Attorney Grievance Commission v. Kerpelman

Cole, J., delivered the opinion of the Court. Leonard Jules Kerpelman, a member of the bar of this State, was charged by the Attorney Grievance Commission ²³⁰ with professional misconduct. Pursuant to Maryland Rule BV 9, § b, this Court directed that the charges be transmitted to and heard by Judge Calvin R. Sanders of the Circuit Court for Montgomery County. Being advised that Judge Sanders would not be able to participate in the matter, the case was reassigned to Judge Joseph M. Mathias of the same court.

A hearing was conducted by Judge Mathias, after which he concluded that there was clear and convincing evidence that Kerpelman had violated several disciplinary rules. Kerpelman filed some forty-one exceptions to these findings. We shall summarize the facts and discuss the exceptions that are pertinent to our disposition. The central figures involved here, Kerpelman and Dr. Leslie F. Major, first met in October, 1977, at a meeting of Fathers United. 1 The two discussed child custody, alimony, and divorce problems which Major was experiencing as the result of domestic difficulties with his wife.

Major was at this time being represented by another attorney, Jackson Brodsky. Three or four weeks later, Major called Kerpelman and the two discussed whether Kerpelman would represent Major and what the fee arrangement would be. According to Major, Kerpelman said that he would charge a $2,000 retainer and $70 per hour, but that the $2,000 would probably just about cover the total costs. Kerpelman, on the other hand, said that he told Major that there would be a retainer that would represent the minimum fee and that there would be a $70 fee as an hourly rate.

According to Kerpelman, he told Major that the $2,000 was only a retainer and that the final fee would be greater if the case was successful. Both parties agree that the $2,000 was paid before the trial and that Major thereafter sent several notes to Kerpelman about various aspects of the case and witnesses. Kerpelman apparently did not interview any of the witnesses. During the course of the trial in the Circuit Court for Montgomery County, Kerpelman presented Major with a ²³¹ written fee agreement, 2 the amount of which was to be determined by results obtained and a variety of other factors.

Major testified that the first time he saw this agreement was at a crucial point during the final day of the trial when a favorable witness was being cross-examined by the other side. Major alleged that he fold Kerpelman at that time that ²³² he wanted to discuss the matter but that Kerpelman said to sign it right then. To avoid getting into a fee dispute that might jeopardize the successful outcome of his case, Major signed, the "new agreement.” Kerpelman’s version is somewhat different. He alleged at the hearing before Judge Mathias that he mailed the agreement to Major, who brought it to the trial signed.

In a prior deposition for another proceeding Kerpelman contradicts this by saying that he gave the new agreement to Major in Kerpelman’s office. He denies that he presented the agreement to Major for the first time during the trial. The trial lasted for three days and Major was awarded custody of his children and required to pay no alimony. Kerpelman kept no records of the time he spent on the case but estimated it variously at 28 hours or 38.8 hours.

Kerpelman subsequently sent Major a bill for $8,500.00 based, he said, on the successful outcome of the case. Major protested, saying that the additional $8,500 was not the sum they had agreed upon, and Kerpelman filed suit for the fee. The following are excerpts of the exchange between Kerpelman and Major regarding the increased bill. Major’s first reply: I first contacted you in late October and .. . you stated your fee at $70.00/hour and when I had some doubts if I could afford your (sic) you assured me that you worked very efficiently and that the ²³³ $2000.00 retainer you figured would cover the expenses of a contested divorce and custody scheduled for May 8, 9, 10.

Based on this, I retained you and paid the $2000.00 retainer over the next three months ... You did in fact work very efficiently. We met only once on May 5, for IV2 hours. We talked on the phone several times, totalling one hour.

You issued one request for an earlier court date and answered Ms. Groner (sic) objection to that request. Court was in session for 2 hours on Monday, 6 hours on Tuesday and 6 hours on Wednesday. It appeared to me that the retainer would more than cover the time spent reimbursable at $70/hour as we had agreed upon. The other issue I would like to address has to do with the incident on Wednesday, May 10th, when you slid a piece of paper over to me during the trial saying I should sign it.

It amounted to a vague contingency agreement. Since I was in no condition to concentrate on it (sic) ask you questions, I suggested we wait untill (sic) after recess to discuss it. You made it quite clear that you wanted me to sign it then. Considering the situation, i.e., that this was the most crucial part of the trial where I was most dependent on your working in my interest, I did not feel I could argue with you or allienate (sic) you at that point.

However, to give an analogy from my profession, it would be like having you come to me for an operation, having agreed on the fee and then when I had you on the operating table ask you to sign an agreement based on outcome you would hardly be in a position to negotiate, particularly if I had already started the operation and you had no choice but to continue with me. I hope you can ²³⁴ appreciate this analogy and place yourself in my position. The respondent’s abbreviated response to Major’s letter of protest was: Your letter of June 5th is nonsense. My retainer is, as explained, the bottom possible cost; my final fee is based, among other things, on result.

Major responded: My letter of June 5th clearly and accurately states our verbal agreement and the extent of our contact. Your attempt to change the agreement on the last day of the trial while court was in session was highly offensive and manipulative. If you wish to pursue this matter please send me a bill itemizing your hours explicitly and a copy of the paper you had me sign May 10th. Kerpelman, even before receiving the above letter, got off another response to his client: I thought you would be so overjoyed at having overachieved, in your case, by having acquired results far beyond any hope or expectation of achievement, that you would fall all over yourself paying my bill immediately.

No alimony! Custody of the children! A miraculous achievement for Montgomery County, although it would have been almost equally miraculous anywhere else. You are too much.

Major responded, in part: In response to your letter of June 14, 1978,1 am of ²³⁵ course overjoyed at having custody of my children. I am also grateful for your efforts in helping me achieve this. I would liked to have been able to maintain this feeling of appreciation, but your attempt on May 10th to unilatterly (sic) change our agreement was a grievous breach of trust. I stand by our original agreement as outlined in my last letter to you.

If you would do so also, we could rectify the situation to some degree. In the meantime, I have retained another lawyer for any further proceedings in my case. His name is Reginal (sic) Bours III, 30 Courthouse Sq., Suite 301, Rockville, MD. 20850. The next letter from Kerpelman to his client, dated June 22, 1978, responds to Major’s letter of June 15.

Pertinent excerpts are: Your letter of June 15 is entire nonsense and misstates the facts completely. Kindly pay my bill at once. You were given a copy of the paper you requested already, but I enclose another copy for your information. As we agreed and as you clearly understood my bill was never to be based on hours spent.

It was to be based on the value of the services, the difficulty of achieving the end in view and the other matters set forth in the agreement. [Emphasis in Original], Major retained another lawyer and counterclaimed, alleging fraud. Kerpelman thereupon filed an amended complaint raising the fee from $8,500 to $23,000. 3 The reason for the change, according to Kerpelman, was that his ²³⁶ first demand was only a modest fee and, since Major was claiming that the agreement was null and void, he applied all the factors relevant to the quantum meruit recovery. This case was tried before a jury, which found for Major on both Kerpelman’s claim and Major’s counterclaim but awarded only nominal damages of $1.00. At the hearing before Judge Mathias, Bar Counsel called Jackson Brodsky as an expert witness regarding domestic legal practice.

Mr. Brodsky testified that the $23,000 figure was "clearly excessive,” basing his opinion on DR 2-106 which defines a fee as being clearly excessive "when and after a review of the facts a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee.” Kerpelman called Judge John J. Mitchell, the presiding judge in Major’s domestic case, who testified that the $23,000 was "pretty high” but not outrageous. Judge Mathias found that Kerpelman had violated the following disciplinary rules: DR 1-102 — Misconduct (A) A lawyer shall not: (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.

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. ²³⁷ DR 7-101 Representing a Client Zealously. (A) A lawyer shall not intentionally (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. DR 7-102 Representing a Client Within the Bounds Of The Law. (A) In his representation of a client, a lawyer shall not: (5) Knowingly make a false statement of law or fact.

Before us Kerpelman made forty-one exceptions to the findings of Judge Mathias. 4 As several involve related issues and can be treated as groups we will discuss them as groups where applicable rather than seriatim as presented by Kerpelman. Several of the exceptions can be characterized as presenting no more than bald assertions or editorial comments on the proceedings or the people involved. Kerpelman, in exception number 6, suggests that the findings of the trial judge are "a thinly disguised effort to deny” him his rights to free speech and due process. He does not allege in what manner his freedom of speech has been impaired and since the record reflects no basis for the allegation it is without merit.

In exception 11 he claims that Judge Mathias was hand selected to find him guilty. In exception 22 he claims that the Attorney Grievance Commission and its staff are "creatures of this Court” and "are completely under the thumb of this Court and exist only to do this Court’s bidding,” i.e., to find him guilty. In number ²³⁸ 25 he protests that proof of the Commission’s bias can be found in the fact that it has never lost a case before this Court. In number 28 Kerpelman says that the grievance system set up by this Court lacks checks and balances which is a denial of due process.

In exception 29 he says in effect that this Court has delegated its rule making power thereby giving the Attorney Grievance Commission unbridled control over the practicing bar. In exception 33 he alleges again a conspiracy between the Chief Judge of this Court and Judge Mathias. In number 34 Kerpelman announces his intention to supplement these exceptions if he so desires. Not only are the above exceptions unsupported but they are specious and frivolous and deserve no further comment.

Kerpelman also makes several evidentiary exceptions. He proposes in exceptions 2, 3, 4, 5, 30, and 40 that the findings "do not meet the constitutional standard implicit in the requirement of'clear and convincing evidence.’ ” He cites an overruled federal case for support, Terrazas v. Vance, 577 F.2d 7 (7th Cir. 1978), rev’d 444 U.S. 252 , 100 S.Ct. 540 , 62 L. Ed. 2d 461 (1980); reh. den. 445 U.S. 920 , 100 S.Ct. 1285 , 63 L. Ed. 2d 606 (1980), which is inapposite in any event. We note that the requirement that there be clear and convincing evidence before an attorney may be disciplined is imposed by virtue of Rule BV 10, § d of the Md. Rules. Moreover, we find nothing in the record to suggest that Judge Mathias did not correctly apply the clear and convincing standard here.

Judge Mathias was charged with the responsibility of hearing and seeing the witnesses, observing their demeanor and manner while testifying, assessing the weight of their testimony, and determining the probative value of the exhibits admitted into evidence. This he accomplished, explicating the bases for his results in admirable fashion. The evidence was clearly sufficient to support his conclusions. Exceptions 7 (Brodsky was biased and too old to testify), 8 (Judge Mitchell’s testimony was not properly weighed), 9 (Brodsky’s opinion was based on an improper standard), 10 (reiterating exceptions 7 and 9), and 21 (the circuit court’s belief of some parts of Major’s testimony and not others was ²³⁹ contradictory) are also evidentiary type exceptions.

For the reasons discussed above they are likewise without merit. Kerpelman raises a due process question in at least seventeen of his forty-one exceptions. In exceptions 13, 22, 26, and 28 Kerpelman alleges that the use of judges as masters, the use of the clearly erroneous rule as to masters, and the attorney disciplinary procedure itself are denials of due process. There is, again, no support presented for these contentions and they are completely without merit.

See Attorney Grievance Commission v. Kerpelman, 288 Md. 341, 377-78 , 420 A.2d 940 (1980). In exceptions 15, 16, and 17 Kerpelman contends that he was convicted solely on the basis of the testimony of a disgruntled client, that this cannot rise to the clear and convincing standard, and that this is a denial of due process. The first answer to this is that the factual premise is palpably untrue. Kerpelman was found to have violated the disciplinary rules based on the exhibits submitted by Bar Counsel, and the testimony of Major, Kerpelman himself, Brodsky, and Judge Mitchell.

The second answer to this is that we have already held that a client’s testimony, without more, is sufficient to satisfy the standard. Attorney Grievance Commission v. Kerpelman, supra, 288 Md. at 360-61 . Exception 33 alleges that Chief Judge Murphy of this Court and Judge Cahoon of the Circuit Court for Montgomery County conspired with one another to select Judge Mathias as part of a plot or scheme to see that Kerpelman was convicted of the disciplinary charges. Kerpelman characterizes this conspiracy as a belief.

He offers no evidence to support his contention — none appears in the record and we shall infer none. There has been no denial of due process and this contention is without merit. In exceptions 35, 36, and 37 Kerpelman alleges due process violations in that all the Montgomery County judges should have been disqualified; that the case should have been transferred out of Montgomery County; and that Judge Mathias should have recused himself. These are bald assertions without any precedential or evidentiary support. ²⁴⁰ Kerpelman was heard on this matter before Judge Mathias, who ruled against Kerpelman’s motions.

There is nothing in the record to indicate Judge Mathias was clearly erroneous. These exceptions are without merit. In exceptions 38 and 39 Kerpelman alleges as a due process violation that the members of the Court of Appeals are not familiar with the trial transcript. We reject this allegation because it is not based on fact.

Moreover, Kerpelman did not support this argument by referring to portions of the record that he desired the Court to read. At argument before us he made no attempt to indicate where in these proceedings he was prejudiced. A full and fair opportunity to be heard has been afforded to Kerpelman and he cannot assign his inability or unwillingness to direct the Court to pertinent segments of the record as a denial of due process. This contention is without merit.

In exception 14 Kerpelman challenges the provision of appeal by way of exceptions as an unconstitutional denial of due process. He proposes no reason why and we can find none. A respondent may and, indeed, is most heartily encouraged to, include citations of authority and references to whatever materials are before the Court to support his position. That Kerpelman was unable to or unwilling to avail himself of this opportunity does not reflect on the process itself.

This contention is without merit. Kerpelman excepts in Number 18 to Judge Mathias’s ruling that a fee agreement from another law firm was inadmissible as evidence. The form or content of Kerpelman’s agreement was not at issue. The evidence was irrelevant and Judge Mathias correctly excluded it.

Even if the evidence was admissible, Kerpelman has failed to show how he was in any way injured by its exclusion. This contention is without merit. In exception 20 Kerpelman decries his inability to be heard by a jury in these proceedings. "[Disciplinary proceedings against attorneys, in the absence of a rule or statute to the contrary, are not encompassed within the constitutional guarantees of trial by a jury, be that guar ²⁴¹ antee state or federal.” Attorney Grievance Commission v. Kerpelman, supra, 288 Md. at 356 .

This contention is without merit. In exceptions 12, 23, and 27 Kerpelman challenges the authority of this Court to formulate rules for the Bar and to set up and administer the attorney disciplinary proceedings. "The superintending power of courts over their bars is deeply ingrained in the system of law which we inherited from our forebears at the time of the American Revolution. It has continued to this day.” Id. at 375 .

This contention is without merit. Kerpelman also makes three allegations of violations of the Equal Protection Clause of the Fourteenth Amendment: exceptions 19, 24, and 31 (alleging Kerpelman has been unfairly singled out for prosecution). Kerpelman makes no attempt to show in what manner he has been treated differently than any other attorney in this State. These contentions are without merit.

In exception one Kerpelman maintains that venue was improperly and unconstitutionally laid. Maryland Rule BV 9, § b specifically authorizes this Court to assign venue to any court in this state and Kerpelman cannot and does not maintain that the chosen forum was vexatious and oppressive out of all proportion to his convenience. See Piper Aircraft Company v. Reyno, 450 U.S. 909 , 102 S. Ct. 252 , 70 L.Ed.2d 419 (1981). This contention is without merit.

In exceptions 32 and 41 Kerpelman charges that the Chief Judge of this Court should disqualify himself because of an article authored by Kerpelman appearing in the "Charleston West Virginia Gazette — Mail Newspaper.” This exception is patently absurd. Interspersed throughout these exceptions Kerpelman has made the persistent accusation that these proceedings are a guided and concerted effort by this Court, the judges of the Circuit Court for Montgomery County, and the attorneys of the Attorney Grievance Commission to secure a guilty verdict against Kerpelman. He offers no proof and such contention is frivolous. ²⁴² Having addressed and found no merit in Kerpelman’s exceptions, we now turn our attention to the conclusions of the trial court. Judge Mathias found by clear and convincing evidence that [ejither the respondent quoted a fee based on an hourly rate of $70 knowing that he was not going to abide by such an arrangement if the case was won or, having won the case, decided the time was propitious to extract a larger fee than had been agreed upon. 5 Engaging in such conduct involves dishonesty and deceit and is prejudicial to the administration of justice and furthermore reflects on the respondent’s fitness to practice law.

We concur in that result. We do not believe, however, that this is the kind of deceit that merits automatic disbarment. This is not to say we rule out disbarment as a sanction in all cases involving an attorney’s misrepresentation of his fee, nor do we mean to convey anything but antipathy for this type of conduct. Based on the facts of this case, however, this violation of the disciplinary rules by itself does not call for disbarment.

Judge Mathias also found that Kerpelman had tried to extract a clearly excessive fee from his client, violating Disciplinary Rule 2-106(A). Using the higher of Kerpelman’s time estimates, 38.8 hours, and the hourly fee Kerpelman agrees that he quoted to Major, $70, the most Kerpelman could have charged for this case was $2,716. Even using the $125 per hour figure referred to by Judge Mitchell in his testimony, Kerpelman could only have charged $4,850. Yet Kerpelman ultimately demanded a total fee of $25,000.

The Code of Professional Responsibility, DR 2-106(B) provides: B) A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would ²⁴³ be left with a definite and firm conviction that the fee is in excess of a reasonable fee. Factors to be considered as guides in determining the reasonableness of a fee include the following: (1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly. (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer. (3) The fee customarily charged in the locality for similar legal services.

(4) The amount involved and the results obtained. (5) The time limitations imposed by the client or by the circumstances. (6) The nature and length of the professional relationship with the client. (7) The experience, reputation, and ability of the lawyer or lawyers performing the services.

(8) Whether the fee is fixed or contingent. In the instant case Jackson Brodsky, a practicing attorney who