Anne Arundel County Bar Ass'n, Inc. v. Collins, 1

• Decision Date: 09 October 1974
• Docket Number: No. 1,1
• Citation: 272 Md. 578,325 A.2d 724
• Parties: ANNE ARUNDEL COUNTY BAR ASSOCIATION, INC. v. John Sellers COLLINS. Misc. (Subtitle BV),
• Court: Maryland Court of Appeals

Page 578

272 Md. 578

325 A.2d 724

ANNE ARUNDEL COUNTY BAR ASSOCIATION, INC. v. John Sellers COLLINS.

Misc. (Subtitle BV), No. 1.

Court of Appeals of Maryland.

Oct. 9, 1974.

William A. Franch, Annapolis, Joseph P. Manck and Goldsborough & Franch, Annapolis, on the brief), for John Sellers Collins.

Ronald A. Baradel, Annapolis (Roy D. Cromwell, Annapolis, on the brief), for Anne Arundel County Bar Association, Inc.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

LEVINE, Judge.

This disciplinary proceeding was instituted on March 1, 1973, when the Anne Arundel County Bar Association, Inc. (the Bar Association) filed a petition in this Court against respondent, John Sellers Collins. Two charges were lodged against him, which dealt essentially with allegations that in his position as attorney for the Board of License Commissioners, he had bribed two members of that board in order to influence their decisions regarding two applications for alcoholic beverage licenses.

Pursuant to Maryland Rule BV3, this Court passed an order directing that the charges be transmitted to the Circuit Court for Anne Arundel County to be heard and determined by a panel of three judges of the Fifth Judicial Circuit. After extensive proceedings in that court, the panel, which ultimately concluded the matter, recommended that respondent be disbarred from the practice of law in this state. He then filed timely exceptions in this Court to that recommendation.

On May 9, 1969, the Grand Jury for Anne Arundel County returned five indictments containing nine counts charging respondent with criminal offenses related to violations of the Maryland bribery laws. The charges were removed to the Circuit Court for Washington County, and came on for trial before that court on June 22, 1970. Respondent was found guilty on all counts and received concurrent two-year sentences. His conviction was reversed by the Court of Special Appeals in Collins v. State, 12 Md.App. 239, 278 A.2d 311 (1971), on the ground that the State's taking of the deposition of one of the Board members, David L. Sullivan, on July 19, 1969, in the absence of respondent, 'violated . . . his (respondent's) right to be confronted with Sullivan, who was a witness against him, as guaranteed by the federal and State constitutions.' 12 Md.App. at 250, 278 A.2d at 317.

We granted the State's petition for Writ of Certiorari and affirmed the judgment of the Court of Special Appeals in State v. Collins, 265 Md. 70, 288 A.2d 163 (1972). In an opinion written for this Court by Judge Digges, we held the failure to comply with the requirements of Rules 727 and 775, that the accused 'be present at the taking of a deposition' taken 'at the instance of the prosecution,' to be of constitutional dimension under the Sixth and Fourteenth Amendments to the Federal Constitution and Article 21 of the Maryland Declaration of Rights; and that the constitutional right of the accused to be confronted by the witness had not been waived. ¹

Following our decision, the Bar Association elected to initiate disciplinary proceedings. Previously, on June 24, 1970, the day following respondent's conviction, a meeting of the Executive Committee of the Bar Association had been held to consider the commencement of disciplinary proceedings against respondent. What followed was an agreement between the parties whereby the charges were to be withheld pending review of the conviction by the Court of Special Appeals in exchange for respondent's self-imposed suspension from the practice of law. He also indicated that in the event he was unsuccessful on appeal, he would tender his resignation from the Bar pursuant to Rule BV6.

In excepting to the recommendation of disbarment, respondent raises these contentions, all of which were also considered by the panel:

1. That the disciplinary proceedings are barred by limitations and laches.

2. That under the Maryland Rules of Procedure, the deposition of David L. Sullivan-which had been the basis for reversal of the criminal conviction-should not have been admitted in evidence before the panel.

3. That the deposition should have been suppressed on constitutional grounds because it violated respondent's right to be confronted by his accuser.

4. That the panel should have disqualified itself.

We find it unnecessary to consider the third question.

(1)(a)

In contending that these proceedings are barred by limitations and laches, respondent observes that despite his indictment by the Grand Jury on May 9, 1969, the Bar Association did not actually file its petition in this Court until March 1, 1973. During that interval, the following events ensued: On June 23, 1970, he was convicted; on the following day-June 24-the meeting was held which resulted in his voluntarily imposed suspension; on June 9, 1971, the Court of Special Appeals reversed the conviction; on March 15, 1972, that decision was affirmed by this Court, which resulted in the issuance of the mandate thirty days later; and on November 21, 1972, the Executive Committee of the Bar Association voted to initiate these proceedings.

In asserting limitations, respondent advances a twofold contention. First, he argues that the general three-year period of limitations set forth in Maryland Code (1957, 1972 Repl.Vol.) Art. 57, § 1 applies; and since the cause of action accrued on May 9, 1969-the date of the indictment-more than three years elapsed before the petition was filed on March 1, 1973. Secondly, he relies on Code (1957, 1968 Repl.Vol.) Art. 10, §§ 12 and 13, claiming that the Bar Association was required 'to prosecute the charges' not 'more than sixty days from the date' of a court order directing it to do so. ² There is no merit in either contention.

Although it does not appear that we have considered the question previously, courts elsewhere have uniformly held that disciplinary proceedings against attorneys are not barred by a general statute of limitations, In Re Heinze, 233 Minn. 391, 47 N.W.2d 123, 125 (1951); In Re Woodward, 300 S.W.2d 385, 387 (Mo.1957); State v. Bates, 162 Neb. 652, 77 N.W.2d 302, 304 (1956); In Re Wright, 131 Vt. 473, 310 A.2d 1, 9 (1973); see In Re Ratner, 194 Kan. 362, 399 P.2d 865, 873 (1965); Harrison v. Commonwealth, 305 Ky. 379, 204 S.W.2d 221, 222 (1947). This is so primarily because a disciplinary proceeding is neither an action at law, Maryland St. Bar Ass'n v. Boone, 255 Md. 420, 430, 258 A.2d 438 (1969); Braverman v. Bar Ass'n of Balto., 209 Md. 328, 121 A.2d 473 (1956), cert. denied, 352 U.S. 830, 77 S.Ct. 44, 1 L.Ed.2d 51 (1956); nor a criminal prosecution, Balliet v. Balto. Co. Bar Ass'n, 259 Md. 474, 478, 270 A.2d 465 (1970); Braverman v. Bar Ass'n of Balto., supra, at 348, 121 A.2d 473. In Braverman, supra, we said:

'The action of a court in exercising its power to disbar or suspend an attorney is judicial in character, but the inquiry is in the nature of an investigation by the court into the conduct of one of its own officers, and is not the trial of an action at law, as the order which is entered is only an exercise of the disciplinary jurisdiction which a court has over ts officers. . . .' 209 Md. at 336, 121 A.2d at 477.

We hold that the general period of limitations prescribed by Art. 57, § 1 does not apply to disciplinary proceedings brought against members of the Bar.

The contention that this proceeding was not brought within the sixty-day period specified in Art. 10, § 12 is equally without merit. We have just rejected precisely the same argument in Maryland State Bar Association, Inc. v. Frank, Md., 325 A.2d 718 (1974) (Misc.Docket (Subtitle BV) No. 10, September Term, 1974, decided October 7, 1974) where after noting our prior disposition of the identical question in Balliet, supra, we held that the sixty-day time limitation is directory, not mandatory. That holding is dispositive here, and therefore, compels a rejection of respondent's contention.

(1)(b)

For his defense of laches, respondent relies chiefly upon two Florida cases: The Florida Bar v. Randolph, 238 So.2d 635 (Fla.1970) and The Florida Bar v. Wagner, 197 So.2d 823 (Fla.1967). Neither is apposite, primarily because, unlike this case, they did not arise out of criminal charges. In this connection, it is interesting to note that in a Florida case not cited by respondent-where commencement of the disciplinary proceedings was deferred pending appellate review of criminal charges-the Florida Supreme Court observed that deferment in such circumstances was the course recommended by a special committee of the American Bar Association chaired by Mr. Justice Tom C. Clark. The Florida Bar v. Craig, 238 So.2d 78 (Fla.1970). In any event, respondent has cited no cases in which disciplinary proceedings against an attorney have been dismissed upon the ground of laches.

What the Supreme Court of Oregon said regarding the defense of laches in In Re Weinstein, 254 Or. 392, 459 P.2d 548 (1969), cert. denied, 398 U.S. 903, 90 S.Ct. 1689, 26 L.Ed.2d 61 (1970), where it was held that a bar association delay of twenty-seven months did not justify dismissal, is instructive here:

'It is unnecessary to define in this case the proper remedy for vexatious and unreasonable delay on the part of the Bar. None has been shown in this case. It ought to be made clear, however, that the primary purpose of professional disciplinary proceedings is to protect the public. The punishment of an offending member of the profession is indeed a serious matter, but it is incidental to the protection of the public. If the conduct of a member of the Bar disqualifies him from the practice of law, it would not be in the public interest to dismiss the disciplinary proceedings for no reason other than the Bar's failure to prosecute them with the proper dispatch.' 459 P.2d at 549 (emphasis added).

Basic to the defense of laches is the need to show some disadvantage or prejudice to the party...