Kennedy v. Bar Ass'n of Montgomery County, Inc.

RODOWSKY, Judge. Appellant, Thomas F. Kennedy (Kennedy), is a member of the Bar of the District of Columbia Court of Appeals and has been admitted to practice before the United States District Court for the District of Maryland, but has never been admitted to the bar of this Court. In this injunction action the Circuit Court for Montgomery County found, among other facts, that Kennedy “has deliberately attempted to circumvent the provisions of the [Maryland] Code and the Maryland Rules, so as to engage in an extensive and systematic practice of law [in the State of Maryland], both in Court and out of Court, while not being licensed to practice in the State of Maryland.” On this appeal Kennedy does not challenge the trial court’s fact-findings. He questions only the scope of the permanent injunction which was issued against him, contending (1) that he may maintain an office in Maryland for the practice of “federal” and “non-Maryland” law, and (2) that in certain particulars the injunction is overbroad.

For the reasons hereinafter set forth, we basically reject Kennedy’s first contention but agree with portions of his second contention. In March of 1977 Kennedy was admitted by examination to the District of Columbia Bar. Kennedy continued his then full-time job with the Department of State and practiced law for his own account in the evening out of offices at 1025 Fifteenth Street in the District of Columbia. Those offices were headed by the building’s owner, Milton E. Canter (Canter), who was also Washington counsel for a ⁶⁵¹ New York law firm.

Kennedy left the State Department in April 1978 and practiced full tíme as a solo practitioner in Washington. During that period the District of Columbia professional disciplinary authorities informally admonished Kennedy. In re Kennedy, 542 A.2d 1225 , 1281 n. 11 (D.C.App.1988). In May of 1981 Kennedy assisted, on an emergency basis, a member of the Maryland Bar, Van S. Powers (Powers), in a trial in Pennsylvania.

Thereafter Powers and Kennedy entered into an arrangement whereby Kennedy worked out of Powers’s office in Hyafctsville, Prince George’s County, Maryland under supervision and without making court appearances. That relationship ended acrimoniously in February 1984. Each attorney filed a disciplinary complaint against the other in the District of Columbia. Kennedy’s complaint against Powers was dismissed.

Kennedy’s appeal and exceptions to a recommendation that he be suspended for one year and one day were pending before the District of Columbia Court of Appeals when the instant case was tried in Montgomery County. Kennedy also sued Powers civilly and that claim was eventually settled. In that action Kennedy contended that he and Powers were partners. From December 15, 1981, until November 28, 1983, while Kennedy was working out of the office in Hyattsville, he was suspended by the District of Columbia authorities from the practice of law because of nonpayment of dues.

Kennedy states that he was unaware of the suspension, notice of which had been sent to Mm by registered mail. He explains that he did not go to the post office to pick up the registered mail because he assumed it was from one of Ms creditors. As soon as Kennedy learned of the suspension, he paid the dues and was reinstated. When Kennedy’s arrangement with Powers terminated, Kennedy formed a partnership for the practice of law with Edward Jasen (Jasen), a member of the Maryland and District of Columbia Bars, who was then sixty-seven or sixty-eight years of age.

Jasen had been practicing out of ⁶⁵² Canter’s office at. 1025 Fifteenth Street but Jasen’s income from his practice had diminished by approximately seventy-five percent due to the withdrawal from activity in Washington of the New York law firm with which Canter had been connected. Kennedy envisioned that the core of a practice with Jasen would be collection work for doctors in which the attorneys would utilize state of the art computerized procedures. Kennedy’s share of any firm profits was to be seventy-five percent and Jasen’s, twenty-five percent. The law offices of Jasen & Kennedy were established in 1984 in Silver Spring, Montgomery County, Maryland, first at 8720 Georgia Avenue and thereafter at 1015 Spring Street.

The heading of the firm’s legal stationery presents the Silver Spring address in the center while, in small type to the right of the heading, the address at 1025 Fifteenth Street, D.C. also appears. On the left of the heading of the stationery symbols indicate that Jasen is admitted in “MD., D.C. & U.S. Courts” and that Kennedy is admitted in “D.C. & U.S. Courts Only.” In the October 1985 yellow pages telephone directory of C & P Telephone Co. for Montgomery and Prince George’s counties, Kennedy’s name was listed in the lawyers’ section in bold type. His name was followed by a one and one-half by two inch box ad for “Jasen & Kennedy Silver Spring & D.C. Offices.” Only the Silver Spring address and telephone number were set forth in the ad which in part described the firm as engaged in “General Practice Of Law.” In the same yellow pages directory for October 1986 through September 1987 there appears in the “coupon section” a three and three quarter inch by one and three quarter inch ad for Jasen & Kennedy which gives only the Silver Spring address and telephone number. In the lawyers’ section of the yellow pages for that same twelve month period, under Kennedy’s name, is a one and a half inch by two inch ad for Jasen & Kennedy giving both the Silver Spring and Fifteenth Street addresses and telephone numbers.

Kennedy’s professional card also lists both addresses. ⁶⁵³ The address at 1025 Fifteenth Street was used by Jasen & Kennedy almost exclusively as a mail drop. Jasen & Kennedy had no office space reserved there, no employees there, paid no rent there but, through an arrangement with Canter, could receive mail and maintain a telephone listing there. Telephone calls placed to the Jasen & Kennedy listing for 1025 Fifteenth Street were electronically forwarded to the Silver Spring office. The trial court found that “[t]he purported office of the Defendant maintained in the District of Columbia is a sham and is not an office for the practice of law by the Defendant as defined by Rule l-312(b) of the Maryland Rules.” 1 Kennedy produced ninety percent of the business for the firm, and did eighty to ninety percent of the work done by the firm in the office.

The practice became sufficiently extensive to justify employing five secretaries. The collection practice, consisting principally of claims by Maryland based doctors against Maryland residents, involved approximately 4,200 open files when the firm’s computer system was converted to a new programming language. Whenever counsel was required physically to appear in a Maryland court, Jasen and Kennedy almost always presented themselves together before the court. But Jasen rarely moved for Kennedy’s pro hac vice admission pursuant to Rule 20 of the Rules Governing Admission to the Bar. 2 ⁶⁵⁴ Kennedy sat for and passed the February 1985 Maryland bar examination but was never admitted to the Maryland ⁶⁵⁵ Bar because of the unresolved disciplinary proceedings pending against him in the District of Columbia.

On November 13,1985, the Unauthorized Practice of Law Committee of the Montgomery County Bar Association wrote to Kennedy advising him of complaints and of the committee’s willingness to accept Kennedy’s “certification as an officer of the Court of Appeals for the District of Columbia” that he would immediately desist performing any activities which constituted the practice of law in Maryland. Under date of November 29, 1985, as D.C. Bar Member No. 924068, Kennedy signed the following certification: “I CERTIFY that I will immediately and henceforth comply with the Maryland Rules Governing Admission to the Bar, and specifically with Rule 20 and with Article 10 of the Annotated Code of Maryland and that I will not engage in the practice of law in the State of Maryland without having been admitted to practice in accordance with the referenced Rules and Statute.”[ 3 ] Thereafter Kennedy continued to represent clients before Maryland courts without seeking a Rule 20 admission. In a May 12, 1986 letter to a representative of the Montgomery County Bar Association, Kennedy represented that he had “continued to abide by the certification” which he had made in November 1985. Under cross-examination at the trial of this case Kennedy admitted that his May 1986 representation was not true.

In the fall of 1986 and through the winter of 1987 Kennedy, in the company of Jasen and without seeking a Rule 20 admission, presented himself as defense attorney in several criminal matters before Judge L. Leonard Ruben in ⁶⁵⁶ the Circuit Court for Montgomery County. 4 They involved either guilty pleas or dispositions following guilty pleas. At trial in this case Kennedy’s explanation was that he “[j]ust messed up.” He said: “[W]e tried to do what we thought was right. And, like I said, I think the particular moving force of that was always my father, and not wanting to be any kind of embarrassment to him. But I—I can’t explain it other than I didn’t [seek Rule 20 admission].

I don’t fault Ed Jasen. I don’t fault anybody. I'm an attorney. I take pride in the work that I do, and I think that I do good work.” In April 1987 the Bar Association of Montgomery County filed in the circuit court for that county a complaint against Kennedy seeking interlocutory and permanent injunctive relief against his unauthorized practice of law, based on Md.Code (1957, 1987 Repl.

Yol.), Art. 10, §§ 1, 26A, and 32(a). 5 The court issued a preliminary injunction on May 14, ⁶⁵⁷ 1987. Trial on the issue of a permanent injunction was held over four days concluding April 19, 1988, when the court issued the injunction now on appeal. Witnesses included Judge Ruben, clients of Kennedy, Kennedy’s personal secretaries, an attorney who had referred his client to Kennedy, an investigator who had sought Kennedy’s representation in defense of a purported DWI charge in Maryland, Powers, Jasen, and Kennedy. Their testimony, together with court files and audio tapes of court proceedings, fully support the circuit court’s general and specific conclusions concerning Kennedy’s practicing law in Maryland.

In addition to fact-findings previously set forth, the circuit court found: “3. The Defendant has failed to comply with the letter or the spirit of [the preliminary injunction]. “5. The Defendant has given legal advice to clients for pay or reward within the State of Maryland.... ⁶⁵⁸ “6. The Defendant has represented various persons before the Courts of the State of Maryland____ “7.

The Defendant has prepared written instruments, including Wills and Court pleadings, within the State of Maryland.... “8. The Defendant has signed and filed pleadings and papers in various Courts within the State of Maryland, without having such documents co-signed by an attorney admitted to practice in the State of Maryland____ “9. The Defendant has repeatedly ignored and violated the mandates of Maryland Rule 20 after notice from the Bar Association of Montgomery County and a specific agreement by the Defendant to comply with this Rule. “10. The Defendant’s actions prejudice the interests of the general public and, specifically, people who consult him, because they ... have no protection of the Client Security Fund of the State of Maryland, and their potential recovery in valid claims is reduced by the Defendant's inability to litigate such claims in the Maryland Courts.

"11. The Defendant’s contention that he is practicing ‘Federal Law’ within the State of Maryland is not supported by the evidence. “12. The Defendant’s contention that his legal work within the State of Maryland is supervised and controlled by his partner, Edward Jasen, is not supported by the evidence, but, to the contrary, the Court finds that the witness, Edward Jasen, the Defendant’s partner, actively assists the Defendant in the unauthorized practice of law and receives financial benefit as a result thereof. “13. The Court finds that this is an extraordinary case, which requires extraordinary measures to protect the interests of the public.” The day after the Circuit Court for Montgomery County entered its permanent injunction the District of Columbia Court of Appeals filed its opinion in Kennedy’s grievance matter.

The court sustained the findings of the District of Columbia Board on Professional Responsibility that Kennedy ⁶⁵⁹ “violated Disciplinary Rule (DR) 3-101(B) by engaging in the practice of law while under suspension and DR 1-102(A)(4) by (1) failing to remit to his law firm [Powers] a retainer fee received from a firm client, (2) instructing another client of the firm to send payment to his new office after he had left the firm, and (3) misrepresenting his current salary to the loan office of a savings and loan institution.” In re Kennedy, 542 A.2d at 1226 (footnotes omitted). That court ordered that Kennedy be suspended for ninety days. In Montgomery County, Kennedy noted an appeal from the injunction and petitioned this Court to issue the writ of certiorari. We granted Kennedy’s petition prior to consideration of the matter by the Court of Special Appeals.

It is important to make plain at the outset what this case is and is not. It is a case of a person who is not admitted to practice law in Maryland holding himself out to the public as an attorney engaged in the general practice of law in Maryland from a principal office in Maryland. “The goal of the prohibition against unauthorized practice is to protect the public from being preyed upon by those not competent to practice law—from incompetent, unethical, or irresponsible representation.” In re Application of R.G.S., 312 Md. 626, 638 , 541 A.2d 977, 983 (1988). Here, Kennedy’s difficulties in conforming to ethical standards which ultimately caused his suspension in the District of Columbia have obstructed Ms admission to the bar in Maryland. This is not a case involving an interstate partnership of the type envisioned in ABA Comm, on Professional Ethics and Grievances, Formal Op. 316 (1967).

One of the conclusions of that opinion was that “[t]he Canons of Ethics do not prohibit a lawyer in State I from entering into an arrangement with a lawyer in State II for the practice of law by which they share in the responsibility and liability of each other, if they indicate the limitations on their practice in a manner consistent with the canons. Subject to the same limitations, offices ⁶⁶⁰ of the firm could be opened in both states. Of course, only the individuals permitted by the laws of their respective states to practice law there would be permitted to do the acts defined by the state as the practice of law in that state, but there are no ethical barriers to carrying on the practice by such a firm in each state so long as the particular person admitted in that state is the person who, on behalf of the firm, vouched for the work of all of the others and, with the client and in the courts, did the legal acts defined by that state as the practice of law.” Cf. Florida Bar v. Savitt, 363 So.2d 559 (Fla.1978) (presenting a list of prohibited and permitted activities by members of an interstate partnership). 6 Nor does this case involve defining the degree of activity in Maryland which will constitute the unauthorized practice of law in Maryland by an attorney unadmitted in Maryland who maintains a principal office for the practice of law in that attorney’s jurisdiction of admission.

Compare Spanos v. Skouras Theatres Corp., 364 F.2d 161 (2d Cir.), cert. denied, 385 U.S. 987 , 87 S.Ct. 597 , 17 L.Ed.2d 448 (1966) (in banc) (client liable for fees for out-of-court services rendered over five year period by attorney admitted in California in connection with antitrust case pending in federal court in New York where, if application had been made, California attorney would have been admitted pro hac vice) and Appell v. Reiner, 43 N.J. 313 , 204 A.2d 146 (1964) (client’s promise to pay fees enforceable where New York attorney’s services in New Jersey, where attorney was not admitted, were inseparable from New York aspects of the overall transaction) with Spivak v. Sachs, 16 N.Y.2d 163 , 263 N.Y.S.2d 953 , 211 N.E.2d 329 (1965) (client not liable for fee to attorney admitted in California for advice rendered ⁶⁶¹ over two week period in New York concerning divorce proceedings in Connecticut). I Kennedy submits that the injunction fails to recognize and exclude from its prohibitions his claimed right to practice federal and non-Maryland law. This contention has two aspects. The first prong of the argument rests on Kennedy’s status as a member of the bar of the United States District Court for the District of Maryland.

That court, of course, controls whom it will recognize as members of its bar. It is not a matter within the direct control of any state court. The decree in this case is not to be interpreted to prohibit Kennedy from appearing before the United States District Court for the District of Maryland any more than it could be interpreted to prohibit appearance before the District of Columbia Court of Appeals where Kennedy is also admitted. Kennedy’s right to practice before the local federal court is not limited to physical presence before that court’s judges, bankruptcy judges, and magistrates.

The scope of Kennedy’s activity as a member of the bar of the federal court in Maryland is analogous to the problem presented in Sperry v. Florida, 373 U.S. 379 , 83 S.Ct. 1322 , 10 L.Ed.2d 428 (1963). Federal statutes authorize the Commissioner of Patents to prescribe regulations governing the recognition and conduct of agents, attorneys and other persons representing applicants before the Patent Office. Sperry, who was a patent agent recognized by the Commissioner of Patents, maintained an office in Tampa, Florida where he held himself out to the public as practicing patent law. The Supreme Court of Florida enjoined Sperry from engaging in the practice of law, including specific prohibitions against rendering legal opinions as to patentability and infringement, and against holding himself out as qualified to prepare and prosecute applications for letters patent. ⁶⁶² Applying the Supremacy Clause the Supreme Court vacated and remanded the decree “since it prohibits [Sperry] from performing tasks which are incident to the preparation and prosecution of patent applications before the Patent Office.” Id. at 404 , 83 S.Ct. at 1336 , 10 L.Ed.2d at 443 .

By a parity of reasoning we construe the injunction in this case not to prohibit Kennedy from performing tasks which are incident to the preparation and prosecution of specific clients’ claims or defenses in matters pending before or to be presented to the United States District Court for the District of Maryland. 7 B Kennedy further contends that he is free to practice federal and non-Maryland law from his Silver Spring office. This argument does not turn on the tribunal before which a specific item of litigation is pending or is to be filed on behalf of a specific client. The argument turns on the substantive law applicable or potentially applicable to the client’s matter and takes us into the area of office practice. But unauthorized practice of law as prohibited by Art. 10, § 1 is not limited to practice utilizing the common law and statutes of Maryland.

That construction of the statute would defeat the goal of protecting the public from incompetent and/or unethical practitioners and would be impossible to apply and enforce in the real world. Utilizing legal education, training, and experience an attorney applies the special analysis of the profession to a client’s problem. Depending on the problem, that analysis may require consideration of federal, state, local or foreign law. Kennedy’s theory of how Art. 10, § 1 operates would permit the unadmitted attorney to enter into attorney-client relationships and permit the unadmitted attorney to advise the client concerning only a portion of the general legal spec- ⁶⁶³ tram but then prohibit the unadmitted attorney from advising as to the balance of the spectrum.

As the cases reviewed below, relatively speaking, make plain, advising clients by applying legal principles to the client’s problem is practicing law. When Kennedy, who is unadmitted in Maryland, set up his principal office for the practice of law in Maryland and began advising clients and preparing legal documents for them from that office, he engaged in the unauthorized practice of law. This is so whether the legal principles he was applying were established by the law of Montgomery County, the State of Maryland, some other state of the United States, the United States of America, or a foreign nation. Ginsburg v. Kovrak, 392 Pa. 143 , 139 A.2d 889 (1958) is on point.

A member of the bar of federal courts, including the United States District Court for the Eastern District of Pennsylvania, held himself out as an attorney entitled to practice law in Philadelphia, Pennsylvania although he was not a member of the Pennsylvania bar. Kovrak’s specialty was federal taxation. He argued to the Court of Common Pleas of Philadelphia, on exceptions to a chancellor’s findings, that he was practicing only federal law. The Court of Common Pleas rejected the argument, saying: “The distinction is so dim that we think none exists.

As the Chancellor has pointed out, what with only such Federal questions as taxation and basic due process, defendant would have a large field in which to practice. The real point concerns practicing law of any kind and being subject to regulation as to mental and character fitness in the public interest.” 139 A.2d at 893 . In a per curiam opinion the Supreme Court of Pennsylvania affirmed, stressing that the injunction prohibited the maintenance of an office and the practice of law in the Commonwealth of Pennsylvania and prohibited Kovrak from advertising that he was authorized to practice law in Pennsylvania. The injunction was said in no way to have ⁶⁶⁴ affected Kovrak’s right to practice before federal courts.

Kovrak's appeal to the United States Supreme Court was dismissed for want of a substantial federal question. 358 U.S. 52 , 79 S.Ct. 95 , 3 L.Ed.2d 46 (1958). In Leis v. Flynt, 439 U.S. 438, 443 , 99 S.Ct. 698, 701 , 58 L.Ed.2d 717, 723 (1979), the Court cited Ginsburg v. Kovrak for the proposition that “the Constitution does not require that because a lawyer has been admitted to the bar of one State, he or she must be allowed to practice in another.” Also instructive is In re Roel, 3 N.Y.2d 224 , 165 N.Y.S.2d 31 , 144 N.E.2d 24 (1957), appeal dismissed, 355 U.S. 604 , 78 S.Ct. 535 , 2 L.Ed.2d 524 (1958). Lorenzo Roel was a lawyer admitted to practice in the courts of Mexico but was not admitted in New York where he maintained an office as a “Registered Consulate,” a fact which he advertised in daily newspapers. He advised members of the public on Mexican law.

This activity was enjoined as the unauthorized practice of law. The court held: “We are here examining the nature of the activities performed by appellant, not the sources of authority of the law which he practices. Whether a person gives advice as to New York law, Federal law, the law of a sister State, or the law of a foreign country, he is giving legal advice. Likewise, when legal documents are prepared for layman by a person in the business of preparing such documents, that person is practicing law whether the documents be prepared in conformity with the law of New York or any other law.” Id. at 229, 165 N.Y.S.2d at 35 , 144 N.E.2d at 26 .

The court further explained that “[p]rotection of the members of the lay public of our State, when they seek legal advice—and that is what defendant purported to furnish—is the basis of the requirements of licensing of attorneys by the State, and this protection must be deemed to embrace whatever