Attorney Grievance Commission of Maryland v. O'Neill

Smith, J., delivered the opinion of the Court. Murphy, C. J., and Orth and Cole, JJ., dissent and Murphy, C. J., filed a dissenting opinion in which Orth and Cole, JJ., concur at page 57 infra. Bar Counsel on behalf of the Attorney Grievance Commission filed a petition for disciplinary action against Robert Joseph O’Neill, III (O’Neill). It alleged that he had violated Disciplinary Rule 1-102 (A), subsections (4), (5), and (6).

Pursuant to the Maryland BV rules we referred the complaint to a judge of the Circuit Court for Baltimore County for hearing. He conducted an evidentiary hearing. He ⁵³ then filed a memorandum opinion setting forth his findings of fact and conclusions of law. He determined that O’Neill had violated the disciplinary rules as charged.

No exceptions were filed on behalf of O’Neill. We set down for oral argument the question of the sanction to be imposed. At that time we heard from counsel for O’Neill and from Bar Counsel. Under our revised rules a trial judge no longer makes a recommendation as to a sanction.

We adopt, with minor editing, the memorandum opinion of the trial judge who heard the matter. He said in pertinent part: For the purpose of analyzing the facts, the Disciplinary Rule in question will be preliminarily stated: “DR 1-102 Misconduct. (A) A lawyer shall not: ... (4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

(5) Engage in conduct that is prejudicial to the administration of justice. (6) Engage in any other conduct that adversely reflects on his fitness to practice law.” See Maryland Rule 1230. Code of Professional Responsibility. Appendix F of the Maryland Rules.

The facts constituting the alleged violation are clear and need not be belabored. In the Petitioner’s case, Bar Counsel produced the Honorable Guy J. Cicone of the Circuit Court for Howard County; Stephen J. Smith, Esquire, then an Assistant State’s Attorney for Howard County; and Mrs. Barbara McCullough, an agent of the Division of Parole and Probation assigned to Howard County. Each witness testified that on February 1,1977, O’Neill made false statements to him or her while knowing such statements to be false. The subject of the false statements was whether O’Neill, while a probationer in a “Driving While Intoxicated” case in Howard ⁵⁴ County, had paid certain court costs as ordered by Judge Cicone.

The three witnesses testified that O’Neill had told them that the Probation Department’s records were inaccurate because he had already paid the court costs. Bar Counsel introduced the record of' the proceedings made on February 1,1977, before Judge Cicone in the Circuit Court for Howard County. The transcript contains admissions by O’Neill that he had earlier in the day lied to Judge Cicone, to Mr. Smith, and to Mrs. McCullough. Testifying in his own behalf before this Court, O’Neill freely admitted that he had knowingly misrepresented to Judge Cicone and to Mr. Smith that he had paid the subject court costs, though the substance of his testimony was that he falsely stated that the payments must have been lost in the mail.

O’Neill denied having lied to Mrs. McCullough; rather, he explained that he merely told her what he had earlier stated to Judge Cicone and to Mr. Smith. In light of the testimony of the Petitioner’s witnesses, the transcript of the proceedings before Judge Cicone, and O’Neill’s admissions, this Court must find as a matter of fact that O’Neill knowingly made false statements to Judge Cicone, to Mr. Smith, and to Mrs. McCullough with the intention of obscuring the truth. The second function of this Court is to determine whether, as a matter of law, the adjudicated facts constitute a breach of the above-cited DR 1-102 (A)(4), (A)(5) and (A)(6). The very recent case of Attorney Griev.

Comm. v. Finnesey, 283 Md. 541 , 391 A. 2d 434 (1978), is most apposite to the issue before this Court. There, Mr. Finnesey was charged with violating DR 1-102(A)(4). The crux of that allegation was that Mr. Finnesey had represented to his client that at least three different dates had been set for a hearing on a required petition, but that the matter was postponed ⁵⁵ by the Court on each occasion. In fact, Mr. Finnesey had never filed said required petition and no hearings were ever scheduled.

Mr. Finnesey did not deny that he lied to his client on several occasions regarding the status of the litigation. Citing Black’s Law Dictionary, Revised Fourth Edition, the Finnesey Court defined misrepresentation. “Any manifestation by words or other conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts.” The Court then characterized Mr. Finnesey’s conduct: “He was dilatory in performing his duties and sought to cover up his neglect by assuring the client that everything possible had been done to perfect her claim.” The Court concluded that ... “Mr. Finnesey’s conduct in neglecting his duty to his client and then covering up his inattentiveness by deliberately lying to his client, in our view constitutes misrepresentation and a violation of DR 1-102 (A)(4).” Applying the facts and conclusions of Finnesey to the case at bar, this Court believes that the conduct of O’Neill, substantiated by the Petitioner as well as admitted by O’Neill, constitutes misrepresentation within the scope of DR 1-102 (A)(4). With regard to the alleged violations of DR 1-102 (A)(5) and (A)(6), this Court believes that those subsections are broader statements of proscribed conduct into which O’Neill’s conduct must fall. DR 1-102 (A)(5) prohibits “conduct that is prejudicial to the administration of justice” and DR 1-102 (A)(6) prohibits “conduct that adversely reflects on his fitness to practice law.” In light of the adjudicated fact that O’Neill knowingly