Montgomery County Bar Ass'n v. Haupt

ORDER The Court having considered the Findings and ³²⁷ Recommendation of the majority and dissenting members of the panel of judges, the exceptions thereto filed by the Respondent and by the Montgomery County Bar Association, the answers thereto filed by the respective parties, and arguments of counsel, and the Court having further considered the Motion to Tax Costs filed by the Montgomery County Bar Association and the Motion to Tax Costs and For Attorneys Fees filed by the Respondent, it is this 15th day of March, 1976 ORDERED, by the Court of Appeals of Maryland, that the findings and the recommendation of the majority of the panel of judges as to the Juvenile matter be, and they are hereby, adopted; and it is further ORDERED that the findings of fact of the panel of judges with respect to the Clem matter be, and they are hereby, adopted, and that the recommendation of the panel that Respondent be suspended from the practice of law for one year is not adopted; and it is further ORDERED that, accepting the findings of fact of the panel of judges with respect to the Clem matter, the Respondent, Bruce Widenor Haupt, be, and he is hereby, suspended from the practice of law in the State of Maryland for a period of thirty days to begin April 14, 1976: and it is further ORDERED, pursuant to the provisions of Rule BY15 a, that the Attorney Grievance Commission pay the sum of two thousand three hundred seventy-two dollars and fifty cents, ($2,372.50) to John W. Whitman, Court Reporter, and that the Respondent and Montgomery County Bar Association pay the costs and expenses respectively incurred by each in these proceedings; and it is further ORDERED that Respondent’s motion for payment of Attorneys’ Fees is denied. FINDINGS AND RECOMMENDATION OF PANEL This matter is before the Court, sitting as a three Judge panel by designation of the Chief Judge of the Court of Appeals, to hear and make recommendations with respect to ³²⁸ certain charges brought by the petitioner against the respondent as a member of the Maryland Bar and a practicing attorney within the State. Disciplinary sanctions are sought in accordance with the provisions of the BV Rules. The respondent is charged in two separate instances involving two separate complainants.

The first will be referred to as the Juvenile * matter and the second as the Clem matter. With respect to the Juvenile matter, the respondent is charged with acts constituting a. Conduct involving dishonesty, fraud, deceit and misrepresentation; b. Conduct prejudicial to the administration of justice; c.

Conduct that adversely reflects on his fitness to practice law. All of the alleged conduct is claimed to be in violation of Canon 1 of the Code of Professional Responsibility and Disciplinary Rule 1-102 (A). The misconduct alleged is set forth in the petition as consisting of the following specific activities: 1. The respondent is charged “in approximately between June and October 1973” with picking up the Juvenile, a girl 16 years of age, who was hitchhiking in Montgomery County, Maryland, and that while in respondent’s automobile, the Juvenile and the respondent, at the suggestion of the respondent, smoked marijuana cigarettes furnished by the respondent, and that the respondent then took the Juvenile to an apartment in Silver Spring, Maryland, where he attempted to take sexual liberties with her, and that on several occasions during the following year, respondent telephoned the Juvenile and was informed by her of her desire to be emancipated and removed from the jurisdiction of the Juvenile Court for Montgomery County, Maryland. ³²⁹ 2.

That on or about July 3, 1974 the respondent procured his appointment by the District Court of Maryland, sitting as a Juvenile Court, as guardian ad litem of the Juvenile. 3. That on or about July 4, 1974 the respondent visited the Juvenile in Prince George’s County Hospital where she was recuperating from an appendix operation and there attempted to take sexual liberties with her. 4. That on or about August 6,1974 the respondent went to the apartment occupied by the Juvenile and produced a substance which he identified as hashish which, at his urging, was smoked by the Juvenile and the respondent and that thereafter, on the same date, respondent assaulted the Juvenile and attempted to have sexual relations with her against her will and that when she resisted the respondent threatened to have her re-committed by the Juvenile Court unless she cooperated. With respect to the Clem matter, the respondent is charged with conduct constituting a.

Knowing engagement in illegal conduct and conduct contrary to Canon 7 of the Code of Professional Responsibility and Disciplinary Rule 7-102 (A) (8). b. Communication with a party he knew to be represented by a lawyer on the subject covered by that representation without the prior consent of that lawyer in violation of Canon 7 of the Code of Professional Responsibility and Disciplinary Rule 7-104 (A) (1). c. Conduct adversely reflecting on respondent’s fitness to practice law and prejudicial to the administration of justice in violation of Canon 1 of the Code of Professional Responsibility and Disciplinary Rule 1-102 (A). The allegations with respect to these charges assert that on or about February 20, 1975 the respondent, while representing Patricia M. Clem, in a domestic relations matter, committed an assault upon Charles E. Clem, Patricia’s estranged husband, damaged his automobile, chased him at high and dangerous speeds over the public roads of Montgomery County and engaged in communications with the said Charles E. Clem regarding ³³⁰ the litigation between Mr. Clem and his wife, Patricia, with full knowledge that the said Charles E. Clem was represented by an attorney in that litigation.

Testimony was offered and evidence presented by the petitioner in respect to both the foregoing episodes. The respondent presented evidence only in the Juvenile matter. The panel will discuss each of these two matters separately. THE JUVENILE MATTER Petitioner’s evidence consisted of the testimony of the Juvenile, Judge Leonard Rubin of the Montgomery County Juvenile Court, the Juvenile’s father,.. ., and several other witnesses.

From this testimony it is apparent to a majority of this panel that the validity of the petitioner’s charges with respect to the specifically alleged episodes involving the Juvenile, depends almost entirely upon the unsupported testimony of the Juvenile herself. The witnesses produced by the petitioner to corroborate the Juvenile’s evidence either did not, in fact, provide that corroboration or testified in contradiction to some of her assertions and, in fact, in at least two instances tended to corroborate the respondent’s version of what occurred. Against this testimony, the respondent produced disinterested witnesses who testified as to the respondent’s activities on the day of the hitchhiking episode which made it impossible for the respondent to have been where the petitioner charges him with having been on that day. In addition, the respondent produced the hospital roommate of the Juvenile, again a disinterested witness, whose testimony accounted for nearly all of the time the Juvenile was in her hospital room and who was there when the respondent visited the Juvenile at the times the petitioner charges improper conduct.

This witness neither saw nor heard any improper conduct by the respondent. With respect to the episodes occurring at the Juvenile’s apartment in August of 1974, the respondent produced a corroborating witness whose testimony supported the respondent’s version of the events of that day. Finally, respondent produced witnesses who were acquainted with the Juvenile through the Juvenile ³³¹ Court, and who had dealt with her personally either as social workers or supervisors of a facility at which the Juvenile had stayed. These witnesses testified that the Juvenile was not a truthful person.

Without going into particular detail on each and every one of the episodes related and each and every portion of the testimony adduced, suffice it to say that, taking into consideration the patent inconsistencies and discrepancies in the Juvenile’s testimony and the lack of corroboration as to many of the material elements of her story, together with the denials and explanations of the respondent corroborated by independent, disinterested witnesses in many particulars, the majority of the panel is not persuaded that the petitioner has proven the specifications charged by the clear and convincing evidence required by the law applicable to disciplinary proceedings. Accordingly, the panel recommends that the charges arising out of the Juvenile’s episodes be dismissed. However, notwithstanding this