Attorney Grievance Com'n of Maryland v. Hopp, 18

• Decision Date: 01 September 1992
• Docket Number: No. 18,18
• Citation: 623 A.2d 193,330 Md. 177
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Kenneth Harvey HOPP. Misc. (Subtitle BV),
• Court: Maryland Court of Appeals

Page 177

330 Md. 177

623 A.2d 193

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Kenneth Harvey HOPP.

Misc. (Subtitle BV) No. 18, Sept. Term, 1992.

Court of Appeals of Maryland.

April 23, 1993.

Melvin Hirshman, Bar Counsel and Kendall R. Calhoun, Asst. Bar Counsel, Annapolis, for the Attorney Grievance Com'n of Maryland, petitioner.

No appearance on behalf of respondent.

Argued before ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI, and ROBERT M. BELL, JJ., and CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals (retired and specially assigned).

ROBERT M. BELL, Judge.

The Attorney Grievance Commission of Maryland, the petitioner, filed, on July 24, 1992, at the direction of the Review Board, see Maryland Rule BV7.b., a Petition for Disciplinary Action (the "Petition") against Kenneth Harvey Hopp, the respondent. The charges involved the respondent's handling, in 1979 and 1980, of two matters in California. ¹ Although he was admitted to the practice of law in Maryland on July 30, 1958, the respondent has not practiced in this State since 1962 and does not maintain an office here. The petition charged that the respondent misused client funds and failed to account for those funds when requested. ² We referred the case to the Honorable Warren B. Duckett, Jr., of the Circuit Court for Anne Arundel County, for hearing. See Maryland Rule BV9.b.

The respondent was served, on July 27, 1992, with the Petition for Disciplinary Action, Interrogatories, and Request for Admission of Facts and Genuineness of Documents. Rather than file responsive pleadings, the respondent, by motion filed August 12, 1992 in this Court, moved to dismiss for lack of jurisdiction. He also filed a Supplemental Memorandum in Support of Motion to Dismiss for Lack of Jurisdiction on September 4, 1992. We denied the motion to dismiss on September 14, 1992. The respondent did not thereafter file in the circuit court any answer to the petition or response to the interrogatories or to the request for admission of facts. Consequently, the petitioner filed a motion for order of default. See Maryland Rule 2-613. ³ By order dated October 14, 1992, Judge Duckett entered the order of default. As required by Rule 2-613(b), that order directed the clerk to "issue a notice informing the defendant that an order of default has been entered and that the defendant may move to vacate the order within 30 days after its entry." In addition, it provided "that leave be granted to the Petitioner, after the expiration of the thirty (30) days, to present such evidence as it deems necessary to allow the court to carry out its function under Maryland Rule BV11.a...." The respondent filed a Response To Motion for Order of Default and again moved to dismiss; however, while addressing the reason for his failure to plead, the motion to dismiss did not set forth "the legal and factual basis for a defense to the claim." See Rule 2-613(e). Instead, the motion reiterated the respondent's contention that this Court lacked jurisdiction to discipline him. ⁴

The hearing was held on January 5, 1992. The respondent did not appear and the petitioner did not call any witnesses. To prove its case, the petitioner offered the petition and the Request For Admission of Facts and Genuineness of Documents, the attachments to which were documents from civil cases filed against the respondent in California. ⁵ Having summarized the allegations of the petition by way of proffer as to what she would have proven had the respondent appeared at the hearing, and after noting that the respondent did not respond either to the petition or the request for admission of facts, bar counsel asked, pursuant to Maryland Rule 2-323(e) and 2-424(b), respectively, that the court deem the allegations of the petition and the admissions in the request for admission of facts to be admitted.

Based on those admissions, Judge Duckett concluded:

Respondent made unauthorized and ill-advised loans from trust funds in the Quirk matter and failed to properly account for those trust funds in violation of Disciplinary Rules 1-102(A)(1)(5)(6); 6-101(A)(1)(2)(3) and 9-102(A)(B).

In the Mamie Lyons matter the Respondent misused Estate funds to his own advantage. Respondent took property as security for the estate funds in his own name and failed to show that he was holding that property in trust. Finally, Respondent failed to account for the funds with which he was entrusted and caused a substantial loss to the Estate of Mamie Lyons. This conduct violated Disciplinary Rules 1-102(A)(1)(4)(5)(6); 6-101(A)(1)(2)(3); 7-101(A)(1)(2)(3) and 9-102(A)(B).

Neither the petitioner nor the respondent filed exceptions. The petitioner did file a recommendation that the respondent be disbarred, however. See Maryland Rule BV11.b.2. The respondent responded to that recommendation.

In his Response to Petitioner's Recommendation, the respondent repeated a theme, the foundation for which was laid soon after he was notified of the pendency of disciplinary proceedings in Maryland--that he is "not subject to the present proceedings. A disbarment will not change my present status." His motion to dismiss for lack of jurisdiction pointed out that, upon first being notified of an investigation by the petitioner, he submitted a letter of resignation from the Maryland Bar; that he is not now, and has not been since July 1962, a resident of, nor a practitioner of law in, Maryland; and that all of the allegations in the petition pertained to actions occurring in California and involving California, rather than Maryland, residents. Concluding that Maryland lacks jurisdiction to adjudicate disciplinary proceedings against him, the respondent observed: "[p]etitioner is in the peculiar position of keeping Respondent in the Maryland Bar solely for the privilege of throwing him out." He requested that the petition be dismissed or that the petitioner be required to file a supplemental petition setting forth the basis for its jurisdiction over him. This theme was repeated in the supplemental memorandum he filed and in his response to the petitioner's Motion For Order of Default.

A person who is not an attorney is not subject to discipline under the BV Rules. Attorney Grievance Commission v. Hyatt, 302 Md. 683, 688-89, 490 A.2d 1224, 1227 (1985). Rule BV1.a. defines "attorney" as

any person admitted by the Court of Appeals to practice law. For purposes of discipline or inactive status, the term also includes a member of the bar of any other state, district, or territory of the United States who engages in the practice of law in this State, or who holds himself or herself out as practicing law in this State, or who has the obligation of supervision or control over another attorney who engages in the practice of law in this State.

The respondent was admitted to the bar of this State, by this Court, in 1958. That he moved from Maryland and has not practiced law here since 1962, practicing only in California, to the bar of which he was also admitted, does not affect his bar status in this State. He did not tender his resignation either when he ceased practicing law here, or when he left the State. He only did so when notified that a disciplinary investigation was pending against him in this State. He contends that his tender of a letter of resignation at that time was sufficient to terminate his bar membership. On that point, the respondent is incorrect.

BV12.d.1. provides: d. Disbarment by Consent of Attorney Under Investigation.

1. Attorney may not resign. An attorney may not resign while he is the subject of investigation into, or pending proceedings involving allegations of his misconduct.

Although the respondent submitted a letter of resignation, it was not accepted, and, indeed, given the circumstances under which it was tendered, it could not have been. Consequently, the respondent has remained, at all times pertinent to these proceedings, a member of the bar of the State of Maryland and this Court has jurisdiction over him for purposes of disciplinary action under the BV Rules. ⁶

California initiated disciplinary proceedings, pertaining to the same matter alleged herein, against the respondent. There was no adjudication of those charges, however; as he was allowed to do pursuant to California Rule 960, ⁷ the respondent resigned from the California bar while those proceedings were pending. Thus, although Maryland has jurisdiction to sanction conduct committed by Maryland lawyers in another state which results in a final adjudication of misconduct or a criminal conviction, see BV10.e., the fact that there was not, in this case, a final adjudication of misconduct by a judicial tribunal does not deprive the Court of jurisdiction. Certainly, where, as here, disciplinary proceedings in another State were pending against the lawyer when he chose to resign, reinstatement to the bar of that State being dependent upon the resolution of the disciplinary proceedings precipitating the resignation, there is a sufficient predicate to permit any other court with jurisdiction over the lawyer to adjudicate the unresolved charges. Reciprocal discipline cases, see, e.g., Attorney Grievance Commission v. Sparrow, 314 Md. 421, 550 A.2d 1150 (1988), are not the only cases in which a court with concurrent jurisdiction for disciplinary purposes may proceed.

It is well settled that the purpose of disciplining a lawyer for professional misconduct is to protect the public and to preserve public confidence in the legal profession, rather than to punish the lawyer or to provide a basis upon which to impose liability. Attorney Grievance Commission v. Hamby, 322 Md. 606, 611, 589 A.2d 53, 56 (1991); Attorney Grievance Commission v. Kolodner, 316 Md. 203, 208, 557 A.2d 1332, 1334 (1989); In re: Special Investigation No. 231, 295 Md. 366, 374, 455 A.2d 442, 446 (1983). Imposing sanctions for misconduct protects the public by demonstrating to members of the...