Attorney Grievance Commission v. Brown

ADKINS, Judge. The Attorney Grievance Commission, acting pursuant to Maryland Rule BV9, filed a petition seeking disciplinary action against R. Edwin Brown, a member of the Maryland Bar since 7 October 1941. We referred the matter to Judge Peter J. Messitte of the Circuit Court for Montgomery County. In his exhaustive “Findings of Fact, Conclusions of Law, and Recommendations,” Judge Messitte rejected some of the Commission’s charges, but nevertheless concluded that Brown had violated DR 1-102 (A)(1) (violation of a disciplinary rule), DR 1-102 (A)(6) (engaging in conduct that adversely reflects on fitness to practice law), and DR 6-101 (failing to act competently).

We shall reject Brown’s exceptions to Judge Messitte’s report and impose a reprimand. The events giving rise to the charges against Brown span an approximate decade from 1973 or 1974 to the early 1980’s. They begin with his representation of Walter and Elmyra Hahn as to a real estate problem and end with his handling of their estates and related matters, Mrs. Hahn ²²² having died in 1978 and Mr. Hahn in 1980. We shall discuss some of these events in more detail as we review Brown’s 13 exceptions to Judge Messitte’s findings and conclusions.

Before we get to that, however, we must address a preliminary matter. I. Brown’s Motion to Dismiss Both before Judge Messitte and in this Court, Brown sought dismissal of the Commission’s petition for lack of jurisdiction. The lack of jurisdiction, according to Brown, arises from improper action by the Commission’s review board — improper action that not only flouted Brown’s constitutional rights to due process, equal protection, and protection against former jeopardy, but also amounted to violation of the Commission’s Administrative and Procedural Guidelines (“Guidelines”) 1 and ran afoul of the doctrines of res judicata and estoppel. What happened was this: On 16 May 1985 the review board met, with 12 of its 18 members present.

It found Brown in violation of various disciplinary rules, and voted 12-0 to administer a private reprimand. Rule BV7.c. On 5 June 1985, however, the board met again. There were 11 members present, and it seems that some of the 11 had not been present at the 16 May meeting.

In any case, some of the members who had been on board in May were not in June. Specifically, the “reporting member” was not present in June. 2 At the June meeting, those present voted unanimously to “reconsider” the 16 May action, and to prefer charges against Brown. Those charges were preferred, and resulted in the matter now before us. It is Brown’s view that the 16 May vote of the review board was in some manner final, giving him a sort of “vested right” in a private reprimand* and that the ²²³ “reconsideration” in June produced the constitutional transgressions and other effects we have summarized.

Judge Messitte rejected these contentions, and so do we. Brown has not explained why he was denied equal protection. His former jeopardy claim is inapposite, because lawyer discipline proceedings are not criminal proceedings. Attorney Grievance Commission 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).

Nor need we engage in an extended discussion of what process is due at the review board level. Proceedings before the review board are confidential. Rule BV8. The respondent is not entitled to notice of a review board meeting.

Guidelines, § 6-206. Ordinarily, the respondent does not appear and is not represented before the review board. Sections 6-301, 6-303. The same is true with respect to Bar Counsel.

Section 6-303. We have characterized board proceedings as investigatory, informal, and similar to grand jury proceedings. Stewart, 285 Md. at 259 , 401 A.2d at 1030 . “[I]f a lawyer is given notice and the opportunity to defend in a full and fair hearing before a [judge], the question whether he was accorded due process of law by the Inquiry Panel and the Review Board is ordinarily immaterial.” Id. Stewart , indeed, may well dispose of Brown’s due process argument, but that is a question we need not decide.

This is because Brown’s notion that the board made a final decision in his favor, which could not be reconsidered, is simply wrong. On 16 May the board voted to reprimand Brown. A decision to this effect ordinarily is embodied in an “opinion” which is sent to Bar Counsel. Guidelines, §§ 6-501 through 6-507.

The reprimand is then either served on the respondent, Rule BV7.c, or delivered to him or her personally by the board. Guidelines, § 6-507. So far as the record reveals, none of these things occurred after the 16 May vote. In short, that vote was never implemented or made final by the procedures intended to achieve that purpose.

Therefore, there was no final action ²²⁴ for the board to “reconsider.” Its 5 June action, the vote to prefer charges, was properly implemented and was its only final decision in Brown’s case. The secret preliminary vote on 16 May vested no rights in Brown and the subsequent action in June denied him neither due process nor equal protection. Since the 16 May action was not a final determination, by no stretch of the imagination could it give rise to a claim of either res judicata or collateral estoppel, even if we assume that those doctrines might somehow apply to action of the review board. If Brown, by “estoppel,” means “estoppel by conduct,” the argument is equally unavailing.

That doctrine does not apply unless the conduct was relied upon to his or her detriment by the party asserting the estoppel. See Addressograph-Multigraph Corp. v. Zink, 273 Md. 277 , 329 A.2d 28 (1974). Brown never knew of the 16 May action until after charges had been filed, and thus could not have relied on it to his detriment. Brown’s reliance on § 6-409 of the Guidelines is likewise without merit.

That section, as it stood in May and June, 1985, dealt with reconsideration of a board decision on the basis of evidence not presented to the inquiry panel. It apparently was intended to apply only when the board had directed Bar Counsel to file charges, since § 6-409(A)(4) required a motion for reconsideration to be “received by the Chairman of the Review Board prior to the filing of charges by Bar Counsel” and § 6-409(C)(l) directed the chairman to “advise Bar Counsel to stay the filing of charges” when a proper motion to reconsider was received. Section 6-409 is simply inapplicable to the situation before us. In any case, as we have seen, the board’s June action was not in fact a reconsideration of any final action taken in May.

The May vote was preliminary; the final action occurred after the June vote. That the same persons who were present in June were not necessarily the same as those present in May is unimportant. The “reporting member,” it seems, was not ²²⁵ at the June meeting, and Brown makes much of this, arguing that the board at the June meeting might not have had sufficient information to take the action it did. We cannot believe that review board members, in the performance of their important function, would unanimously vote to prefer charges if they had reservations as to the adequacy of the information before them.

A substantial number of the members present in June must also have been present in May, when the “reporting member” reported. No doubt the inquiry panel recommendation, and other materials produced by that body, were available at the June meeting. Guidelines, §§ 6-404 through 6-406. Had members entertained doubts it would have been simple enough to defer a vote until the “reporting member” was present.

In this case, the “reporting member” had informed the board chairman that he did not feel strongly in favor of a private reprimand. There was a quorum present at the June meeting. Rule BV7.a. The vote to prefer charges complied with the numerical requirement of that rule.

We can detect no reason why any of the matters we have discussed deprived either Judge Messitte or this Court of subject matter jurisdiction over this case. Brown’s motion to dismiss is denied.

II

The Merits We must now sketch the factual background that gave rise to the charges against Brown. According to Judge Messitte’s findings, Brown began to represent Walter and Elmyra Hahn in 1973 or 1974. At that time they owned as tenants by the entireties two valuable farms in Frederick County, the “large” farm and the “small” farm. The latter was leased to Norman Todd, who also held an option to purchase the property.

Todd went into bankruptcy and listed the “small” farm as an asset of the bankruptcy estate. Brown was retained to extricate the farm from that proceeding, and did so successfully. In 1975 he prepared wills, and later, codicils for the Hahns. At about the same time, Brown advised the Hahns of tax problems that might arise if the Internal Revenue Service included both ²²⁶ farms in the estate of the first of the Hahns to die.

Pursuant to his advice, deeds were drawn and recorded whereby Mr. Hahn became the sole owner of the “large” farm and Mrs. Hahn the sole owner of the “small” one. Despite the disparate sizes of these properties, Brown obtained no independent appraisal of their values. Nor did he advise the Hahns to file either a federal gift tax return or an information schedule as part of their income tax returns. In 1976, Brown learned that Mrs. Hahn might be interested in selling the “small” farm.

Brown prepared a lease/option agreement in favor of a real estate partnership in which he was a general partner. The document disclosed the fact, although not the extent, of Brown’s partnership interest. After considerable discussion with Brown, family members, and other advisors, the Hahns executed it. The option was never exercised, although the partnership made net payments over the years, under the lease agreement, in excess of $100,000.

Elmyra Hahn died in 1978 and Brown qualified as the personal representative of her estate. Shortly after .that Mr. Hahn’s health deteriorated. At the request of the Hahns’ daughter, Brown arranged for the appointment of Robert Owen, the Hahns’ accountant, as guardian of Mr. Hahn’s property and estate. Mrs. Hahn’s will left a portion of her estate outright to Mr. Hahn and another portion to Mr. Hahn as trustee for others.

Because of Mr. Hahn’s physical condition, Brown arranged for Owen’s appointment as substitute trustee. Brown never discussed with Owen the latter’s duties as guardian or trustee. When Brown filed the first and final administration account for Mrs. Hahn’s estate, he failed to include the “small” farm as an asset. Moreover, he erroneously allocated the net estate between Mr. Hahn and the residuary trust.

And it was not until 1982 that he executed and recorded a deed conveying the “small” farm to Mr. Hahn’s guardian and to the substitute trustee. Additionally, while ²²⁷ Brown turned over all the personal assets of Mrs. Hahn’s estate to Owen, he failed to indicate which portions passed to Owen in his capacity as guardian and which went to him as substituted trustee. Moreover, the federal estate tax return Brown prepared for Mrs. Hahn’s estate contained a number of errors. Walter Hahn died in 1980 and Brown qualified as personal representative of his estate.

He received from Owen assets of Mrs. Hahn’s trust (stocks, bonds, and bank accounts) that he should not have received; he commingled these with assets of Mr. Hahn’s estate. He failed to see that Owen, as substitute trustee under Mrs. Hahn’s will, delivered trust assets to the beneficiaries promptly. That distribution did not occur until 1982. He delayed for over a year after Mr. Hahn’s death before seeing that a final guardianship account for Mr. Hahn was filed.

Brown also prepared a federal estate tax return for Mr. Hahn’s estate. In it he wrongly included assets that should have passed to the beneficiaries of Mrs. Hahn’s trust, as well as a gift that should not have been included. He understated the taxes, erred in the calculation of the tax on prior transfers, and improperly calculated commissions by claiming a 10 percent commission on the sale of real estate as well as the maximum statutory allowance under Md. Est. and Trusts Art., § 7-601, against a tax base that included the real estate. On the basis of this history (and we have only recounted the highlights), the Commission charged Brown with violating the following disciplinary rules: “DR 1-102 Misconduct. “(A) A lawyer shall not: (1) Violate a Disciplinary Rule. sje >je jje 4s Jjc ♦ (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.” ²²⁸ “DR 2-106 Fees for Legal Services. “(A) A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee.” “DR 5-104 Limiting Business Relations with a Client. “(A) A lawyer shall not enter into a business transaction with a client if they have differing interests therein and if the client expects the lawyer to exercise his professional judgment therein for the protection of the client, unless the client has consented after full disclosure.” “DR 6-101 Failing to Act Competently. “(A) A lawyer shall not: (1) Handle a legal matter which he knows or should know that he is not competent to handle, without associating with him a lawyer who is competent to handle it. (2) Handle a legal matter without preparation adequate in the circumstances. (3) Neglect a legal matter entrusted to him.” For purposes of further discussion, we may divide into two groups the specific acts that were said to demonstrate violations of these rules. The first group consists of instances as to which Judge Messitte found no violations.

These include alleged incompetence in the preparation of the Hahn wills (DR’s 1-102 (A)(6) and 6-101), alleged incompetence in severing the joint tenancies and related tax matters (id.), charges arising out of the transaction between Mrs. Hahn and Brown’s partnership (DR 5-104 (A)), failing to advise Owen of his duties as Mr. Hahn’s guardian (DR’s 1-102 (A)(6) and 6-101), and alleged incompetence in preparing Mrs. Hahn’s estate tax return (id.). Judge Messitte also found no violation of DR 1-102 (A)(5). 3 Bar Counsel has not excepted to any of these findings, some of which were based on lack of clear and convincing evidence, and others on failure of Bar Counsel to give adequate notice of the alleged violation in his petition ²²⁹ for discipline. See Bar Ass’n v. Cockrell, 270 Md. 686, 692-93 , 313 A.2d 816, 819-20 (1974); Rule BV9.c. The second group comprises the acts which Judge Messitte decided did constitute violations.

At page 50 of his “Findings of Fact, Conclusions of Law, and Recommendations,” he summarized these thus: “Brown’s violations of DR Rule 6-101 (A)(l)(2)(3) [incompetence] consist of [1] his failure to segregate assets due Mr. Hahn and the trust under Mrs. Hahn’s will; [2] his failure to discuss with the substitute trustee under Mrs. Hahn’s will his duties as such; [3] his omissions and errors in the preparation of Mrs. Hahn’s First and Final Account; [4] his detention of the trust assets over an extended period of time; [5] his failure to execute and record an appropriate deed to the legatees of Mrs. Hahn’s farm; [6] his failure to see to the prompt termination of Mr. Hahn’s guardianship following his death; and [7] his numerous erroneous inclusions and entries on Walter Hahn’s estate tax return.” Judge Messitte went on to find a violation of DR 1-102(A)(1) and to conclude that Brown’s “collective incompetence reflects upon his fitness to practice estate law, in violation of DR 1-102(A)(6).” As we have observed, Brown filed 13 exceptions to Judge Messitte’s