Attorney Grievance Commission v. James

RODOWSKY, Judge. This opinion addresses a suspended attorney’s non-compliance with the order of suspension. In Attorney Grievance Comm’n v. James, 333 Md. 174 , 634 A.2d 48 (1993) (James II), we suspended Richard Allen James (James) for one year. This continuation of James II arises under Maryland Rule BV13.a.2.

That rule in relevant part provides that “[u]pon expiration of the period of suspension specified in the order, the Clerk of the Court of Appeals shall replace the name of the attorney upon the register of attorneys in that Court, and the attorney may practice law, only after (a) the attorney files with the Bar Counsel a verified statement that the attorney has complied in all respects with the terms of the suspension and (b) Bar Counsel notifies the Clerk that the statement has been filed and Bar Counsel is satisfied that the attorney has complied with the terms of the suspension.” The effective date of James’s suspension was January 12, 1994. Shortly prior to January 12, 1995, James filed an affidavit with Bar Counsel declaring that he “ha[d] complied in all respects with the terms of the suspension.” On January 9, 1995 Bar Counsel dispatched one of that office’s investigators to 7500 Greenway Center Drive, Suite 110, Maryland Trade Center, Greenbelt, Maryland, the address of James’s principal office for the practice of law in this State during the proceedings leading to his suspension. That office building’s directory listed under the letter “J” the name “James, Richard Allen, Attorney at Law, 110.” The investigator returned to the building “several times” between January 9 and February 6. On each occasion the building directory listing for James remained unchanged.

On January 18, 1995 Bar Counsel filed with this Court James’s affidavit together with Bar Counsel’s response, averring in part that James “has violated the terms of his suspen ³²¹ sion by engaging in the practice of law during the period of this suspension.” This Court, by order of February 6, 1995, referred the matter to Judge Graydon S. McKee, III of the Circuit Court for Prince George’s County to conduct an evidentiary hearing, to make appropriate findings, and to refer the matter back to this Court for our further consideration. The investigator returned to the office building in Greenbelt on March 1,1995 to find that the directory listing for James as an attorney-at-law had been removed. Further, the name of Eugene M. Brennan, Jr. (Brennan) had been newly listed as an attomey-at-law who could be found in Suite 110. The hearing before Judge McKee was held on March 9.

James maintained, in essence, that the law practice conducted out of Suite 110 was Brennan’s, and that he, James, merely acted as Brennan’s law clerk or paralegal. Judge McKee found that a “combination of public appearance and internal operating procedure created an atmosphere where [James] continued to effectively hold himself out as a practicing attorney.” Judge McKee concluded that James’s “actions while on suspension constituted ‘practicing law’ under any reasonable interpretation.” The matter is now before this Court on James’s exceptions to Judge McKee’s findings of fact, made as a hearing master for this Court. James was admitted to the bar of this Court in 1971. At all relevant times he had neither any partner nor associate attorney. 1 Brennan was admitted in 1980.

He gave up the practice of law in 1984 or 1985 in order to pursue a career in commercial real estate. In about 1990 or 1991, when “the bottom fell out of’ that market, he resumed practicing law from his home in Glen Burnie. In 1993 he opened an office on State Circle in Annapolis, practicing alone and doing his own secretarial work. James’s suspension that became effective January 12, 1994 was announced by the opinion filed December 13, 1993. ³²² James II, 333 Md. at 174 , 634 A.2d at 48 .

In late 1993 James discussed with Brennan James’s preparations for the suspension. James asked Brennan to come to the Greenbelt office. James told Brennan that James “wanted to, if possible, keep that office open.” James gave Brennan the impression that James’s practice was a good one. James wanted Brennan basically “to take over Mr. James’s clients____” James “said that [Brennan] could probably, if things worked out well, maybe expect a possible $100,000 year.” Before describing in Part II, infra, how the James-Brennan arrangement actually operated, we shall review the guideposts in Maryland that were available to James concerning law-practice-related activity by a suspended attorney.

Initially we note that, prior to the suspension now under consideration, James had been suspended for two years by the District of Columbia Court of Appeals, Matter of James, 452 A.2d 163 (D.C.App.1982). Based on the same misconduct, this Court suspended James from practice in this State for two years beginning in August 1984. Attorney Grievance Comm’n v. James, 300 Md. 297 , 477 A.2d 1185 (1984) (James I). Thus, James previously had been obliged to reflect upon the restraints on law-practice-related activity imposed by a suspension. 2 I An “attorney may not practice law ... during the period the attorney, by order, is suspended.” Rule BV13.a.2. ³²³ One definition of “practice law” is found in Md.Code (1989, 1995 Repl.Vol.), § 10-101(h)(l) of the Business Occupations and Professions Article (BOP).

It reads: “(1) ‘Practice law’ means 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 (iii) performing any other service that the Court of Appeals defines as practicing law. (2) ‘Practice law’ includes: (i) advising in the administration of probate of estates of decedents in an orphans’ court of the State; (ii) preparing an instrument that affects title to real estate; (iii) preparing or helping in the preparation of any form or document that is filed in a court or affects a case that is or may be filed in a court; or (iv) giving advice about a case that is or may be filed in a court.” The foregoing general prohibitions are complemented by BOP § 10-601(b), setting forth expressly permitted activity. That statute provides in relevant part: “[W]hile the individual’s right to practice law is suspended or revoked, the individual may: (1) discharge existing obligations; (2) collect and distribute accounts receivable; or (3) perform any other act that is necessary to conclude the affairs of a law practice but that does not constitute practicing law.” BOP § 10-601(a), in combination with § 10-101(b), generally prohibits an individual from practicing law in this State without authorization by the Court of Appeals. “It is not a defense to a charge of a violation of [BOP § 10-601] that the defendant acted through an officer, director, partner, trustee, agent, or employee who is a lawyer.” BOP § 10-601(e). ³²⁴ Ultimately, this Court decides what is the practice of law. See Public Serv.

Comm’n v. Hahn Transp., Inc., 258 Md. 571, 588 , 253 A.2d 845, 852 (1969); Lukas v. Bar Ass’n of Montgomery County, Inc., 35 Md.App. 442, 447 , 371 A.2d 669, 672 (1977). We have said that the practice of law includes “[u]tilizing legal education, training, and experience [to apply] the special analysis of the profession to a client’s problem.” Kennedy v. Bar Ass’n of Montgomery County, Inc., 316 Md. 646, 662 , 561 A.2d 200, 208 (1989). Depending on the circumstances, meeting with prospective clients may also constitute the practice of law because “the very acts of interview, analysis and explanation of legal rights constitute practicing law in Maryland.” Id. at 666 , 561 A.2d at 210 . Work as a paralegal has been involved, in different degrees, in two decisions of this Court.

In one decision an attorney applied for reinstatement after having been disbarred for twelve years. Matter of Murray, 316 Md. 303 , 558 A.2d 710 (1989). Prior to his disbarment, Murray had practiced as a partner in a firm in Baltimore County. After his disbarment, Murray sold his home in Baltimore County and moved to Carroll County where he was employed as a paralegal, during the period of his disbarment, by an established Westminster firm.

Id. at 306 & n. 1, 311, 558 A.2d at 711 & n. 1, 713. We simply included these facts without comment among those set forth in an opinion readmitting Murray. The second case, Matter of R.G.S., 312 Md. 626 , 541 A.2d 977 (1988), arose on an application for admission upon completion of the abbreviated examination for attorneys previously admitted in another state. R.G.S. was a member of the North Carolina bar who had practiced there for five years.

He came to Maryland to become a full-time professor of law. Some fourteen years later he reduced his teaching schedule to that of a part-time, adjunct faculty instructor in order to be employed full time as counsel to an established law firm in Anne Arundel County. Id. at 628 , 541 A.2d at 978 . There he drafted pleadings, supporting memoranda, and briefs, under the supervision of licensed Maryland lawyers.

Id. at 632 , 541 A.2d at 981 . He advised the partners in the firm on litigation ³²⁵ strategy and the like. Id. at 632-33 , 541 A.2d at 981 . One issue presented to us was whether this activity was the unauthorized practice of law or whether it could be credited toward the experience requirement under the applicable admission rule, Rule 14.

In that context, we said: “The goal of the unauthorized practice statute 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. The Rule 14 goal is achieved by looking at the actual significance of the legal work that the applicant proffers to show compliance with the ‘practice of law’ requirement. In this case, significant legal work was performed by one already admitted to practice by examination in another state. That work was performed in a way that insulated the practitioner from direct contact with lay clients and the courts and administrative tribunals.

The work also was done under the supervision of a licensed Maryland lawyer. Under these circumstances, that work may be actual practice within the meaning of Rule 14, but not unauthorized practice within the meaning of [BOP § 10-601(a) ].” Id. at 638-39, 541 A.2d at 983 (citation omitted). Here, James contends that, like R.G.S., his activities do not constitute unauthorized practice in violation of the suspension order because they were conducted under the supervision of Brennan. Other guideposts in Maryland, however, bear on James’s arrangement with Brennan.

Rule 5.5 of the Maryland Lawyers’ Rules of Professional Conduct states in part that a lawyer shall not “[a]ssist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.” Md. Rule 5.5(b). The Maryland State Bar Association Committee on Ethics, in Informal Opinion Docket 79-41, had occasion to consider whether a sole practitioner should hire, as a paralegal, a former associate attorney who had been disbarred. The Committee assumed that the employment was ³²⁶ not illegal, and it limited its opinion to the effect on the question of the predecessor to Rule 5.5(b). We quote liberally from the Committee’s opinion, not because we are here directly concerned with Brennan’s conduct, but because the opinion reflects the difficult position in which James placed himself by the James-Brennan relationship, and particularly as it bears on the affidavit required by BV13.a.2. “[T]he attorney should not hire the applicant if, in any given locality the public will be given the impression that disbarment was ineffectual or has been ignored.

Under the facts which you presented, this would be a serious impediment to the hiring of this individual. Because of the presence of his former clients and his former association with you, the public may be led to believe that the disbarment has made no difference. The arrangement would give to the public the appearance of impropriety. “The employer must be scrupulously careful about compensation of this particular individual as well as his supervision of the duties and work product of the individual within the law office. In compensation, it would be clearly impermissible to share fees under DR 3-102 but any arrangement, salary or otherwise, based on, or calculated from the fees of clients or otherwise tantamount to a draw, would be equally impermissible as long as it suggested that the title of paralegal or clerk merely covered up what was, in substance, a continuation of the practice of law. “The employer-attorney may have a duty to disclose the status of the individual to clients before allowing him to work on matters for the clients but this requirement may conflict with the prohibition against giving to the public the appearance of impropriety and there may be no safe or satisfactory way for the attorney to resolve this conflict. “The Committee is aware that this list is not exhaustive and there may be any number of situations arising every day which would test the propriety of the relationship. “As we have stated, however, we do not believe that the fact of disbarment should, in all cases, preclude the former attorney from obtaining employment as a clerk or paralegal. ³²⁷ Where it is permissible, it may even be commendable for a lawyer or lawyers to assist in the rehabilitation of a former colleague.

But these considerations must never override the attorney’s duty to his or her client, the public, and the legal profession. “Under your fact situation, the Committee is of the opinion that your relationship, and that of your clients and the public in your locality with the former attorney is too close, and too Med with potential problems, to be professionally proper and therefore this Committee is of the opinion that to hire the previously disbarred attorney as a paralegal in your office under these circumstances would not be ethical.” Informal Docket 79-41 at 3-4. Further,