Attorney Grievance Commission v. Hallmon

RODOWSKY, Judge. The respondent, Morgan Joseph Hallmon (Hallmon), has been found to have assisted an unlicensed person in the unauthorized practice of law in violation of the Maryland Lawyers’ Rules of Professional Conduct, Rule 5.5(b). 1 That violation involved a hearing before a Zoning Hearing Officer for Prince George’s County. Investigation of that complaint led to further charges and findings of violations, namely, failure to respond to a demand for information by Bar Counsel in violation of Rule 8.1(b), 2 and failing to maintain an escrow ³⁹⁴ account in violation of various requirements, including Maryland Code (1989, 1995 Repl.Vol.), §§ 10-302, 10-304 and 10-307 of the Business Occupations and Professions Article (BOP). 3 Hallmon was admitted to the District of Columbia bar in 1989 and to the bar of this Court in 1990. For approximately eighteen months ending in December 1990 Hallmon was employed as counsel for a non-profit organization in the District of Columbia.

During that employment Hallmon had met W. Eric Cloud, an attorney admitted in the District of Columbia and in Pennsylvania. Eric Cloud practiced law under the apparent firm name of Cloud & Henderson. 4 Eric Cloud’s legal stationery lists an address in Largo, Maryland as his principal office for the practice of law. In the right-hand margin that stationery also shows an address on Bladensburg Road, N.E., as the location of Cloud’s District of Columbia office. The Largo address seems to be the residence of Eric Cloud and his wife, Carole.

Carole Cloud is a law school graduate who is not admitted to practice in any jurisdiction, although not for want of having ³⁹⁵ tried. She is the self-described office manager and coordinator for her husband’s practice. In early 1991 Eric Cloud and Hallmon entered into an arrangement under which Hallmon would represent the clients of Eric Cloud who required counsel admitted in Maryland. One of Eric Cloud’s clients was The Church of the Great Commission (the Church) where the Clouds were members of the congregation.

The Church is located in the municipality of District Heights, Prince George’s County, where the Church also operates a small day school and a day care nursery on its premises. In 1986 when it was named Parkway Baptist Church, the Church had obtained a special exception for those operations, following a zoning hearing at which Eric Cloud, accompanied by a Maryland attorney, had appeared on behalf of the Church. For the school year beginning in September 1992 the Church sought to increase its enrollment to sixty-two day care children and thirty-eight private school students. This plan necessitated a “departure” from parking space requirements amounting to nineteen spaces over and above such departures previously approved.

The hearing on the requested special exception was held in September 1992 before Richard A. Romine (Romine), a Zoning Hearing Examiner for Prince George’s County. Hallmon appeared at that hearing as counsel for the Church. There was no fee to Hallmon or to Eric Cloud for the representation. There was no opposition to the requested departure.

District Heights supported the application, subject to a condition that was unobjectionable to the Church. The technical staff of the National Capital Park and Planning Commission (the Commission) recommended approval of the proposal, and the Prince George’s County Planning Board agreed with the staffs recommendation. The special exception was recommended by the hearing examiner, whose decision became final in March 1993 in accordance with § 27-312 of the Prince George’s County Code. ³⁹⁶ Shortly after the hearing before him, Romine filed a complaint with Bar Counsel raising the issue of unauthorized practice of law by Carole Cloud in connection with the Church’s 1992 special exception proceedings. Charges flowing out of that conduct, together with the additional charges developed in the course of the investigation, were referred for hearing to Judge Graydon S. McKee, III of the Circuit Court for Prince George’s County.

Judge McKee found that Hallmon committed the charged violations. The matter is now before this Court on Hallmon’s exceptions to Judge McKee’s report. I Assisting Unauthorized Practice BOP § 10-101(h)(1) defines “Practice law” to mean “to engage in any of the following activities: (i) giving legal advice; (ii) representing another person before a unit of the State government or of a political subdivision; or (in) performing any other service that the Court of Appeals defines as practicing law.” In the instant matter Carole Cloud prepared the application for special exception, signing Hallmon’s name and placing her initials behind that signature. She prepared the statement of justification for the special exception, and she prepared and signed in Hallmon’s name a letter requesting expedited handling of the application.

Hallmon testified that he approved “most of’ the papers filed in the case after reviewing them over the telephone with Carole Cloud whom he then authorized to sign his name. After reviewing this evidence, Judge McKee made no finding rejecting Hallmon’s testimony. It is undisputed that Carole Cloud met with the representatives of the Church and was the person who met on behalf of the Church with the technical staff of the Commission. None of the foregoing, in and of itself, supports finding a violation of Rule 5.5. ³⁹⁷ The finding is supported, however, by the transcript of the hearing before Examiner Romine.

Before addressing that evidence it will be helpful to review the current state of the law concerning the use by attorneys of laypersons in roles commonly described as “law clerks,” “paralegals,” or “legal assistants.” This Court has always found it difficult to craft an all encompassing definition of the “practice of law.” To determine what is the practice of law we must look at the facts of each case and determine whether they “ ‘ “fall[ ] within the fair intendment of the term.” ’ ” In re Application of Mark W., 303 Md. 1, 8 , 491 A.2d 576, 579 (1985) (quoting Grievance Comm. v. Payne, 128 Conn. 325, 329 , 22 A.2d 623, 625 (1941)). The purpose of Rule 5.5 “is to protect the public from being preyed upon by those not competent to practice law — from incompetent, unethical, or irresponsible representation.” In re Application of R.G.S., 312 Md. 626, 638 , 541 A.2d 977, 983 (1988). That “goal ... is achieved, in general, by emphasizing the insulation of the unlicensed person from the public and from tribunals such as courts and certain administrative agencies.” Id. To 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.” In re Discipio, 163 Ill.2d 515 , 206 Ill.Dec. 654, 658 , 645 N.E.2d 906, 910 (1994); Louisiana State Bar Ass’n v. Edwins, 540 So.2d 294, 299 (La.1989) (“Functionally, the practice of law relates to the rendition of services for others that call for the professional judgment of a lawyer.”). “Where trial work is not involved but the preparation of legal documents, their interpretation, the giving of legal advice, or the application of legal principles to problems of any complexity, is involved, these activities are still the practice of law.” Lukas v. Bar Ass’n of Montgomery County, 35 Md.App. 442, 448 , 371 A.2d 669, 673 , cert. denied, 280 Md. 733 (1977) (quoting F.T. vom Baur, Administrative ³⁹⁸ Agencies and Unauthorized Practice of Law, 48 A.B.A. J. 715 , 716 (1962)).

Both Rule 5.5 and case law allow lawyers to employ law clerks and paralegals without the lawyers’ assisting in the unauthorized practice of law. The Rule 5.5 comment states that the rule “does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work.” In addition, this Court has rejected a restrictive approach under which “[l]aw clerks ... who undertake various tasks under the supervision of licensed lawyers” might be engaged in the unauthorized practice of law. In re Application of R.G.S., 312 Md. at 636, 639-40 , 541 A.2d at 982, 983-84 . The legal profession has a long history of utilizing the services of knowledgeable secretaries and of law clerks.

But the view has always been that a legal assistant’s “work [is] of a preparatory nature, such as research, investigation of details, the assemblage of data and other necessary information, and such other work as will assist the employing attorney in carrying the matter to a completed product, either by his personal examination and approval thereof or by additional effort on his part. The work must be such, however, as loses its separate identity and becomes either the product, or else merged in the product, of the attorney himself.” Ferris v. Snively, 172 Wash. 167, 176-77 , 19 P.2d 942, 945-46 (1933). The American Bar Association similarly stresses the importance of attorney supervision of paraprofessionals in its definition of a legal assistant. “ ‘A Legal Assistant is a person, qualified through education, training, or work experience, who is employed or retained by a lawyer, law office, governmental agency, or other entity in a capacity or function which involves the performance, under the ultimate direction and supervision of an attorney, of specifically-delegated substantive legal ³⁹⁹ work, which work, for the most part, requires a sufficient knowledge of legal concepts that, absent such assistant, the attorney would perform the task.’ ” NonLawyer Activity in Law-Related Situations 52 (A.B.A. Comm’n on NonLaw. Prac. ed.1995) (quoting A.B.A., Minutes of the Board of Governors 5 (Feb. 6-7, 1986)) (emphasis added).

Those who advocate the expanded use of legal assistants acknowledge that “[a]dequate supervision is an ethical requirement.” A.G. Greene & K. Williams-Fortin, Expanding the Role of the Legal Assistant — Why Do It?, in Leveraging With Legal Assistants 6, 8 (A.B.A. Sec. of Law Prac. Mgmt., A.G. Greene ed., 1993). “The level of supervision may vary, depending on the type of work involved and the competence of the legal assistant, but it must always be present.” Id. The New Jersey Supreme Court made a detailed analysis of the work of paralegals in In re Opinion No. 24 of the Comm. on the Unauthorized Practice of Law, 128 N.J. 114 , 607 A.2d 962 (1992). The court stated that “[t]here is no question that paralegals’ work constitutes the practice of law.” 607 A.2d at 966 .

Whether paralegals engage in the unauthorized practice of law depends on whether they are adequately supervised by an attorney. Id. at 963, 969. In New Jersey attorneys may delegate legal work to paralegals “if they maintain direct relationships with their clients, supervise the paralegal’s work and remain responsible for the work product.” Id. at 969. If the “attorney is not directly supervising [the paralegal’s work,]” or “the supervision is illusory because the attorney knows nothing about the field in which the paralegal is working,” the paralegal is engaged in the unauthorized practice of law.

Id. That New Jersey opinion also cites guidelines that several states had adopted. For example, in Colorado, a paralegal’s work is not the unauthorized practice of law if “the lawyer establishes the attorney-client relationship, ... maintains control of all client matters[,]” supervises performance of the paralegal’s duties, and reviews the paralegal’s work product, ⁴⁰⁰ and if the paralegal’s work “merge[s] with and becomes part of the attorney’s work product,” without the paralegal’s exercising unsupervised legal judgment. Id. at 972.

Colorado allows client contact by the paralegal “once the attorney-client relationship has been established.” Id. at 973. The New Jersey court noted that the Bars of Michigan, Missouri and New York had adopted similar requirements. Id. Law clerks and paralegals perform a variety of services for attorneys but they may not give legal advice, accept cases, set fees, appear in court, plan strategy, make legal decisions, or “chart the direction of a case.” A.G. Greene & K. Williams-Fortin, Expanding the Role of the Legal Assistant— How Do You Make It Work?, in Leveraging With Legal Assistants at 18, 19.

The authors opine that under the supervision of a licensed attorney, a legal assistant, for example, may obtain facts from the client, communicate information to the client, interview witnesses, “perform[ ] limited research to assist the lawyer with the legal analysis,” obtain documents, obtain photographs, prepare summaries, prepare chronologies, prepare itemization of claims, prepare drafts of pleadings, prepare drafts of interrogatories and of production of document requests, prepare drafts of responses to discovery requests, prepare outlines for the lawyer to use in deposing a witness, index deposition transcripts, and prepare summaries of the evidence. Id. at 20. The key in all of these examples is supervision. The attorney may “not under any circumstance delegate to [a law clerk] the exercise of the lawyer’s professional judgment in behalf of the client....” Louisiana State Bar Ass’n v. Ed-wins, 540 So.2d at 300 .

Thus, in Attorney Grievance Comm’n v. James, 340 Md. 318 , 666 A.2d 1246 (1995), where we found that a suspended attorney was practicing law as a purported paralegal, we held that the record supported the hearing judge’s rejection of the contention that the purported employer was “the supervising attorney” and that the suspended attorney was the paralegal. Id. at 332-33 , 666 A.2d at 1252-53 . ⁴⁰¹ An essential function of the lawyer in a special exception application of the subject type is evaluation of the data that has been gathered by lay assistants, by the client, and by the Commission’s staff in order for the lawyer to determine whether the data presents a sufficient and persuasive case. Here the information-gathering and communicating contacts by Carole Cloud with the client and with the Commission staff were not the practice of law. Nevertheless, the record before Examiner Romine supports finding that Hallmon never applied his legal knowledge and training to evaluating the presentation that had been worked up by Carole Cloud.

We quote liberally from the transcript. “EXAMINER: ... Who is here on behalf of the applicant? “MR. HALLMON: We all are. I am Morgan Hallmon, the supervising attorney representing the Church of the Great Commission.

And, in addition, I have my law clerk and associate, Carole Cloud, who has been handling the day-to-day details; Mr. Gibson, who is the overseer of the actual project at the ... church. “EXAMINER: Okay. Well, you can set up as you wish. “MR. HALLMON: Thank you. “EXAMINER: Just give me a short-line appearance, you know, of your appearance in the record. Give me your address and your phone number....

And we will mark Mr. Hallmon’s entrance of his appearance as Exhibit R-25. Okay, Mr. Hallmon. “MR. HALLMON: I will defer to my associate, Ms. Cloud. “EXAMINER: Are you an attorney? “MS. CLOUD: I am not licensed in Maryland. “EXAMINER: Are you licensed anywhere? “MS.

CLOUD: No.... “MR. HALLMON: However, I am licensed to practice in the state of Maryland and the District of Columbia. ⁴⁰² “EXAMINER: Is that your signature? “MR. HALLMON: I have authorized my law clerk to— “MR. HALLMON: But I am Morgan Hallmon.

If you would like, I shall show you my Bar card, and you can check with the Maryland Bar with respect to my admission to— “EXAMINER: I already have, Mr. Hallmon. “MR. HALLMON: Okay, thank you. “EXAMINER: And I have already checked on you too, Ms. Cloud. “MS. CLOUD: All right, and I have initialed everything too. “MR. HALLMON: With all due respect, I am not quite sure if I understand the purpose of the previous exercise.

Can you clarify that for the record? “EXAMINER: Well, I just like to know who is doing business before me. “MR. HALLMON: Okay, all right. Okay. “EXAMINER: Okay. Now you may proceed as you wish. “MR.

HALLMON: Thank you. I will defer to my law clerk, Ms. Cloud. “EXAMINER: As for what? “MS. CLOUD: Coordinator. “MR. HALLMON: As coordinator. “EXAMINER: For what? “MR.

HALLMON: Well— “EXAMINER: Is she going to be a witness? “MR. HALLMON: No. Let me point out that this is my first time attending such a hearing. Therefore, I am not familiar with the procedure. It was my understanding that there would be a Staff Report and that we would be apprised of the findings, and if there were questions which you had, we would answer those.

I was not aware of the fact that we were expected to make a presentation, but if that is your request, then we shall proceed. We have an ⁴⁰³ application before the Commission, and we are here to respond to any questions that you may have. “EXAMINER: I take it, Mr. Hallmon, then that you have had very little involvement with the case until today? “MR. HALLMON: With respect to day-to-day matters, I have been aware of what has been going on in the case. That is correct.

Yes, I have deferred to Ms. Cloud, giving her responsibility for that and she has kept up with that.” The examiner then sought to elicit from Hallmon the specifics of the latter’s participation in the case preparation. “MR. HALLMON: Well, my — as a matter of fact, until you [tell] me the purpose, I’m sorry. I decline to answer the question. “EXAMINER: That’s fine, good. Okay.

Now you may proceed however you want to proceed. “MR. HALLMON: Okay. How would you like us to proceed? “EXAMINER: Mr. Hallmon, you are the attorney for the