Attorney Grievance Commission v. Harris

COUCH, Judge. The Attorney Grievance Commission (“Commission”), acting through Bar Counsel, filed a petition seeking disciplinary action against the respondent Alan Edgar Harris. The petition alleged that Harris violated certain disciplinary rules in his representation of three unrelated clients, Delores Green, Grady Jacks, Sr., and Anthony Jeter. Pursuant to Maryland Rule BY 9, we referred the matter to Judge Arrie W. Davis of the Circuit Court for Baltimore City.

In his memorandum of findings of fact and conclusions of law, Judge Davis rejected some of the Commission’s charges, but nevertheless concluded that Harris had violated the following rules of the Code of Professional Responsibility: DR 1-102(A)(1), DR 6-101(A)(8), DR 7-101(A)(1) in his representation of Delores Green; and DR ²⁰⁰ 1-102(A)(1), DR 5-103(B), DR 9-102(B)(3) in his representation of Grady Jacks, Sr. 1 Harris has filed seventeen exceptions and Bar Counsel has filed one exception to Judge Davis’s memorandum. Exceptions 16 and 17 involve two motions to dismiss the disciplinary petition. We shall first address the motions to dismiss. I Harris’s Motions to Dismiss Exception 16 In the first motion, argued initially before Judge Davis and now before this Court, Harris attacks in several respects the proceedings of the Inquiry Panel and the Review Board.

Like the trial court, we reject his arguments. 2 Harris argues initially that Bar Counsel improperly informed the Inquiry Panel of prior hearings and warnings issued to respondent in three other cases, and also advised the Panel that there was a “pattern of misconduct” involved. Bar Counsel’s action, however, is specifically sanctioned by the Attorney Grievance Commission’s Administrative and Procedural Guidelines (“Guidelines”). Section 4-203 states in part: ²⁰¹ “Transmittal of File by Bar Counsel Upon the appointment of a Panel, Bar Counsel shall promptly forward the file and record to the Panel Chairman and other Panel members. If Bar Counsel determines that the present complaint or complaints establish a pattern of misconduct similar to past misconduct for which sanctions or warnings have been issued to the Respondent, the file and record shall include a statement of prior sanctions imposed on the Respondent and also a statement of prior warnings issued to the Respondent.

Prior sanctions include disbarments, suspensions, and public and private reprimands.” We find this contention to be without merit. 3 We next consider Harris’s due process contentions, 4 which we summarize as follows: 1) respondent was denied the opportunity to participate in the selection of the Inquiry Panel hearing the complaints against him; 2) a single Inquiry Panel improperly considered four entirely unrelated complaints against respondent, depriving him of a “fair and impartial hearing before an unbiased body, unaffected by notice or knowledge of any complaint other than the one it initially was charged to hear ... ”; 3) respondent was precluded from taking part in Review Board proceedings, including the selection of participating members; and 4) the Attorney Grievance Commission improperly performed as an investigative agency, a prosecuting agency, and a “se ²⁰² lecting agency with respect to the persons who [were] to constitute^ the Inquiry Panel and the Review Board____” 5 Harris’s arguments are clearly without merit. In Attorney Grievance Commission v. Stewart, 285 Md. 251, 259 , 401 A.2d 1026, 1030 , cert. denied, 444 U.S. 845 , 100 S.Ct. 89 , 62 L.Ed.2d 58 (1979), we said that proceedings conducted by the Inquiry Panel and the Review Board are similar to the proceedings conducted by a grand jury in criminal cases. They are investigatory in nature—designed to aid in determining whether disciplinary action is warranted—and informal to the extent that the rules of evidence need hot apply. Id., 401 A.2d at 1030 .

See Attorney Grievance Commission v. Brown, 308 Md. 219, 223 , 517 A.2d 1111, 1113 (1986). Moreover, any irregularity in the proceedings before the Inquiry Panel and the Review Board ordinarily will not amount to a denial of due process, as long as the lawyer is given notice and an opportunity to defend in a full and fair hearing following the institution of disciplinary proceedings in this Court. Maryland State Bar Association v. Frank, 272 Md. 528, 538 , 325 A.2d 718, 723-24 (1974); Bar Association of Baltimore v. Posner, 275 Md. 250, 255 , 339 A.2d 657, 659-60 , cert. denied, 423 U.S. 1016 , 96 S.Ct. 451 , 46 L.Ed.2d 388 (1975). See Stewart, 285 Md. at 259 , 401 A.2d at 1030 ; Brown, 308 Md. at 223 , 517 A.2d at 1113 .

In the instant case, Harris was afforded notice and an opportunity to defend in a full and fair hearing following the institution of disciplinary proceedings in this Court. Accordingly, his various contentions asserting a denial of due process in the Inquiry Panel and Review Board proceedings are without merit. The reasoning of Stewart also disposes of Harris’s contention that he did not receive notice before a member of the Inquiry Panel recused himself. Likewise, we reject his ²⁰³ assertion that he should have been notified that a new Panel member would be replacing another member at the upcoming Inquiry Panel proceedings.

If Harris believed any member serving on the Panel should have been disqualified because of conflicting interests, he could have given written notice to the Panel Chairman explaining the basis of the allegation, with copies to the Chairman of the Inquiry Committee and Bar Counsel. Guidelines, § 5-101(b). There is nothing in the record to indicate that he took that action. Moreover, the trial court concluded, and we agree, that Harris has failed to demonstrate a conflict of interest on the part of any Panel member, or any prejudice to himself as a result of the substitution.

Finally, Harris claims the disciplinary petition charged him “with violations as to which he was not charged before the Inquiry Panel and as to which that Panel made no findings____” We reject this contention. Formal charges of misconduct do not exist against an attorney until a petition is docketed in this Court. Attorney Grievance Commission v. Bailey, 285 Md. 631, 637 , 403 A.2d 1261, 1265 (1979). As long as these charges are “sufficiently clear and specific” so as to reasonably inform the respondent what he is compelled to answer for and defend against, Md. Rule BV 9 c; Attorney Grievance Commission v. Cockrell, 270 Md. 686 , 313 A.2d 816 (1974), and there are no substantive transgressions of the Commission’s own Guidelines or the BV Rules, the respondent is generally precluded from contesting what occurred in the preliminary stages before the Inquiry Panel and the Review Board leading to the filing of charges in this Court.

See Stewart, 285 Md. at 259 , 401 A.2d at 1030 . See generally Attorney Grievance Commission v. McBurney, 282 Md. 116 , 122-24 & n. 1, 383 A.2d 58 , 62-3 & n. 1 (1978). ²⁰⁴ Accordingly, the respondent’s first motion to dismiss is denied. 6 Exception 17 In his second motion to dismiss, Harris alleges that Bar Counsel had an improper ex parte communication with a member of the Inquiry Panel that was considering the complaints against respondent. He argues: “Bar Counsel, in a ex parte manner and without informing Respondent or ... his counsel, improperly, impermissibly and unethically attempted to affect and/or did affect the proceedings, decision and/or recommendation of said panel and/or its disposition of the matters entrusted to it herein by seeking to change and/or by persuading the panel to change its recommendation herein with respect to the respective complaints of said Delores Green and Anthony Jeter.” After a hearing, the trial court rejected Harris’s contention. Harris has renewed his motion before this Court.

In support of his contention, Harris submitted an internál memorandum from Bar Counsel’s files describing the communication between Bar Counsel and the Inquiry Panel member. It reads as follows: “TO BC Docket No. 84-247-4-2 Green/Harris BC Docket No. 84-96-4-2 Jeter/Harris FROM Melvin Hirshman Bar Counsel On July 23, 1985, I read the report of four (4) cases against this Respondent from the Inquiry Panel. The two (2) cases referred to above were reported as recom ²⁰⁵ mending that the Respondent be reprimanded. The transcript of their findings of May 6,1985, indicated that they found the conduct such that he should not receive discipline but should receive a reprimand.

On July 23, 1985,1 called Katherine Bishop, Chairman of the Panel, and went over the BY Rules to her and explained the difference to her between a warning and a reprimand. She said that she would confer with the other members of her Panel and advise me in a day or so what it was that they intended in these two (2) cases. The two (2) cases in which they recommended charges and a dismissal are not involved with the problem. Mr. Grossman advises me that if the Panel indicates that warnings rather than reprimands were meant, then we will appeal this matter to the Commission at its next meeting.” It is clear from this memorandum, which was written by Bar Counsel to his own files, that Harris’s contention must fail.

According to the memorandum, the Inquiry Panel in the Green and Jeter cases apparently recommended a disposition which was not recognized in the BV Rules. Upon reading this recommendation, Bar Counsel, by telephone, contacted the chairperson of the Panel to explain the permissible dispositions available under the Rules. The memorandum also reveals that Glenn Grossman, Assistant Bar Counsel, recommended to Bar Counsel that an appeal be filed if the Inquiry Panel subsequently indicated that “warnings rather than reprimands were meant.” The record is devoid of any evidence that Bar Counsel attempted to influence the Inquiry Panel in any way to come forward with a particular outcome. Accordingly, the respondent’s second motion to dismiss is denied.

II Complaint of Delores Green Exceptions Nos. 1, 6, 7, 8, 13, H According to Judge Davis’s findings, the Green complaint relates to Harris’s representation of Delores Green in a civil action against Action T.V. Rental, Inc. (“Action T.V.”), and ²⁰⁶ one of Action TV’s employees, James Alexander, for Alexander’s allegedly wrongful repossession of a television set which Green was renting (with an option to purchase) from Action TV. The crux of Green’s complaint, lodged with the Attorney Grievance Commission sometime in 1984, was that her case against the defendants was dismissed for lack of prosecution. A settlement between Harris, on behalf of Green, and the attorney for Action TV, John H. Doud, III, was eventually reached in 1985. As part of the settlement, Green received $750 and a new television set from the defendants.

In addition, Harris gave Green $600. Based on the foregoing, the Commission charged Harris with violating the following disciplinary rules: Disciplinary Rule 1-102 “Misconduct. (A) A lawyer shall not: (1) Violate a Disciplinary Rule. (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 6-101 “Failing to Act Competently. (A) A lawyer shall not: (2) Handle a legal matter without preparation adequate in the circumstances. (3) Neglect a legal matter entrusted to him.” Disciplinary Rule 7-101 “Representing a Client Zealously.

(A) A lawyer shall not intentionally: (1) Fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules, except as provided by DR 7-101(B). A lawyer does not violate this Disciplinary Rule, however, by acced ²⁰⁷ ing to reasonable requests of opposing counsel which did not prejudice the rights of his client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process. (2) Fail to carry out a contract of employment entered into with a client for professional services, but he may withdraw as permitted under DR 2-110, DR 5-102, and DR 5-105. (3) Prejudice or damage his client during the course of the professional relationship, except as required under DR 7-102(B).” Judge Davis found that the case had been dismissed prior to settlement and concluded: “While it is true that Delores Green agreed to the settlement and may have received all to which she was entitled in her case against Action TV Rental, it is difficult to know with any certainty whether Green’s position was compromised by virtue of the dismissal of her case.

It should be noted that the Respondent did make a $600.00 contribution to the settlement of Green’s case which shows that he desired to make reparations; however, the contribution may also be indicative of Respondent’s belief that he was less than diligent in his representation of Green. As a result of the foregoing, I find that Respondent failed to represent his client zealously through reasonably available means permitted by law in violation of Disciplinary Rule 7-101(A)(l) and that Respondent neglected a legal matter entrusted to him in violation of Disciplinary Rule 6-101(A)(3).” Judge Davis further concluded that Harris did not violate DR 1-102(A)(4), (5) and (6), DR 6-101(A)(2), and DR 7-101(A)(2) and (3). Exception No. 1 Harris contends that Judge Davis’s factual finding that “[t]he case was automatically dismissed pursuant to ²⁰⁸ Judge Greenfeld’s Order of March 24th, 1982” is not supported by clear and convincing evidence. In a disciplinary action, factual findings are prima facie correct and will not be disturbed on appeal unless determined to be clearly erroneous.

Attorney Grievance Commission v. Gilbert, 307 Md. 481, 490 , 515 A.2d 454, 458 (1986); Attorney Grievance Commission v. Kemp, 303 Md. 664, 674 , 496 A.2d 672, 677 (1985) and cases cited therein. Based on our review of the record, we are unable to say that Judge Davis’s finding is clearly erroneous. Judge Greenfeld’s Order of March 24,1982, the second of two orders suspending operation of Md. Rule 530 (now Md. Rule 2-507), provides: “Plaintiff’s Motion to Suspend Operation of Md. Rule 530 GRANTED. Plaintiffs should not be penalized for the Court’s failure to rule on Defendant’s Demurrer, which was previously filed.

Md.Rule 530 shall be suspended for 12 months from today’s hearing. If the case is not disposed of with said 12 month period, it shall be automatically dismissed for lack of prosecution." (Emphasis added). A docket entry on the Green file jacket, dated March 25, 1983, provides: “DISMISSED under Rule 530 of the Maryland Rules of Procedure for lack of prosecution. Judgment absolute in favor of the Defendants) for costs of suit.” Harris argues that Ms. Green’s case was “still alive on the docket” when the settlement was reached between Green and Action T.Y. In support of this argument, Harris contends that the:. “court clerk’s office had erroneously issued an untimely notice of contemplated dismissal of the case under former Maryland Rule 530 before the requisite one year’s time, which triggered operation of that rule, had expired.

Respondent had filed a motion raising this defect. That occasioned the filing of a motion ne recipiatur by the defendant in the case. Those motions still were pending, ²⁰⁹ and thus the case had not been finally dismissed, when it was settled by the respondent, Ms. Green having consented to the