Maryland State Bar Ass'n v. Frank

⁵³⁰ Digges, J., delivered the opinion of the Court. With the institution of this disciplinary proceeding, the petitioner, the Maryland State Bar Association, Inc., seeks to have this Court impose appropriate sanctions against the respondent, Robert Harry Frank, a member of the Maryland Bar, alleging that he is guilty of “professional misconduct, bribery or other criminal activities.” Specifically, the Bar Association’s petition alleges: “A On the late evening of September 21 or early morning of September 22, 1972, the defendant attempted to bribe then Deputy State’s Attorney for Baltimore County, Stuart E. Hirsch, by the payment to him of the sum of Three Thousand Dollars ($3,000.00) in order to influence unlawfully Mr. Hirsch’s official actions either in (a) certain criminal actions pending in Baltimore County in which the defendant Frank was acting as counsel or advisor to defendants charged by the State’s Attorney for Baltimore County with the commission of certain crimes or (b) in a charge against the defendant Frank, himself, for a violation of Article 27, Section 125 (a) of the Annotated Code of Maryland (1971 Replacement Volume) which had been referred by the State’s Attorney for Baltimore County to the State’s Attorney for Baltimore City for possible indictment and prosecution of the defendant himself. “B During the criminal trial against him in Kent County and in proceedings before the Grievance Committee on May 17, 1973, the defendant herein admitted the payment of Three Thousand Dollars ($3,000.00) to Mr. Hirsch for the purpose of influencing Mr. Hirsch’s actions in the matter of the alleged violation of the aforesaid Article 27, Section 125 (a) of the Annotated Code of Maryland, which had been referred to the State’s Attorney for Baltimore City and further admitted that he failed ⁵³¹ to advise any responsible law enforcement agency of said payment.” Upon the filing of the petition, this Court directed, as authorized by Maryland Rule BV3 b, that the proceeding be referred to the Supreme Bench of Baltimore City for a hearing to be conducted by Judges J. Harold Grady, Basil A. Thomas and Marshall A. Levin. Following an evidentiary hearing, which was conducted with respondent and his counsel present and fully participating, that panel caused the record of those proceedings, which included its recommendation for disposition of the charges and reasons therefor, to be transmitted to this Court. Rule BV5.

The record reports that the judicial panel, after reviewing critically all of the evidence, factually concluded that: “The evidence in this matter is clear and convincing that Respondent was guilty of professional misconduct. He attempted to bribe a public prosecutor by paying said prosecutor $3,000.00 in order to influence said prosecutor unlawfully and unethically in either (a) the criminal indictments then pending against Jones., Everson and Pickett wherein Respondent was either counsel or advisor to said defendants and/or (b) a charge against Respondent himself for a violation of Article 27, Section 125 (a) of the Annotated Code of Maryland which had been referred by the State’s Attorney for Baltimore County to the State’s Attorney for Baltimore City for possible indictment and prosecution of Respondent himself.” The hearing court, after determining that: “Such actions constitute a violation of Canon 1, DR 1-102 Misconduct (A) A lawyer shall not: ... (3) engage in illegal conduct involving moral turpitude or (4) engage in conduct involving dishonesty, fraud, deceit or misrepresentation or (5) engage in conduct that is prejudicial to the administration of ⁵³² justice or (6) engage in any other conduct that adversely reflects on his fitness to practice law recommended the disbarment of the respondent from the further practice of law in this State. After this Court received the record, Frank promptly filed exceptions (Rule BV5 b 2) which put forth a number of reasons in support of his assertion that disbarment is not warranted.

The respondent first contends that the panel committed error when it denied his motions to dismiss the petition because of failure both (a) to comply with the statutory time requirements of Maryland Code (1957, 1968 Repl. Vol.), Art. 10, §§12 and 13, and (b) to provide him with a “speedy trial.” In support of respondent’s first point, he urges that these Code sections, which require a bar association or state’s attorney “to prosecute the charges ... on a day specified [by order of court] . . ., which day. shall not be less than fifteen or more than sixty days from the date of said order,” were not followed. Frank correctly points out that the hearing before the panel of judges was held more than sixty days (approximately five months) after the disbarment petition was filed. He then relies on the wording of §§ 12 and 13 and our language which discussed these statutory provisions in Balliet v. Balto.

Co. Bar Ass’n, 259 Md. 474 , 270 A. 2d 465 (1970) to support his contention that when the charges were not “prosecuted” within the sixty-day period, the petition should have been dismissed. We conclude, however, that neither our opinion in Balliet nor these Code provisions dictate such a result. The respondent’s reliance on our decision in Balliet is misplaced, as the language we used in that case is inapposite to the argument being made here. This is so as we determined in Balliet that, even if the required sixty-day time period under § 12 is also applicable to a petition filed by a bar association pursuant to § 13, the disbarment hearing there was conducted within that statutory period.

We point out that this conclusion was reached in that prior case only after making the following assumptions concerning §§12 and 13: ⁵³³ “1) this oblique statutory phraseology imposes a sixty day prosecution time limit on the very same bar association which filed the petition initially, 2) this unique requirement is mandatory rather than directory, and 3) the procedural aspects of both sections have not been superseded by Rules BV4 and 5 (where there are no specific time limits) 259 Md. at 477 . While it is true that the word “shall” appears in the statute as it pertains to the sixty-day time limitation, nevertheless, after again making the first and third assumptions mentioned in Balliet and further assuming that the sixty-day limit refers to completion rather than initiation of “prosecution,” we now hold that this time check is not mandatory but directory, and thus there is no loss of jurisdiction to pass upon the bar association’s petition. Although, ordinarily the use of the word “shall” indicates a mandatory provision and therefore it is presumed that the word is used with that meaning, this is not so if the context indicates otherwise, as we believe it does here. Ginnavan v. Silverstone, 246 Md. 500, 505 , 229 A. 2d 124 (1967).

Though not controlling, we think it is of some significance in this regard that the language of the statute provides no penalty for failure to act within the time prescribed. Of more importance, it is clear that the broad policy of the law regulating conduct of attorneys authorized to practice law in this State is designed for the protection of the public, Maryland St. Bar Ass’n v. Agnew, 271 Md. 543, 549 , 318 A. 2d 811 (1974), and that purpose would be largely vitiated if respondent’s restrictive interpretation were to prevail. These assertions justify the conclusion, we think, that the legislature intended the time direction of the statute to be directory and not mandatory. This result is in accord with the previous decisions of this Court which have considered the use of the word “shall” to be directory when used in similar statutes or rules.

See Pressley v. Warden, 242 Md. 405, 406-07 , 219 A. 2d 25 (1966) (judge did not render decision within two months after case was argued or submitted as required by Art. IV, § 23 of the Maryland Constitution and ⁵³⁴ by Rule 18 a); Holt v. Warden, 223 Md. 654, 657 , 162 A. 2d 743 (1960) (sentence not passed within two-month period); Myers v. State, 218 Md. 49, 51 , 145 A. 2d 228 (1958), cert. denied, 359 U. S. 945 (1959) (writ of error corara nobis not ruled on until after two months had elapsed); Snyder v. Cearfoss, 186 Md. 360, 370 , 46 A. 2d 607 (1946) (ruling on a motion for new trial not given until two months after the date of hearing). We also reject the suggestion that the respondent was denied a “speedy trial.” While it is true that both Article 21 of the Maryland Declaration of Rights and the sixth amendment of the federal constitution guarantee a speedy trial to all who are criminally accused, each of these provisions relates expressly to criminal proceedings and they are therefore inapplicable to civil matters, Wood v. Director, 243 Md. 731 , 223 A. 2d 175 (1966); McCloskey v. Director, 230 Md. 635, 637 , 187 A. 2d 833 , cert. denied, 374 U. S. 851 (1963), including disciplinary proceedings against an attorney. Balliet v. Balto. Co. Bar Ass’n, supra at 478; Braverman v. Bar Assn. of Balto., 209 Md. 328, 336 , 121 A. 2d 473 , cert. denied, 352 U. S. 830 (1956).

Additionally, although Article 19 of the Declaration of Rights gives a civil litigant the right to a trial “speedily without delay,” it is clear that this has been accorded the respondent in this case. The record shows that though the bar association was ready to proceed with the hearing at all times after the petition was filed, the five-month delay, from the filing of the initial petition on September 12, 1973 to the hearing before the panel on February 19, 1974, even assuming that this time lapse is long enough to somehow suggest an intrusion on the respondent’s rights, was occasioned at the specific request of the respondent for a continuance to obtain counsel and