Attorney Grievance Commission v. Cockrell

³⁸⁰ COUCH, Judge. Acting pursuant to the provisions of Maryland Rule BV 9, Bar Counsel, on behalf of the Attorney Grievance Commission, filed a petition with us seeking disciplinary action against Paul J. Cockrell, a member of the Bar of this Court. The petition asserted that Cockrell violated Disciplinary Rules 1-102(A), (1), (4), (5), (6); 1 Disciplinary Rule 6-101 (A) (3); 2 Disciplinary Rule 7-101 (A), (1), (2), (3) 3 in his repre ³⁸¹ sentation of Mozella Ziglar. The petition also asserted that Cockrell, in his representations of Alice Tanner, violated Disciplinary Rules 1-102 (A) (1), (5), (6); Disciplinary Rule 6-101 (A) (3); and Disciplinary Rules 7-101 (A) (1), (2), (3).

It was further asserted that Cockrell violated Disciplinary Rules 1-102 (A) (1), (3), (4), (5), (6); Disciplinary Rules 9-102 (A) (1), (2)* 4 in his representation of various clients between January 1, 1982 and May 29, 1984. Finally the petition alleged that Cockrell violated Maryland Code, Art. 10, sec. 44, relative to escrow funds. Pursuant to Rule BY9 b, we referred the matter for hearing to a judge of the Third Judicial Circuit of Maryland. Following a hearing, the hearing judge made written findings of fact and conclusions of law in each of the three matters which, after reviewing the record, we adopt: “Findings of Fact: Ziglar Case “Pursuant to obtaining a decree of divorce, this Court by clear and convincing evidence finds Ms. Ziglar paid the ³⁸² Respondent $260.00.

A Bill of Complaint for a Divorce A Vinculo Matrimonii was drawn up but the decree was never finalized because of Respondent’s failure to serve the husband, pursuant to then-Maryland Rule 530 which states in part: Rule 530. Dismissal for Lack of Jurisdiction or Prosecution ..., C. For Lack of Prosecution — Exception. An action is subject to dismissal for lack of prosecution at the expiration of one year from the last docket entry other than an entry made under this Rule, Rule 124, or Rule 125, except that an action for divorce a mensa et thoro and for permanent alimony is subject to dismissal under this section only after two years from the last docket entry. In addition, we note that no effort was made by Respondent to serve by publication.

Mr. Cockrell testified: Her husband was never located, and on the question of the Daily Record, after we had problems locating him I told her, I said ‘We can run an order of publication, but that will take time.... I told her the better way would be to try to locate her husband, and that’s what happened to the case, Your Honor. (T. 39). In mitigation, Mr. Cockrell argued that he was just serving the best interest of his client: ...

If you can find your husband now, no problem, we can get it through earlier, but if I have to go through this procedure, it’s got to run in the paper 3 weeks in a row to get it through, and the expense involved____ (T. 39). Mr. Cockrell also argued that Ms. Ziglar’s purpose in contacting the Grievance Commission was not to file a complaint: ... She was simply trying to locate me. If she had contacted me at that point, I would have gone ahead and proceeded with it.

(T. 38). ³⁸³ Ms. Ziglar made repeated attempts to contact Respondent, but to no avail until the Attorney Grievance Commission intervened. At this point she was apprised that her case had been dismissed. She requested and received her $260.00 fee back from Mr. Cockrell. Conclusions of Law: Ziglar Case The Court finds by clear and convincing evidence that the Respondent violated the three disciplinary rules cited above [DR 1-102, DR 6-101, and DR 7-101] by his inattention to the case and by his failure to properly process the divorce action.

He did not keep his client informed and did not respond to her reasonable requests for information. However, the Court does not find by clear and convincing evidence that Respondent engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation. [DR 1-102(A)(4) ]. Findings of Fact: Tanner Case This Court finds by clear and convincing evidence that Respondent was presented with a plethora of professional problems in regards to Alice Tanner. And as Mr. Cockrell testified, undoubtedly he was treating her as a ‘whole person’ and ‘keeping her on this side of sanity’ as far as her relationship with her husband was concerned.

More specifically, however, he was asked to represent her when she was injured on August 26 and September 8, 1981 while riding an MTA bus (Court files, Petitioner’s Exhibits 11, 12). In the instant proceeding, William Edgar Carson, a Transit Casualty Company claims supervisor, testified as to the claim filed by Alice Tanner. Mr. Carson, in reading from his records, showed a letter of representation from Mr. Cockrell dated September 21, 1981. (Petitioner’s Exhibit 9).

Then his records reflected a series of phone calls made by the casualty company to Respondent which were never acknowledged. Finally, on January 20, 1983, Mr. Ed Brizendine, his supervisor, wrote a letter to ³⁸⁴ Mr. Cockrell informing him that a year and four months had passed and that the case would be closed if he was not advised to the contrary. Dear Mr. Cockrell: It has been a year and four months since we have received your letter of representation in regard to this case. To date we have received no documentation of any description, despite numerous efforts to contact you and your office.

If you are still interested in this case, please so advise and furnish documentation. If you are not interested please so advise, and we will close it____ (T. 101). Mr. Carson testified that no response was obtained and the file was closed on May 18, 1983. In response, Mr. Cockrell testified that he could not file a claim because, in turning the case over to his paralegals, he is not sure whether the medical report from Dr. Mitchell was received; and if received, was somewhere in the warehouse files: Q. Mr. Cockrell, it is true, is it not that none of your files demonstrate any medical records on Mrs. Tanner?

A. To my knowledge I never got it (Dr. Mitchell’s report). Certainly the records do not show, but that takes us back to the warehouse again. (T. 125, 126). Mr. Cockrell further testified that there was no other medical evidence of the accident other than Dr. Mitchell’s report.

In support of his efforts to contact Dr. Mitchell, Respondent submitted a letter from his office requesting the report (Respondent’s Exhibit 4). In support of his efforts to contact Ms. Tanner’s employers, Respondent submitted a letter drafted by his paralegal, Miss Haines (Respondent’s Exhibit 5). He then introduced a profile sheet on Ms. Tanner (Respondent’s Exhibit 6) and a series of letters dated July 9, 1984 (Respondent’s Exhibit 7), July 22, 1984 (Respondent’s Exhibit 9), and September 12, 1984 (Respondent’s Exhibit 10), informing Ms. Tanner that her case was still in the process of being settled. ³⁸⁵ Alice Tanner died on August 25, 1984 as a result of an automobile accident. (Petitioner’s Exhibit 8).

As to bringing a claim on behalf of the estate, Mr. Cockrell testified that it was a personal injury claim and without her deposition to introduce into evidence, everything would be hearsay: ... I’ve had some unfortunate experiences in prior cases like this, where you go to a lot of time, trouble and expense and everything, where there’s a missing ingredient ... it’s a personal injury matter, and without her deposition ... and she’s dead ... Everything that I have, practically, would be hearsay. (T. 124).

Therefore, when asked to respond to the Transit Casualty Company’s interrogatories, ‘he could not make out a case.’ Conclusions of Law: Tanner Case This Court finds by clear and convincing evidence that Respondent violated the three disciplinary rules cited earlier [DR 1-102, DR 6-101, and DR 7-101] by his neglect of a legal matter entrusted to him, by his failure to respond to the Transit Casualty Company’s request for documentation thereby causing the insurance claim to be dismissed, and by his failure to keep his client informed and to respond to her reasonable requests for information. The Allen Case The Respondent, by his acts or omissions in the Allen Complaint, was charged with violating the following Disciplinary Rules: Disciplinary Rule 1-102 Misconduct. (A) A lawyer shall not: (1) Violate a Disciplinary Rule. (3) Engage in illegal conduct involving moral turpitude. ³⁸⁶ (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. Disciplinary Rule 9-102 Preserving Identity of Funds and Property of a Client. (A) All funds of clients paid to a lawyer or a law firm other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows: (1) Funds reasonably sufficient to pay bank charges may be deposited therein.

(2) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved. Code of Professional Responsibility, Maryland Rule 1230, Appendix F, Annotated Code of Maryland, and Article 10, Section 44 of the Annotated Code of Maryland. Findings of Fact: The Allen Case Several complaints alleging commingling of funds have been lodged against the Respondent in what has been designated ‘the Allen Complaint.’ It was that complaint, brought before the Grievance Commission on May 29, 1984, that gave rise to the investigation into other escrow accounts held in Mr. Cockrell’s name. Deposits into the First National Bank of Maryland account, the ‘Allen ³⁸⁷ Complaint’ account, by checks drawn on other accounts, alerted the Grievance Commission to the Union Trust and Equitable Trust accounts.

Respondent entered a continuous objection to the inclusion of the above-named bank records in the ‘Allen Complaint’ at a bench conference (T. 137) and later in a Supplemental Memorandum, dated May 23, 1985. Relying strenuously on In Re Ruffalo, [ 390 U.S. 544 ] 83 S.C. 1222 [ 20 L.Ed.2d 117 ] (1968), and Bar Ass’n. v. Cockrell, 274 Md. 279 [ 334 A.2d 85 ] (1975), Respondent contended that he did not receive proper notice of these charges. He also argued that these ‘additional matters’ should have been remanded to the Inquiry Panel. Turning to the notice issue, the Court finds that Ruffalo and Cockrell are not supportive of Respondent’s position.

In Ruffalo, additional charges were brought against the accused attorney on the basis of his testimony in the state court proceeding. In Maryland, the proceedings referred to in Ruffalo begin when the Petition for Disciplinary Action is filed in the Court of Appeals. Attorney Griev. Comm’n. v. McBurney, 282 Md. 116, 124 [ 383 A.2d 58 ] (1978).

The United States Supreme Court held that this absence of fair notice as to the precise nature of the charges deprived the attorney of procedural due process. Similarly in Cockrell , the original charges were based on the testimony Cockrell had given at the first Panel Hearing. The disposition of the original complaint was referred to a new panel of judges for consideration of the supplemental charges. The Court of Appeals, relying on Ruffalo, concluded that these new charges could not form the basis for disciplinary action because the evidentiary foundation was ‘tainted,’ supra [274 Md.] at 287, [ 334 A.2d 85 ].

Judge Digges, supra [274 Md.] at 285 [ 334 A.2d 85 ], quoted for the Court from Ruffalo, supra [390 U.S.] at 551 [ 88 S.Ct. at 1226 ]: The charge must be known before the proceedings commence. They become a trap when, after they are ³⁸⁸ underway, the charges are amended on the basis of the testimony of the accused. He can then be given ■ no opportunity to expunge the earlier statements and start afresh. Here, unlike the situation in Cockrell, supra, Respondent has known from the outset the nature of the charges against him.

Respondent knew he was being charged with commingling of clients’ funds at the Inquiry Panel proceedings. The purpose of an Inquiry Panel is investigatory in nature and informal to the extent that the rules of evidence need not apply. Attorney Griev. Comm’n. v. Stewart, 285 Md. 251, 259 [ 401 A.2d 1026 ] (1979); McBurney, supra.

As to notice, the above-cited cases stated: More important, if a lawyer is given notice and the opportunity to defend in a full and fair hearing before a three-judge panel, 2 the question whether he was accorded due process of law by the Inquiry Panel and the Review Board is ordinarily immaterial. Accordingly, we find that Respondent was afforded notice and opportunity to defend following the institution of disciplinary proceedings in the Court of Appeals. Indeed, the charges brought in Paragraphs 23-26, supra, are not limited to the ‘Allen Complaint’ but address the complaints of clients in general. At this point, we should also address Respondent’s reliance on Ruffalo to support his allegations that Disciplinary Proceedings are quasi-criminal in nature thereby entitling the accused attorney to a claim of privilege.

This reliance led Respondent to object to the introduction of his deposition into testimony. (T. 52). This Court