Attorney Grievance Commission v. Miller

¹⁶⁵ ELDRIDGE, Judge. The Attorney Grievance Commission, by Bar Counsel, filed in this Court a petition for disciplinary action against Timothy Charles Miller. Mr. Miller has been a member of the Maryland Bar since December 1973, and he maintains an office for the practice of law in Wheaton, Maryland. In accordance with Maryland Rule BV9, this Court transmitted the charges to the Circuit Court for Montgomery County for a hearing, and we designated Circuit Judge William M. Cave to hear the charges.

After a hearing, at which several witnesses testified and numerous exhibits were filed, Judge Cave made the following findings of fact and conclusions of law: “FINDINGS OF FACT AND CONCLUSIONS OF LAW “This matter comes before the Court on the Petition of the Attorney Grievance Commission of Maryland for Disciplinary Action against Timothy Charles Miller. The Petition alleges that the Respondent did unethically and unprofessionally violate: ‘DR 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. ‘DR 5-101 Refusing Employment When the Interests of the Lawyer May Impair his Independent Professional Judgment. (A) Except with the consent of his client after full disclosure, a lawyer shall not accept employ ¹⁶⁶ ment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests. ‘DR 5-105 Refusing to Accept or Continue Employment if the Interests of Another Client May Impair the Independent Professional Judgment of the Lawyer. (A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, except to the extent permitted under DR 5-101(C).

(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, except to the extent permitted under DR 5-105(C). (C) In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each. (D) If a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his or his firm may accept or continue such employment.’ “The misconduct alleged in the Petition arises out of a finding by the Interstate Commerce Commission on April 11, 1984, which reprimanded and suspended the Respondent from practice before that administrative body for a period of six months. ¹⁶⁷ “The Office of Compliance and Consumer Assistance of the Interstate Commerce Commission instituted a proceeding to determine whether or not the Respondent, Timothy Miller, along with another attorney, Theodore Polydoroff, had violated the Canons of the Code of Ethics for Practitioners before the Commission. On July 14, 1983, the Administrative Law Judge before whom the proceedings were held found that the Respondents had not violated the Commission’s Code of Ethics and ordered the proceedings discontinued. “Gardner Trucking Company, Inc. was permitted to intervene and take an appeal before the Interstate Commerce Commission.

The Interstate Commerce Commission, after an extremely lengthy hearing, reversed the decision of the Administrative Law Judge and found that the Respondent had violated the Code of Ethics for Practitioners before the Commission in that he had violated the conflict of interests prohibition in Canon 9 and the duty of fidelity to a private trust contained in Canon 7. “The threshold issue is whether or not the findings by the ICC constitute a final adjudication by a judicial tribunal. Maryland Rule BV10 e provides that a final judgment by a judicial tribunal in which an attorney is convicted of a crime shall be conclusive proof of the guilt for the purpose of the disciplinary proceeding. In addition, it provides: ‘A final adjudication in a disciplinary proceeding by a judicial tribunal or a disciplinary agency appointed by or acting at the direction of a judicial tribunal that an attorney has been guilty of misconduct is conclusive proof of the misconduct in the hearing of charges pursuant to this Rule.’ “The Interstate Commerce Commission is an administrative agency, not a judicial tribunal nor a disciplinary agency appointed by or acting at the direction of a judicial tribunal. “Bar counsel suggests that since the matter reached the United States Court of Appeals for the District of Columbia which affirmed the finding by the ICC of misconduct, it is ¹⁶⁸ tantamount to a finding by a judicial tribunal. If it is, then it is conclusive proof in this proceeding of the misconduct found.

Attorney Grievance Commission v. Samstag, 296 Md. 64 , 458 A.2d 1241 (1983); Attorney Grievance Commission v. Moore, 301 Md. 169 , 482 A.2d 497 (1984). “Rule BV10 d requires that factual findings shall be supported by clear and convincing evidence. The burden of proof to establish misconduct before the ICC is by a preponderance of the evidence. Respondent, therefore, argues that the decision by the ICC should not be accorded the conclusive proof finding to which a judicial tribunal is entitled. Some states require only a preponderance of the evidence for lawyer disciplinary proceedings.

The BY Rules nor the appellate decisions of this state make no distinction between the final determinations by a judicial tribunal in states requiring clear and convincing evidence and those which require only a preponderance of the evidence. It would appear that the clear and convincing evidence test applies to proof in this hearing of the adjudication by the judicial tribunal in the prior proceeding. “This Court has reviewed the portions of the transcripts and the exhibits submitted by the Respondent from the ICC hearing. Bar counsel was also afforded the opportunity to submit any additional exhibits or portions of the transcripts bearing on the Respondent, Timothy Miller. Several aspects of the ICC hearing and determination cause this Court grave concern with respect to the ultimate findings.

Theodore Polydoroff and Timothy C. Miller were both represented by the same attorney, Joseph G. Dail, Jr. The main thrust of the defense was that the actions of Polydoroff did not violate the Canons of the Code of Ethics for Practitioners before the Commission. “Gardner Trucking Company, Inc. was the client that the ICC found to be the subject of the violation of the duty of fidelity to a private trust and the conflict of interests. Respondent Miller, however, never represented Gardner Trucking Company, Inc. It is clear to this Court that there is no underlying factual basis for the finding by the ICC of ¹⁶⁹ misconduct by Respondent Miller. It is apparent that the Commission lumped the two of them together, and whatever finding of misconduct was against Polydoroff was