ATTORNEY GRIEVANCE COMM'N OF MARYLAND v. James

RODOWSKY, Judge. Richard Allen James (James) was admitted to the bar of this Court in June 1971. He is also admitted to practice in the District of Columbia and maintains an office there. This is the fourth time that he has appeared before us as the respon ⁴⁷⁰ dent in an attorney disciplinary matter.

In 1984, we suspended James from the practice of law for a minimum of two years. Attorney Grievance Comm’n v. James, 300 Md. 297 , 477 A.2d 1185 (1984) (James I). Nine years later, in Attorney Grievance Commission v. James, 333 Md. 174 , 634 A.2d 48 (1993) (James II), this Court suspended James for one year, from January 12, 1994, to January 12, 1995. The misconduct established in James II involved the use of deception to circumvent a statutorily mandated procedure for processing, through the Division of Parole and Probation, checks for restitution payments.

Id. at 183 , 634 A.2d at 52 . Shortly before January 12, 1995, James filed with Bar Counsel the affidavit required by then Maryland Rule BV13 a 2. 1 Following an investigation, Bar Counsel responded that James “ ‘has violated the terms of his suspension by engaging in the practice of law during the period of this suspension.’ ” Attorney Grievance Comm’n v. James, 340 Md. 318, 320-21 , 666 A.2d 1246, 1247 (1995) (lames III). At the time of his suspension James had maintained an office for the practice of law in Greenbelt, Prince George’s County, and we referred the matter to Judge Graydon S. McKee, III of the circuit court for that county for an evidentiary hearing. Id. at 321 , 666 A.2d at 1247 .

Judge McKee found that James had engaged in conduct constituting the practice of law between January 1994 and January 1995. We overruled exceptions to Judge McKee’s findings. “Inasmuch as James never served the one year suspension imposed in James II we order[ed] that James serve the suspension of one year for the violations that he committed, as determined in James II.” Id. at 333, 666 A.2d at 1253 . ⁴⁷¹ The one-year period of the suspension reimposed in James III expired November 12, 1996. James, however, never filed an affidavit that he “has complied in all respects with the term of the suspension” reimposed in James III. As a result, James has been suspended continuously since January 12, 1994, to date.

In James III this Court carefully noted that “[o]ur disposition deals only with the sanction imposed for the misconduct in James II. Whether any disciplinary proceedings should be undertaken concerning the activities of James, or of any other or others, during the time when James should have honored the order of suspension filed in James II is a matter for Bar Counsel to determine in the first instance.” Id. In January 1998, the Attorney Grievance Commission (the Commission) petitioned this Court for disciplinary action against James, alleging that he had continued to practice law after having been suspended as of January 12, 1994, in James II. Essentially, the petition alleged the facts that had been found by Judge McKee in James III, from which this Court concluded that James had never served the one year suspension beginning January 12, 1994.

The petition additionally alleged that James had represented William Wrubleski (Wrubleski) and Rasheed Jackson (Jackson) during the James II suspension period of 1994-1995. James was charged, inter alia, with violating Maryland Rule of Professional Conduct 5.5 (Unauthorized Practice of Law). We transmitted the matter to Judge James J. Lombardi of the Circuit Court for Prince George’s County for hearing. At the hearing Judge Lombardi accepted as established the facts on which this Court in James III had based the reimposition of the James II suspension and took testimony related to James’s representation of Wrubleski and Jackson.

James produced evidence that he was an alcoholic and that his alcoholism had substantially impaired his judgment, resulting ⁴⁷² in his failure to comply with his suspension. James further produced evidence that, since July 1996, he had been sober. Judge Lombardi filed his report with this Court in August 1998. He concluded that the conduct on which the Commission’s allegations were based had been conclusively established in James III.

Judge Lombardi also found that it was undisputed that James practiced law while suspended by representing Wrubleski and Jackson. He focused his analysis on James’s evidence in mitigation, concluding that “it is more likely than not that [James] was affected by his alcoholism in continuing to practice law during his period of suspension.” While the hearing in this Court on the report was pending, Bar Counsel moved to remand the matter to Judge Lombardi to hear additional evidence bearing on mitigation. James opposed the remand, arguing that no evidence on new allegations had been presented to an Inquiry Panel or to the Review Board and could not be considered by Judge Lombardi in the first instance. This Court granted the remand, and, in effect, deferred ruling on James’s procedural objection until our decision on all issues.

At the hearing on remand, Bar Counsel called Bernice Roane, who testified that James had assisted her from his office in Greenbelt on three legal matters. First, she stated that James drew up wills for her and her husband in September 1997. The Roanes had first met James by happenstance while they were in the lobby of his building for the purpose of having wills prepared by another attorney whom they did not know, at which time James offered to draw up the wills for them. James gave Mrs. Roane his card identifying himself as an attorney and listing only the Greenbelt office address and telephone number.

At his office the Roanes paid James $250 for the two wills. Both wills are dated September 9, 1997, were executed in James’s office, and were witnessed by James and his secretary. Second, after Mrs. Roane’s husband died in January 1998, James assisted her at his Greenbelt office with certain annui ⁴⁷³ ties left by her husband. She paid James $2,000 for these services.

Third, in November 1997 James assisted her in filing the will of her recently deceased aunt in the District of Columbia. James charged her $500, but later returned the fee. James testified that he had sent Mr. Roane some professional cards in the late 1980s or early 1990s on other matters. He said that he prepared the Roanes’ wills at his D.C. office and only met the clients in Greenbelt out of consideration for Mr. Roane’s age and poor health, and that he worked on the annuities out of his D.C. office.

Judge Lombardi found “that Mr. James practiced law in Maryland pursuant to the testimony of Mrs. Roane.” In his findings of fact on remand, Judge Lombardi related James’s conduct, as described by Mrs. Roane and beginning well after James had stopped drinking, to the report previously submitted to this Court. The judge stated that he had been “very impressed” with testimony presented during the July 1998 hearing that James’s “alcoholism was directly related to his impaired judgment in continuing to practice law.” Nevertheless, “[t]his [new evidence] changes that.” Because James had been sober since July 1996, Judge Lombardi found “that this practice of law during this ’97-’98 period is not affected by his alcoholism,” thereby seriously undermining the prior mitigation testimony. Consequently, Judge Lombardi withdrew his earlier finding that James “was affected by his alcoholism in continuing to practice law during his period of suspension.” He found “that the respondent engaged in the unlawful practice of law from August 1997 through April 1998.” James has taken seven exceptions to Judge Lombardi’s report. We shall consider each exception individually, stating additional facts as necessary to the consideration of the issue.

I James excepts to the introduction of Mrs. Roane’s evidence at the hearing on remand without that evidence first having been submitted to an Inquiry Panel. He considers the ⁴⁷⁴ Roane evidence to constitute charges of additional violations of Rule 5.5 by him, so that the evidence should have been presented first to an Inquiry Panel as required by Rule 16-706 a. Rule 16-706 provides, in relevant part: “a. Bar Counsel. 1.

Filing and investigation. Every complaint that an attorney has committed an act of misconduct or that he is incompetent shall be filed with and recorded by the Bar Counsel. The Bar Counsel shall investigate each complaint. “4. Reference to Inquiry Panel.

Unless a complaint is dismissed or an Inquiry Panel proceeding has been dispensed with pursuant to Rule 16-706, the Bar Counsel shall refer the complaint to an Inquiry Panel and give notice of the complaint to the attorney against whom the complaint has been made. The notice shall inform the attorney of the nature of the complaint made. In unusual or extraordinary circumstances, the Bar Counsel, in his discretion, may defer giving notice to the attorney for a reasonable time. “b. Inquiry Panel proceeding not required. 1.

When not required. An Inquiry Panel proceeding is not required in a case where either: “(a) Both the attorney complained against and the Bar Counsel waive an Inquiry Panel proceeding in writing; or “(b) The complaint is either (i) that there has been a final judgment of conviction as defined by Rule 16-710 e 1 of a crime punishable by imprisonment for more than one year; or (ii) that the attorney has been adjudged guilty of misconduct by a judicial tribunal in a disciplinary proceeding as defined by Rule 16-710 e 1 and that the adjudication of misconduct has become final.” In the motion for remand Bar Counsel submitted that “[ejvidence that the Respondent continued to engage in the unauthorized practice of law during a period over one and a half years removed from his last drink would, it is submitted, cast doubt on any finding that the misconduct was ⁴⁷⁵ causally connected to alcoholism and would demonstrate further evidence of the disregard by the Respondent of this Court’s Order of Suspension.” The purpose of introducing the Roane evidence was not to prove additional violations of Rule 5.5, by James’s representing the Roanes in various matters while he was suspended, in order to impose discipline on James for those uncharged violations. The purpose was to rebut James’s evidence of mitigation. As Judge Lombardi said: “Dr. [Lion] testified that Mr. James’ alcoholism was directly related to his impaired judgment in continuing to practice law.

I didn’t hear any testimony to the contrary, and so I credited that testimony as being more likely so than not so in contributing to his impaired judgment. “This changes that. Accordingly, 1 feel that this practice of law during this ’97-98 period is not affected by his alcoholism and I think that seriously undermines the testimony of both Mr. Vincent and Dr. [Lion], so, accordingly, I will withdraw my recommendation for mitigation.” James rests his argument exclusively on Rule 16-706 and asserts that the “skirting” of the Rule is “unprecedented.” We note that James does not argue that the conduct described in the Roane evidence is inadmissible under Maryland Rule 5-404(b). Yet, the effect of James’s argument is that evidence of prior “bad acts” that might be the basis for disciplinary charges and which is admissible under Rule 5-404(b) would be inadmissible in a disciplinary proceeding in which the evidence had special relevance, unless the evidence had been the subject of an Inquiry Panel proceeding. That is not the intent of Rule 16-706.

The rule is a filter for charges, not for evidence. Further, precedent for the use of such “bad acts” evidence is James III. 840 Md. 318 , 666 A.2d 1246 . In James III the conduct that is now charged in this case for the purpose of imposing discipline was proved, not to impose discipline for that conduct, but for the purpose of showing in James III that James had never complied with the sanction imposed for the ⁴⁷⁶ misconduct charged and proved in James II, 333 Md. 174 , 634 A.2d 48 . II In this Part II we address the only exception filed by James that attacks the findings of violations in the Wrubleski and Jackson matters.

James argues that Judge Lombardi erred in omitting from his August 1998 opinion the fact that James received no compensation for representing Wrubleski and Jackson during 1994-1995, the period of the suspension imposed in James II . James did testify that he did not request nor receive payment for the legal services he provided to Wrubleski and Jackson. While this Court has recognized that it “has always found it difficult to craft an all encompassing definition of the ‘practice of law,’ ” it has stated that “[t]o determine whether an individual has engaged in the practice of law, the focus of the inquiry should ‘be on whether the activity in question required legal knowledge and skill in order to apply legal principles and precedent.’” Attorney Grievance Comm’n v. Hallmon, 343 Md. 390, 397 , 681 A.2d 510, 514 (1996) (quoting In re Discipio, 163 Ill.2d 515, 523 , 206 Ill.Dec. 654 , 645 N.E.2d 906, 910 (1994)). The fact that James did not receive a fee for his legal services does not preclude a finding that he acted as the attorney for Wrubleski and Jackson during the suspension. “Although an agreement upon the amount of a retainer and its payment is rather conclusive evidence of the establishment of the attorney-client relationship, the absence of such an agreement or payment does not indicate conclusively that no such relationship exists.

Indeed, the payment of fees is not a necessary element in the relationship of attorney and client. The services of an attorney to the client may be rendered gratuitously but the relationship of attorney and client nonetheless exists.” Central Cab Co. v. Clarke, 259 Md. 542, 549-50 , 270 A.2d 662, 666 (1970); accord Attorney Grievance Comm’n v. Shaw, 354 ⁴⁷⁷ Md. 636, 648-49, 732 A.2d 876, 882 (1999). The absence of a fee is not a basis for sustaining the exception. Ill James’s next exception goes to the reasons stated by Judge Lombardi for concluding that all of the conduct charged in the present case was conclusively established by the judgment in James III, with the exception of the Wrubleski and Jackson matters.

The conduct charged by Bar Counsel in the instant matter is set forth in paragraphs four through fifteen of the Petition for Disciplinary Action, which we set forth in the margin. 2 These allegations had been referred as complaints ⁴⁷⁸ to an Inquiry Panel which recommended that charges be filed against James for these alleged violations as well as for violations based on the Wrubleski and Jackson matters. When the charges were heard before Judge Lombardi he ruled, over objection by James, that it was unnecessary for Bar Counsel to prove the allegations of paragraphs four through fifteen of the Petition for Disciplinary Action because the facts underlying these allegations had already been conclusively established by the judgment in James III. Both from the bench at the time of ruling, and in his report, Judge Lombardi based his ruling on Maryland Rule 16-710 e 1, presumably on that portion reading: “A final adjudication in a disciplinary proceeding by a judicial tribunal or a disciplinary agency appointed by or acting at the direction of a judicial tribunal that an attorney has been guilty of misconduct is conclusive proof of the misconduct in the hearing of charges pursuant to this Rule.” James submits that the proceedings in James III were not a proceeding in which “an attorney has been [found] guilty of misconduct,” and, therefore, that Judge Lombardi errone ⁴⁷⁹ ously relieved Bar Counsel of the burden of proving the matters charged in paragraphs four through fifteen of the petition by clear and convincing evidence. The point is well taken.

James III did not arise on a petition for disciplinary action in which charges were made against James for the purpose of imposing discipline on those charges, if established. James III arose on what is now Rule 16-713 a 2 to determine whether James had complied in all respects with the terms of his suspension in James II . That issue had been joined by Bar Counsel’s conclusion that James had not complied, a conclusion that prevented the Clerk of this Court from replacing James’s name upon the register of attorneys and effectively continued the suspension until this Court ruled. The most common applications of the above-quoted portion of Rule 16-710 e are reciprocal discipline cases.

See, e.g., Attorney Grievance Comm’n v. Richardson, 350 Md. 354, 365 , 712 A.2d 525, 530 (1998); Attorney Grievance Comm’n v. Sabghir, 350 Md. 67, 79 , 710 A.2d 926, 931-32 (1998); Attorney Grievance Comm’n v. Gittens, 346 Md. 316, 324 , 697 A.2d 83, 87 (1997). Consequently, James’s exception reviewed in this Part III is sustained. 3 This ruling does not, however, affect the finding of additional violations by James in the Wrubleski and Jackson matters. IV James argues that Judge Lombardi erred in refusing to permit Dr. John R. Lion, a forensic psychiatrist, to testify to ⁴⁸⁰ the lack of danger to James’s clients or to the public if his suspension were lifted. The submission is that, because the purpose of disciplinary proceedings is not punishment but is to protect the public, the evidence should have been allowed.

It is true that “[disciplinary proceedings for professional misconduct are not criminal proceedings. Their purpose is to protect the public by determining a lawyer’s fitness ,to practice law.” Attorney Grievance Comm’n v. Stewart, 285 Md. 251, 258 , 401 A.2d 1026, 1029 , cert. denied, 444 U.S. 845 , 100 S.Ct. 89 , 62 L.Ed.2d 58 (1979). James, however, unduly restricts this “protection of the public” determination. “The disbarment of an attorney protects the public not only from being further victimized by the attorney himself, but also ... it protects the public ‘because it demonstrates to members of the legal profession the type of conduct which a court will not tolerate,’ and is necessary ‘to preserve the integrity of the legal and judicial system of Maryland.’ ” Attorney Grievance Comm’n v. Kahn, 290 Md. 654, 683 , 431 A.2d 1336, 1351-52 (1981) (citations omitted) (quoting Attorney Grievance Comm’n v. Kerpelman, 288 Md. 341, 382 , 420 A.2d 940, 959 (1980), cert. denied, 450 U.S. 970 , 101 S.Ct. 1492 , 67 L.Ed.2d 621 (1981), and