ATTORNEY GRIEVANCE COM'N OF MARYLAND v. Harper & Kemp, Misc. AG No. 1

• Citation: 356 Md. 53,737 A.2d 557
• Decision Date: 15 September 1999
• Docket Number: Misc. AG No. 1
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. T. Clarence HARPER and Versteal Kemp.
• Court: Court of Appeals of Maryland

737 A.2d 557

356 Md. 53

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. T. Clarence HARPER and Versteal Kemp.

Misc. AG No. 1, Sept. Term, 1998.

Court of Appeals of Maryland.

September 15, 1999.

Melvin Hirshman, Bar Counsel and John C. Broderick, Asst. Bar Counsel for the Attorney Grievance Com'n of Maryland, for petitioner.

Joseph L. Gibson, Jr., Riverdale, Othello G. Jones, Jr., Washington, DC, for respondents.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, RAKER, WILNER, CATHELL and ROBERT L. KARWACKI (retired, specially assigned), JJ.

RODOWSKY, Judge.

The principal charges in these jointly tried attorney discipline cases allege violations of Rule 5.5 (Unauthorized practice of law) of the Maryland Lawyers' Rules of Professional Conduct.¹ The violations concern a law office that operated in Baltimore City under the firm name, "Harper & Kemp," from May 1995 until sometime in 1997.

One of the respondents, T. Clarence Harper (Harper), is an attorney who is licensed to practice in the District of Columbia. Throughout the relevant period Harper maintained an office on Georgia Avenue in the District of Columbia. His practice primarily has consisted of representing claimants in personal injury cases. The other respondent, Versteal Kemp (Kemp), is an attorney who has been licensed to practice in Maryland since 1974. For some portion of the relevant period Kemp maintained an office on Auth Place in Prince George's County and later opened an office on Kenilworth Avenue in that county. His practice has been more general than that of Harper and has tended to concentrate in criminal defense work.²

I

The origins of Harper & Kemp trace back to two former Maryland attorneys who practiced in Baltimore City and who were disbarred by this Court, Fred Kolodner, see Attorney Grievance Comm'n v. Kolodner, 321 Md. 545, 583 A.2d 724 (1991),

and Burton M. Greenstein.³ Fred Kolodner's wife, Deborah Kolodner, was a principal in Industrial Medical Center, an enterprise which provided physical therapy and treatment facilities for automobile accident and workers' compensation claimants. After Fred Kolodner's 1991 disbarment, Greenstein, at least ostensibly, assumed Fred Kolodner's practice. Fred Kolodner worked in Greenstein's office, as did one Joseph Mitchell Somerville, also known as Al Mitchell (Mitchell). Mitchell testified that he had been a runner for Fred Kolodner, for which service he had been paid $200 to $600 a case by Deborah Kolodner. When the volume of cases was such that Fred Kolodner could not handle it, Mitchell worked in Kolodner's office, and later in Greenstein's office. He obtained and organized the documentation, principally in support of damages, that was needed to settle the cases with insurers. At some point prior to early 1995 federal law enforcement officers seized personal injury case files from Greenstein's office and stored them at a post office in Columbia, Maryland. It seems to be acknowledged by all of the parties in the instant matter that Deborah Kolodner, in some fashion that is not explained, controlled, or considered that she controlled, the cases that had been handled in Greenstein's office.

Harper & Kemp arose out of discussions between Deborah Kolodner and Harper in early 1995. The understanding was that Deborah Kolodner would refer the clients or files of Greenstein/Industrial Medical to Harper who would undertake to settle the cases. Harper thereafter discussed this arrangement with Kemp, which resulted in the opening of the Harper & Kemp office at 1010 St. Paul Street in Baltimore City.

There never was any written agreement between the two respondents as to the financial aspects of Harper & Kemp. At the hearing in this matter they disagreed as to whether any oral agreement ever had been reached. Harper testified that there was an oral arrangement under which each respondent would contribute thirty percent of the fees collected on work generated by that attorney into the office's operating account in order to pay expenses, and that the producer would keep the balance of the fee generated by him. The matter was to be revisited if that initial level of contribution to expenses became insufficient. Kemp, on the other hand, testified that no agreement had been reached and, indeed, that he was annoyed over Harper's having "had his name first on the door." Further, Kemp wanted a written agreement which provided that he would receive some percentage of the fees on cases that Harper brought in. Kemp tacitly acknowledges that the Greenstein files, as between the two respondents, were cases generated by Harper.⁴

Harper established escrow and operating accounts on which both he and Kemp were authorized signators. The checks for those accounts are respectively imprinted "Harper & Kemp, Attorneys at Law—Escrow Account" and "Harper & Kemp, Attorneys at Law—Operating Account" with the St. Paul Street address and the telephone number of that office. Harper signed a one-year lease for the office that expired in May 1996; thereafter, the tenancy was month to month. There was also legal stationery headed "Harper & Kemp." Behind Harper's name a symbol referred the reader to the statement, "Member of D.C., and Maryland Federal Bars." Behind Kemp's name a different symbol referred the reader to the statement, "Member of Maryland State and Federal Bars."

Harper & Kemp, through Harper, hired Mitchell. Harper told an investigator for Bar Counsel that this had been done on the recommendation of Deborah Kolodner.⁵ Mitchell's principal duties were to put in order and make current the Greenstein files, a responsibility that required him frequently to travel to the post office in Columbia.

In its physical layout the Harper & Kemp suite was a former physician's office, with a waiting room, glass-enclosed receptionist area, a small office used by Mitchell and at times by Kemp, and a large office used by Harper. According to Harper, for the first nine months of operation the respondents alternated in covering the office. Thereafter, Kemp stopped coming to the office on this schedule, although he still retained keys to it and, when the locks were changed, he received keys which gave him access through the front door and to the small office. After Kemp stopped coming to the office, he did not change his address from 1010 St. Paul Street. Individual pieces of mail of a quantity sufficient to fill two large manila envelopes and postmarked between June 1995 and January 1997 were addressed to Kemp at 1010 St. Paul Street but had not been seen by him prior to trial.

Between May 1995 and September 1996 Harper drew fifty-five checks, totaling $110,353.93, on the escrow account that were payable to clients as distributions of settlement proceeds. He also drew checks on the escrow account totaling $82,241.97 of which six were payable to cash and the others payable to Harper personally or to Harper & Kemp. The total of deposits to the operating account is not in the record. Kemp never contributed to expenses, and he made no deposits to or withdrawals from the operating account.

Harper signed the retainer agreements between Harper & Kemp and the personal injury clients. When Harper was interviewed by Bar Counsel's investigator at the St. Paul Street office, Harper said that the files that were piled around the office were his and not Kemp's. Kemp testified that he had seen the files piled up in Harper's office but that he did not work on any of the cases. Without objection from Harper, Bar Counsel's investigator testified that Kemp told him in April 1997 that Kemp "had nothing to do with the files up in Baltimore" and that Harper "had been the person who had dealt with all of the clients up there." In the late spring or early summer of 1996 Kemp arranged to share office space with another attorney. Prior to putting those arrangements into effect Kemp said that he had spent a good deal of time in Georgia while his mother was dying of cancer.

Mitchell worked at Harper & Kemp for a little less than one year, from June or July of 1995 to May of 1996. During that time he said that he worked daily with Harper, but saw little of Kemp who had a practice elsewhere and who occasionally came into the office in the evening and left notes for Mitchell concerning Kemp's cases.

Harper testified that he closed the Baltimore office sometime in 1997.

II

The petition for disciplinary action against the respondents resulted from complaints to Bar Counsel by certain Harper & Kemp clients. In addition to charging a violation of Rule 5.5 by Harper, the petition also charges that Harper violated Maryland Code (1989, 1995 Repl.Vol.), § 10-601 of the Business Occupations and Professions Article (BOP). That statute in relevant part provides:

"(a) In general.—Except as otherwise provided by law, a person may not practice, attempt to practice, or offer to practice law in the State unless admitted to the Bar.

....

"(c) No defense to act through lawyer.—It is not a defense to a charge of a violation of this section that the defendant acted through [a] ... partner ... who is a lawyer."

BOP § 10-606(a)(3) makes violation of § 10-601 a misdemeanor. These two statutes form the basis for additionally charging Harper with violating Rule 8.4(b) and (d). Respectively these sections provide that it is professional misconduct for a lawyer to "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects" and to "engage in conduct that is prejudicial to the administration of justice."

With respect to Kemp, the general arrangement between the respondents is the basis for charging Kemp with a violation of Rule 5.3, in addition to the charge under Rule 5.5(b) (assisting in the unauthorized practice of law). Rule 5.3 in general deals with "Responsibilities regarding nonlawyer assistants," and is set forth in full in the margin.⁶

Bar Counsel's legal theory of the unauthorized practice...