Attorney Grievance Commission v. Stewart

Davidson, J., delivered the opinion of the Court. The Attorney Grievance Commission through Bar Counsel filed a petition for disciplinary action against Marshall I. Stewart (Stewart) alleging violations of the Disciplinary Rules of the Code of Professional Responsibility. Pursuant to Maryland Rule BY9, we referred the matter to the Supreme Bench of Baltimore City to be heard by a three-judge panel. The panel, after giving notice and conducting an evidentiary hearing, made findings of fact from which it concluded that Stewart had violated certain disciplinary rules as charged.

It recommended that he be disbarred. In a memorandum opinion, the panel set forth its findings of fact and its recommendation as follows: “FINDINGS OF FACT “A. Matter of Bryant Millberry (on complaint of Iris 0. Ambush). The allegations regarding this complaint were proven by clear and convincing evidence.

In June, 1975, the Respondent undertook to represent Mr. Millberry on his appeal to the Court of Special Appeals of Maryland from his conviction in the Criminal Court of Baltimore City. The Respondent filed the appeal on June 19, 1975, which was ²⁵³ dismissed on September 18,1975 because the record had not been transmitted. The Respondent had notified the court reporter who was present at the disposition only but did not at any time contact the court reporter who was at trial, even though he was advised of this by the court reporter at disposition. (Pet.Ex.A.l.d.

(1).) The Respondent made no motion to extend the time for transmitting the record, nor did he undertake to prepare an appeal brief. As a result of the dismissal of the appeal, the client’s appeal bond was revoked and he was incarcerated. Subsequently, the Respondent did obtain a belated appeal through post conviction proceedings, but the appeal thereafter was handled by another attorney. The Respondent received $945 of his $1000 fee, but refused to return any part of it even though requested to do so.

(PetEx.A.l.d. (2).) “B. Settlement of 425 Alabama Road property, (on complaint of David Downes). The allegations regarding this complaint were proven by clear and convincing evidence. The Respondent represented the purchaser of this property.

At the settlement on May 19, 1975, the Respondent retained from the $45,000 purchase price the sum of $20,993.72 in order to pay off the existing mortgage on the property. The Respondent recorded the deed on June 3, 1975. The Respondent first attempted to pay the mortgagee around July 14,1975 by sending a check for the mortgage balance that was due on May 19, 1975. The check was returned to the Respondent by the mortgagee’s attorney with a letter advising of the interest which had accrued since May 19, 1975 and also advising that foreclosure proceedings would be instituted if full payment were not made by July 18, 1975.

The Respondent finally paid the mortgage balance in full on September 12,1975, four days before the property was to be sold at public auction under the foreclosure proceedings which had since been instituted. ²⁵⁴ “At all times, the $20,993.72 retained by the Respondent at settlement was on deposit in the Respondent’s attorney escrow account. The Respondent did not send the notice required of Section 7-106 (b) of the Real Property Article to the seller and purchaser advising of the non-payment of the mortgage. “After settlement, the seller of the property was denied a subsequent mortgage on another property because of the default in the mortgage on the subject property occasioned by the Respondent’s inaction. “C. Settlement of Laurens Street properties (on complaint of Bernard Dackman). The allegations regarding this complaint were proven by clear and convincing evidence. The Respondent represented the purchaser of these 3 properties.

At settlement on October 17, 1975, the Respondent retained the executed deed and sufficient funds to record the deed and the purchase money mortgage executed by the purchaser to the seller. The purchase price was $2500; the mortgage, $1750. The Respondent did not record the deed or mortgage, and on April 6, 1976, the seller’s attorney prepared and recorded a new deed and paid for same. The Respondent still has the deed executed at settlement in his file.

The Respondent received $700, partly by monies from the purchaser and partly by monies retained at settlement. These sums were to include the Respondent’s fee and disbursements he was to make. The Respondent has not refunded or disbursed any of the $700. “D. Divorce of Dolottie Jones (on complaint of Mary Carter). The Respondent filed a Bill of Complaint for Divorce A Mensa et Thoro and also appeared with his client’s mother at a criminal proceeding.

He received $120, out of which he paid $35 advanced court costs. He did not pursue the divorce case because he was not paid the balance of his $275 fee. ²⁵⁵ “E. Divorce of Boyd T. Muir. The allegations regarding this complaint were proven by clear and convincing evidence. The Respondent received $300 of his $350 fee and in November, 1974 he filed a Bill of Complaint for an absolute divorce on behalf of his client.

Service against the Defendant wife was returned twice ‘non est’ by December, 1974. Although the Respondent advised his client he would obtain service by posting notice on the courthouse door, as permitted by the Rules, he failed to do so until after his client had testified before an inquiry panel of the Commission on September 29,1976. The Respondent had testified before this Court that he had posted such notice in January, 1976, before his client had complained to the Commission, but retracted this testimony when confronted by the court file in that case (Resp.Ex.2). The Respondent ultimately concluded the uncontested divorce for his client in January, 1977. “F. Matter of John Clauss, Jr. (on complaint of Winifred Heill).

An employee of the Respondent, John Clauss, Jr., who is not an attorney, was listed in the telephone directory as an attorney with the Respondent’s office address and telephone number. A letter purportedly bearing the Respondent’s signature and directed to a local bank states that Mr. Clauss was an ‘attorney at law’ employed by the Respondent. The Respondent denied any knowledge of the telephone directory listings or the letter to the bank and denies that the signature on the letter is his. The signature on the letter is substantially dissimilar to the Respondent’s signature.

This panel feels there is insufficient proof to support the Commission’s allegations that the Respondent had knowledge of Mr. Clauss’ holding himself out as a licensed attorney. “General comments. The Respondent presented no meaningful explanations for his inaction in these various matters, except for Complaint D. He ²⁵⁶ attempted to excuse many items because of a so-called ‘seizure’ he had sometime in June, 1975. He testified that he has been under medical treatment from 1974 continuously to date. However, the nature of his maladies were imprecise (overweight, heart, etc.) and he presented no hospital records, doctors’ reports or other supporting data. “Prior history.

The Respondent is 63 years old and although he passed the Maryland Bar in 1940, he did not practice in Maryland until 1971. In 1965, while practicing in the District of Columbia, he pleaded guilty to a violation of Section 77e (a) (1) of Title 15 of the U.S. Code, the essence of which is that he made certain representations regarding the sale of stock which had not been registered with the Securities and Exchange Commission. He received a one to three year suspended sentence, was placed on probation for three years and was fined $5000. The U.S. District Court for the District of Columbia determined that this crime was an offense involving moral turpitude and suspended him from the practice of law for three months (Com.Ex.G.l.a. and G.l.b.).

As a result of that episode, the Respondent came to Baltimore and taught English at the University of Baltimore until 1971, when he commenced the practice of law here. “ CONCLUSIONS OF LA W “From these findings of fact, we conclude, as to Complaints A, B, C and E, that the Respondent violated the following Disciplinary Rules of the Code of Professional Responsibility: “1. DR6-101 (A) (3), neglecting legal matters entrusted to-him; “2. DR7-101 (A) (2), failure to carry out contracts of employment entered into with clients for professional services; and ²⁵⁷ “3. DR1-102, engaging in conduct that is prejudicial to the administration of justice. “While Complaint D may technically amount to neglect, the matter involved was only a partial divorce, which was merely a holding action until the time had ripened into grounds for an absolute divorce.

Therefore, no significant prejudice has been demonstrated to the panel. “Complaint F fails for lack of proof. “RECOMMENDATION “In Bar Ass’n of