ATTORNEY GRIEV. COMM'N OF MARYLAND v. Kerpelman

KARWACKI, Judge. In a petition filed with this Court on March 29, 1990, the Attorney Grievance Commission charged Leonard Jules Kerpelman, a member of the Bar of this State, with professional misconduct. The petition alleged that while acting as counsel for Clifford M. Cowles in the trial of State v. Cowles, Criminal Docket No. 41860 in the Circuit Court for Montgomery County, Kerpelman had violated Rules 3.5(a)(8), 8.2(a), 8.4(a), 8.4(b) and 8.4(d) of the Rules of Professional Conduct, adopted by Maryland Rule 1230. 1 ¹³⁹ Also, Kerpelman was charged with violating other of these Rules of Professional Conduct in the course of his representation of Daniel M. McIntyre in the defense of a criminal prosecution brought in Wicomico County. 2 ¹⁴⁰ Pursuant to Md. Rule BV9(b), we ordered that the charges be transmitted to Judge Arrie W. Davis of the Circuit Court for Baltimore City for a hearing. Soon after being personally served with the pleadings in this case on April 20,1990, Kerpelman filed a motion to disqualify Judge Davis from making findings of fact and conclusions of law on the charges, asserting that Judge Davis “is believed to have a personal animosity to” Kerpelman.

While strenuously denying any such bias, Judge Davis recommended, because of prior difficulties which he had experienced with Kerpelman while presiding in the Circuit Court for Baltimore City, that we assign another judge to hear the charges against him. Consequently, although we denied the motion to disqualify Judge Davis, Chief Judge Robert I.H. Ham-merman of the Circuit Court for Baltimore City 3 was designated to conduct the hearing and to file the findings and conclusions required by Md. Rule BVll(a). On August 2, 1990, Kerpelman, acting pro se, and assistant Bar Counsel met with Judge Hammerman to schedule further proceedings in the case. Both parties agreed to an order entered on August 6, 1990, which provided that a ¹⁴¹ hearing on the merits of the charges would begin on October 15, 1990, 4 the parties would submit pre-trial statements on or before October 1, 1990, any motions to be considered by the court would be heard on October 4, 1990 and the parties would conclude discovery no later than September 24, 1990.

On September 11 and 20, 1990, Bar Counsel filed motions pursuant to Md. Rules 2-432(a) and 2-433 for sanctions against Kerpelman because of his failure to respond to a request for production, inspection and copying of documents filed on August 8, 1990, and his failure to comply with the court’s order of August 7, 1990, requiring him to supplement his answers to interrogatories. Kerpelman responded to Bar Counsel’s motion for sanctions on October 1, 1990. In his response, he asked for a hearing of the motion on some day other than October 4 since he planned to be “out of town” on that day. This filing was brought to Judge Hammerman’s attention on October 2, 1990, and he immediately wrote Kerpelman and Bar Counsel, advising them that in accordance with the earlier scheduling order Bar Counsel’s motions for sanctions would be heard on October 4, 1990.

The hearing on all outstanding motions was held on October 4, 1990, as scheduled. Kerpelman did not attend. At the conclusion of the hearing on Bar Counsel’s motion for sanctions, the court ruled that Kerpelman would be limited to calling as witnesses only those persons whom he had identified in his answers to interrogatories as persons having knowledge of the facts and circumstances relevant to the Cowles complaint, and that as to the McIntyre complaint, judgment by default would be entered against Kerpelman on the allegations that he violated specified Rules of Professional Conduct in the course of his representation of Daniel M. McIntyre as alleged in the petition for disciplinary action. ¹⁴² Following the hearing on the merits of the petition for disciplinary action on October 15 and 16, 1991, Judge Ham-merman filed a written statement of his findings of fact and conclusions of law in compliance with Md. Rule BVll(a). We quote extensively from that document: “This Court finds by clear and convincing evidence the following facts. /.

The Cowles Complaint “The Petitioner called as its witness the Honorable Paul Weinstein. On March 30-31, 1987 Judge Weinstein presided at the trial of Clifford M. Cowles before a jury in the Circuit Court for Montgomery County, Criminal Docket No. 41860. Cowles was charged with abducting his children from the lawful custody of his ex-wife. This Court finds from the testimony of Judge Weinstein in this proceeding that in the trial before him the Respondent on numerous occasions acted in a disruptive and disrespectful manner. “On several occasions before the jury the Respondent made inappropriate sarcastic remarks to and about the assistant state’s attorney; criticized the facilities in the courtroom; disparaged court personnel; and disparaged and questioned the competency and qualifications of Judge Weinstein himself. “The most egregious act of professional misconduct by the Respondent was consistent, knowing and blatant ignoring and defiance of the clear and explicit order of Judge Weinstein from the commencement of the trial and repeated thereafter, that the Respondent was to ask no questions to any witness nor make any comment to the jury of the dismissal of prior child abduction charges against his client in Prince George’s County.

The Respondent willfully and flagrantly violated this order by questions he asked and his statement to the jury: ‘All right, well the Court has prohibited us from bringing out the fact that Mr. Cowles was previously charged with child kidnapping and the case dismissed.’ ¹⁴³ It is clear that the Respondent was fully cognizant of the precise scope of Judge Weinstein’s proscription. Judge Weinstein found the Petitioner in direct criminal contempt, and two days after the conclusion of the trial Judge Weinstein sentenced the Respondent to five days in the Montgomery County Detention Center. Upon appeal the finding of contempt and sentence were upheld by the Court of Special Appeals in an unreported opinion, Kerpelman v. State, Court of Special Appeals, No. 464, September Term, 1987, filed December 21, 1987 [cert. denied, 313 Md. 8 , 542 A.2d 844 (1988) ]. “This court kept a precise minute by minute log of the direct examination of Judge Weinstein and the cross examination. The direct testimony lasted 20 minutes and was interrupted by no recess.

The cross examination on October 15 was 2 hours and 30 minutes and on October 16 1 hour and 36 minutes. These times exclude any recess time and thus there was actual cross examination by the Respondent of 4 hours and 6 minutes. “At the Court’s direction each party, prior to October 15, submitted its Statement of the Case. In his ‘Case Statement’ filed August 31, 1990, the Respondent wrote the following as his sole and complete statement as to the Cowles complaint: ‘Weinstein took a bribe to come in with a conviction against Kerpelman’s client; this having been done, it was the controlling fact which led to all else; Kerpelman committed no contempt.’ “During the 4 hours and 6 minutes of cross examination there was not a single question addressed by the Respondent to Judge Weinstein alluding to this ‘controlling fact.’ Almost all the questions related to Judge Weinstein’s qualifications and competence as a judge and what his motivations might have been for some of his rulings (with no allusion to bribery being one). “The cross examination of Judge Weinstein ended abruptly. This Court recalls, although the transcript will reflect with complete accuracy, that on two occasions on ¹⁴⁴ the morning of October 16 the Respondent complained of this Court’s rulings on objections by the Petitioner’s counsel and said that he felt threatened by the rulings and might have to silently leave.

At 12:10 p.m. the Respondent was asking the witness a question relating to a colloquy in the Cowles transcript. The transcript is in two volumes of 190 and 203 pages respectively. Each volume began with page 1. At the court’s direction, he gave the witness the volume, page and line number.

At 12:10 p.m. this Court asked the Respondent to please repeat the page number, whereupon the Respondent proceeded to criticize this Court for what he perceived to be the Court’s auditory problems and then stated that he felt threatened and was leaving silently. He picked up all papers, notes and other belongings at the trial table and at 12:11 p.m. voluntarily left the courtroom with nothing further being said. The Court asked counsel for the Petitioner if there was any redirect examination of the witness, he said no and the witness was excused. The Petitioner then rested its case on both complaints, the Court set a date for a memorandum to be submitted and then adjourned, all without the Respondent having returned to the courtroom.

The Court considered the hearing to have concluded. The following morning the court was hearing other proceedings, and as the Court left the bench for its customary 10 minute morning recess and was about two feet from the chambers door, the Respondent came into the courtroom and asked the Court what had transpired the day before. The Court told the Respondent that he could speak to the court reporter. The Court has heard nothing further from the Respondent.” Based upon those findings of fact, Judge Hammerman concluded that Kerpelman had committed the violations of the Rules of Professional Conduct alleged by the Attorney Grievance Commission.

As to the McIntyre complaint, Judge Hammerman recited the allegations of Bar Counsel on behalf of the Attorney ¹⁴⁵ Grievance Commission which had been admitted by the default judgment entered on October 4, 1991: “The Respondent was retained in July, 1988 to defend Daniel M. McIntyre against criminal sex abuse charges filed against him in Wicomico County, Maryland. The acts of alleged sex abuse of which McIntyre was charged occurred in or before the spring of 1978. Mr. McIntyre and his wife met with the Respondent on or about July, 1988, and discussed the Respondent’s fees for the representation. The Respondent advised McIntyre that his fee would be twenty-five hundred dollars ($2,500) to cover legal work up to and including the first day of trial and a further fee of twelve-hundred and fifty dollars ($1,250) for each additional day of trial.

The Respondent estimated that the trial of McIntyre’s case would take three (3) days and he requested, and McIntyre paid to the Respondent, five-thousand dollars ($5,000). The Respondent stated to McIntyre and his wife that if the trial was concluded short of three days, McIntyre would be refunded the unused portion of the fee. No fee agreement was executed by McIntyre or by the Respondent. “When McIntyre insisted upon a meeting to prepare for the trial, the Respondent was abusive to both Mr. and Mrs. McIntyre. On October 18, 1988, McIntyre verbally discharged the Respondent and on October 24, 1988, McIntyre confirmed in writing the discharge of the Respondent.

He requested a refund of all but $500 of the fee. After the Respondent’s employment was terminated, McIntyre requested that his file be returned to him or turned over to other counsel who would be acting on his behalf. Despite these requests and the requests of McIntyre’s new attorney, the Respondent failed to turn over McIntyre’s file. “The Respondent failed to timely strike his appearance in McIntyre’s case and filed pleadings and appeared in court after he was discharged. His attendance at court occurred after McIntyre’s new counsel had entered his appearance. ¹⁴⁶ “In a letter transmitted to McIntyre on or about January 2, 1989, the Respondent represented that he had ‘re-examined’ the retainer agreement and claimed that it called for an ‘unrefundable retainer.’ This claim was made despite the fact that no written agreement existed and despite the fact that the Respondent represented to his client that a portion of the fee was, indeed, refundable if the matter was concluded short of three days of trial.

In fact, the Respondent was terminated prior to the case reaching court. “In the same letter, the Respondent threatened McIntyre with a suit for damages if McIntyre decided to go to the Grievance Commission while the Respondent was away. On or about January 10, 1989, the Respondent sent McIntyre» a file analysis which ostensibly accounted for the time he devoted to the case. Said accounting misrepresented and/or inflated the services the Respondent rendered and/or the time devoted to said services. The accounting included time spent supposedly on McIntyre’s behalf after the Respondent’s employment was terminated.

The Respondent refunded none of McIntyre’s fee. The same letter, containing the