appearance interferes with the administration of justice, it is obvious that being altogether absent from a scheduled trial does so as well. As in the case of neglect, the circumstances surrounding the failure to appear and the actual consequences of that failure are matters that go to the question of sanction. We overrule Ficker’s exceptions to Judge Messitte’s conclusions of law in the Daley matter. ³¹⁶ II. “Palimony” A. The Facts We now turn to the “palimony” problem.

The facts on which the charges against Ficker are based are simple; the resolution of the question of whether these facts establish a violation of Rule 7.1, Rules of Professional Conduct, is more complex. 8 In 1987, Ficker placed advertisements in the Washington Post and the Washington Times. They read: PALIMONY Suits Against Wealthy Men Robin Ficker, Atty. 652-1500 The ads ran once in each of two successive weeks in each paper. No one responded to the ads, and Ficker withdrew them. Judge Messitte found that Ficker, who had a very limited divorce practice, had never had an occasion to file a law suit seeking “palimony.” The lawyer chose to use the term “palimony” because it was “punchy” and would give him more “bang for my buck.” He conceded that when he placed the ads, he knew that “palimony” was not a precise term and that “it means different things to different people, depending upon their fact circumstances.” Ficker “knew that any recovery had to be based on a contractual right, or ³¹⁷ a promise other than simply based on the meretricious, or sexual aspect of the relationship.” He sought to limit his clients to those with “suits against wealthy men” as a “screening device meant to target situations where people had substantial involvements, and could actually afford to have an attorney represent their interest.” Before Judge Messitte, Bar Counsel argued that “palimony” meant “alimony for a pal” and that Maryland law had never recognized such a cause of action.

Since the ads invited