ATTORNEY GRIEVANCE COM'N OF MARYLAND v. Harper & Kemp

RODOWSKY, Judge. The principal charges in these jointly tried attorney discipline cases allege violations of Rule 5.5 (Unauthorized practice of law) of the Maryland Lawyers’ Rules of Professional Conduct. 1 The violations concern a law office that operated in Baltimore City under the firm name, “Harper & Kemp,” from May 1995 until sometime in 1997. One of the respondents, T. Clarence Harper (Harper), is an attorney who is licensed to practice in the District of Columbia. Throughout the relevant period Harper maintained an office on Georgia Avenue in the District of Columbia.

His practice primarily has consisted of representing claimants in personal injury cases. The other respondent, Versteal Kemp (Kemp), is an attorney who has been licensed to practice in Maryland since 1974. For some portion of the relevant period Kemp maintained an office on Auth Place in Prince George’s County and later opened an office on Kenilworth Avenue in that county. His practice has been more general than that of Harper and has tended to concentrate in criminal defense work. 2 ⁵⁷ I The origins of Harper & Kemp trace back to two former Maryland attorneys who practiced in Baltimore City and who were disbarred by this Court, Fred Kolodner, see Attorney Grievance Comm’n v. Kolodner, 321 Md. 545 , 583 A.2d 724 (1991), and Burton M. Greenstein. 3 Fred Kolodner’s wife, Deborah Kolodner, was a principal in Industrial Medical Center, an enterprise which provided physical therapy and treatment facilities for automobile accident and workers’ compensation claimants.

After Fred Kolodner’s 1991 disbarment, Greenstein, at least ostensibly, assumed Fred Kolodner’s practice. Fred Kolodner worked in Greenstein’s office, as did one Joseph Mitchell Somerville, also known as A1 Mitchell (Mitchell). Mitchell testified that he had been a runner for Fred Kolodner, for which service he had been paid $200 to $600 a case by Deborah Kolodner. When the volume of cases was such that Fred Kolodner could not handle it, Mitchell worked in Kolodner’s office, and later in Greenstein’s office.

He obtained and organized the documentation, principally in support of damages, that was needed to settle the cases with insurers. At some point prior to early 1995 federal law enforcement officers seized personal injury case files from Greenstein’s office and stored them at a post office in Columbia, Maryland. It seems to be acknowledged by all of the parties in the instant matter that Deborah Kolodner, in some fashion that is not explained, controlled, or considered that she controlled, the cases that had been handled in Greenstein’s office. Harper & Kemp arose out of discussions between Deborah Kolodner and Harper in early 1995.

The understanding was that Deborah Kolodner would refer the clients or files of Greenstein/Industrial Medical to Harper who would undertake to settle the cases. Harper thereafter discussed this arrange ⁵⁸ ment with Kemp, which resulted in the opening of the Harper & Kemp office at 1010 St. Paul Street in Baltimore City. There never was any written agreement between the two respondents as to the financial aspects of Harper & Kemp. At the hearing in this matter they disagreed as to whether any oral agreement ever had been reached.

Harper testified that there was an oral arrangement under which each respondent would contribute thirty percent of the fees collected on work generated by that attorney into the office’s operating account in order to pay expenses, and that the producer would keep the balance of the fee generated by him. The matter was to be revisited if that initial level of contribution to expenses became insufficient. Kemp, on the other hand, testified that no agreement had been reached and, indeed, that he was annoyed over Harper’s having “had his name first on. the door.” Further, Kemp wanted a written agreement which provided that he would receive some percentage of the fees on cases that Harper brought in. Kemp tacitly acknowledges that the Greenstein files, as between the two respondents, were cases generated by Harper. 4 Harper established escrow and operating accounts on which both he and Kemp were authorized signators.

The checks for those accounts are respectively imprinted “Harper & Kemp, Attorneys at Law—Escrow Account” and “Harper & Kemp, Attorneys at .Law—Operating Account” with the St. Paul Street address and the telephone number of that office. Harper signed a one-year lease for the office that expired in May 1996; thereafter, the tenancy was month to month. There was also legal stationery headed “Harper & Kemp.” Behind Harper’s name a symbol referred the reader to the statement, “Member of D.C., and Maryland Federal Bars.” Behind Kemp’s name a different symbol referred the reader to the statement, “Member of Maryland State and Federal Bars.” ⁵⁹ Harper & Kemp, through Harper, hired Mitchell. Harper told an investigator for Bar Counsel that this had been done on the recommendation of Deborah Kolodner. 5 Mitchell’s principal duties were to put in order and make current the Greenstein files, a responsibility that required him frequently to travel to the post office in Columbia.

In its physical layout the Harper & Kemp suite was a former physician’s office, with a waiting room, glass-enclosed receptionist area, a small office used by Mitchell and at times by Kemp, and a large office used by Harper. According to Harper, for the first nine months of operation the respondents alternated in covering the office. Thereafter, Kemp stopped coming to the office on this schedule, although he still retained keys to it and, when the locks were changed, he received keys which gave him access through the front door and to the small office. After Kemp stopped coming to the office, he did not change his address from 1010 St. Paul Street.

Individual pieces of mail of a quantity sufficient to fill two large manila envelopes and postmarked between June 1995 and January 1997 were addressed to Kemp at 1010 St. Paul Street but had not been seen by him prior to trial. Between May 1995 and September 1996 Harper drew fifty-five checks, totaling $110,353.93, on the escrow account that were payable to clients as distributions of settlement proceeds. He also drew checks on the escrow account totaling $82,241.97 of which six were payable to cash and the others payable to Harper personally or to Harper & Kemp. The total of deposits to the operating account is not in the record.

Kemp never contributed to expenses, and he made no deposits to or withdrawals from the operating account. ⁶⁰ Harper signed the retainer agreements between Harper & Kemp and the personal injury clients. When Harper was interviewed by Bar Counsel’s investigator at the St. Paul Street office, Harper said that the files that were piled around the office were his and not Kemp’s. Kemp testified that he had seen the files piled up in Harper’s office but that he did not work on any of the cases. Without objection from Harper, Bar Counsel’s investigator testified that Kemp told him in April 1997 that Kemp “had nothing to do with the files up in Baltimore” and that Harper “had been the person who had dealt with all of the clients up there.” In the late spring or early summer of 1996 Kemp arranged to share office space with another attorney.

Prior to putting those arrangements into effect Kemp said that he had spent a good deal of time in Georgia while his mother was dying of cancer. Mitchell worked at Harper & Kemp for a little less than one year, from June or July of 1995 to May of 1996. During that time he said that he worked daily with Harper, but saw little of Kemp who had a practice elsewhere and who occasionally came into the office in the evening and left notes for Mitchell concerning Kemp’s cases. Harper testified that he closed the Baltimore office sometime in 1997.

II The petition for disciplinary action against the respondents resulted from complaints to Bar Counsel by certain Harper & Kemp clients. In addition to charging a violation of Rule 5.5 by Harper, the petition also charges that Harper violated Maryland Code (1989, 1995 RepLVol.), § 10-601 of the Business Occupations and Professions Article (BOP). That statute in relevant part provides: “(a) In general—Except as otherwise provided by law, a person may not practice, attempt to practice, or offer to practice law in the State unless admitted to the Bar. ⁶¹ “(c) No defense to act through lawyer.—It is not a defense to a charge of a violation of this section that the defendant acted through [a] ... partner ... who is a lawyer.” BOP § 10-606(a)(3) makes violation of § 10-601 a misdemean- or. These two statutes form the basis for additionally charging Harper with violating Rule 8.4(b) and (d).

Respectively these sections provide that it is professional misconduct for a lawyer to “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects” and to “engage in conduct that is prejudicial to the administration of justice.” With respect to Kemp, the general arrangement between the respondents is the basis for charging Kemp with a violation of Rule 5.3, in addition to the charge under Rule 5.5(b) (assisting in the unauthorized practice of law). Rule 5.3 in general deals with “Responsibilities regarding nonlawyer assistants,” and is set forth in full in the margin. 6 Bar Counsel’s legal theory of the unauthorized practice aspects of this ease is that the lawyer who is admitted in another jurisdiction, but who is not admitted in Maryland, may not practice law in Maryland in partnership with a Maryland ⁶² attorney, out of an office maintained by the partnership in Maryland, unless the Maryland attorney supervises the work of the unadmitted lawyer. Because both respondents accept this legal analysis, we have no occasion in this matter to explore the theory further. The petition for disciplinary action also alleges other violations arising out of the legal representation of specific clients.

In each of these instances Bar Counsel again alleges Harper’s unauthorized practice of law and Kemp’s assistance in that unauthorized practice. We shall review the client-specific charges in Parts V and VI hereof. On referral from this Court, the petition against these respondents was heard by Judge Arthur M. Monty Ahalt of the Circuit Court for Prince George’s County. In his report submitted to us, Judge Ahalt found that the respondents committed each of the violations charged in the petition, with three exceptions that are relevant to our review.

First, the report is silent with respect to the charge against Harper of violating Rule 5.5(a). That omission is immaterial inasmuch as Judge Ahalt found that Harper violated BOP § 10-601 and Rule 8.4(b) and (d). Second, Bar Counsel had charged that the six checks drawn by Harper on the escrow account that were payable to cash violated Maryland Rule 16-609. That rule in relevant part provides that “[a]n instrument drawn on an attorney trust account may not be drawn payable to cash or to bearer.” Both respondents were charged with those violations, but the report does not mention them.

Third, Bar Counsel also excepted to the absence of any decision concerning certain letters in one of the client-specific matters that were charged as misleading. Harper’s written exceptions to Judge Ahalt’s findings are silent on the principal issue of unauthorized practice. His exceptions challenge only the sufficiency of the evidence to support two of the client-specific charges. At oral argument in this Court Harper addressed the larger picture.

He then contended that he was supervised by Kemp and, therefore, was not engaged in the unauthorized practice of law. ⁶³ Kemp’s exceptions to the findings are more fundamental. He challenges the finding that the respondents, in early 1995, when they met at a restaurant in Washington, D.C., “formed a partnership for the practice of law....” Kemp submits that the respondents’ arrangement was simply a sharing of space, that he had no obligation to supervise Harper’s practice, and that all charges against him should be dismissed. III In an exercise of discretion we shall treat Harper’s oral argument in this Court, directed to the finding of unauthorized practice, as an amendment to his written exceptions. Arguing within the framework of the legal premise on which this case was tried, Harper submits that he was sufficiently supervised by Kemp.

Harper argues that the degree of supervision required to avoid violating BOP § 10-601 is inversely proportional to the knowledge and experience of the unadmitted attorney in the field of practice in which that attorney is engaged. Here, Harper points to his experience in the plaintiffs’ personal injury field in the District of Columbia which, he submits, makes his conduct the authorized practice of law. This contention is answered by Judge Ahalt’s categorical finding that “Kemp never supervised Harper’s or Mitchell’s practice of law.” That finding is fully supported by the evidence reviewed in Part I. Consequently, Harper’s argument is reduced to defending the proposition that no supervision is required. That argument places an absurd construction on BOP § 10-601.

Under that argument an unadmitted attorney may maintain an office for the practice of law in Maryland, and may counsel and represent Maryland residents on legal matters involving the application of Maryland law, simply by arranging to use the name of an admitted attorney in the ostensible firm name of the unadmitted attorney’s practice. IV The position taken by Kemp in his exceptions to the charge of assisting in unauthorized practice is the antithesis of Har ⁶⁴ per’s argument. Kemp contends that he had no professional obligation to concern himself with supervising Harper’s practice because the respondents had never effected the contemplated partnership agreement. Kemp sees the relationship between the respondents to have been that of two lawyers who were merely sharing office space in the same suite.

Thus, submits Kemp, Judge Ahalt’s findings that Kemp failed to supervise Harper are immaterial. Kemp’s argument totally misses the point. Insofar as Kemp’s misconduct is concerned, whether the respondents, as between themselves, were partners is not determinative of whether Kemp assisted Harper’s unauthorized practice. Kemp furnished his name to the enterprise.

It was used on the office suite, on the stationery, and on the checks. From the standpoint of the public Kemp was Harper’s partner. Kemp assisted Harper in presenting himself to the public as a lawyer who was lawfully offering his legal services to all comers out of the office at 1010 St. Paul Street. There is no evidence that Kemp ever sought to have his name removed from the law practice, even after, under Kemp’s theory, the respondents were unable to agree on the terms of a written partnership agreement and even after Kemp ceased using the office.

V We now turn to the specific exceptions of Bar Counsel. A. Bar Counsel’s Complaint (Rule 16-609) Bar Counsel excepts to Judge Ahalt’s failure to address in any way the charge that six checks were drawn by Harper against the Harper & Kemp escrow account and made payable to cash, thereby violating Maryland Rule 16-609. Bar Counsel argues as to Kemp that, because it was admitted that Kemp was also a signatory of the