Attorney Grievance Com'n of Maryland v. Weiss
| Decision Date | 01 September 1983 |
| Docket Number | No. 31,31 |
| Citation | 300 Md. 306,477 A.2d 1190 |
| Parties | ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Edward S. WEISS. Misc. Docket (BV), |
| Court | Maryland Court of Appeals |
Melvin Hirshman, and Glenn M. Grossman, Bar Counsel and Asst. Bar Counsel for Atty. Grievance Com'n, Annapolis, for petitioner.
Edward S. Weiss, Silver Spring, for respondent.
Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ.
The Attorney Grievance Commission, by Bar Counsel, filed a petition for disciplinary action against Edward S.
Weiss, who was admitted to the Bar of Maryland in 1973 and maintains a law office in Silver Spring, Maryland. Bar Counsel alleged that on two specific occasions Mr. Weiss had approached persons suggesting that they retain him for the purpose of legal representation. Bar Counsel also alleged that [477 A.2d 1191] Weiss had engaged in "a pattern of solicitation of prospective clients" and on one occasion had stated that "he would get the case against [the prospective client] 'nol prossed.' " Pursuant to Maryland Rule BV9, we transmitted the matter to the Circuit Court for Montgomery County to be heard by the Honorable John J. Mitchell. After conducting a hearing on the charges, Judge Mitchell filed the following findings of fact and conclusions of law
A hearing was conducted on January 27, 1984. It was stipulated that the entire record of the proceedings before the Inquiry Panel would be received in evidence. Charles Esser testified that Weiss approached him in the District Court in Hyattsville, Maryland, and Esser was told that the presiding judge (Honorable Bond Holford) was tough in sentencing on certain motor vehicle violations. Esser was charged with driving on a revoked or suspended license. Esser said he couldn't afford to retain Weiss. Esser also testified that his wife was pregnant and terrified. He was upset also. Judge Holford testified, via the transcript of the earlier proceedings, that he had occasion in the summer months of 1982 to discuss with respondent, in chambers, the appearance that respondent was soliciting clients in the District Court, and he told Weiss that it must stop. The conference ended amicably. The Judge further testified that on or about November 4, 1982, there was another chambers conference with respondent about respondent approaching one Braxton on that morning. Esser said that Weiss had offered to represent him for $150.00, offering to accept a $50.00 down payment and have the balance paid at a later time.
Weiss testified that when he spoke to Esser, it was to ask him if the Landlord and Tenant docket had concluded. He denied soliciting Esser or offering to represent him for the stated fee.
Victor L. Crawford, a member of the Bar for some twenty years testified that he had received complaints from members of the Sheriff's department that Weiss was soliciting clients in the District Court of Maryland located at Shady Grove Road in Rockville, Montgomery County, Maryland. These complaints were made to him when he was a State Senator and Chairman of the Committee on Judge's Budget. Mr. Crawford determined to find out what was going on when he was next in court. He stated that on two occasions in either October or November 1982, he had seen Weiss sitting in the back row of the courtroom. When a person went before the presiding judge, he would be told either to retain a lawyer or would be referred to the Public Defender. On one occasion, Mr. Crawford said that he saw Weiss follow a person out into the corridor who had been referred to the Public Defender. He saw Weiss take the person's arm and present the person a business card and engage the person in a conversation. Crawford saw this happen on another date when a person was told, by the presiding judge, to retain an attorney because of the serious nature of the offense. The person was again approached by Weiss and presented a business card. Mr. Crawford was unable to hear any of the conversation.
Deputy Sheriff Stanley Snouffer testified that he knew Mr. Weiss and had seen him on many occasions during the years 1982 and 1983 openly soliciting clients in the District Court in Rockville, Maryland. In defense, the respondent, Weiss, testified that he was frequently called by prospective clients at the last minute and would be unable to meet them at the office before trial. He would tell them to go to court and to get a continuance so as to obtain an attorney. Since neither client nor lawyer knew the other by appearance, Weiss said that he would sit in the back of the courtroom and when the client's name was called, Weiss would follow the client out of the courtroom, introduce himself and the retainer would be discussed. He denied soliciting clients, but at one juncture Finally, Charles W. Bowen testified that he had been in the District Court in Rockville, Maryland in late July, 1982. He was advised that he should retain an attorney because of the serious nature of the charge. He testified that he was approaching his seventy-fifth birthday. He also said that on the July date, he was having difficulty with a leg and walked slowly. He and his wife were leaving the court and they were approached by Weiss. Weiss told Bowen that the charge against him sounded ridiculous. Weiss further told Bowen that he was an attorney and that he could handle the case for him for $250.00 whereas another attorney would probably charge $500.00. Mrs. Bowen stated that she had a friend who had a lawyer and that she could call the friend. Bowen refused his wife's suggestion. One of the reasons was that Weiss was charging a lower fee. Weiss also told Bowen that the case could be nol prossed. Bowen retained Weiss and paid him. Eventually, the Bowen case came before the court. The case was not nol prossed. The presiding judge found Bowen guilty. However, in disposition the judge entered a finding of Probation Before Judgment pursuant to Article 27, Section 641. Bowen testified that he was pleased with the way in which he had been represented by Weiss and would retain him again if he needed an attorney.
made an observation that advertising is permitted and this form of an approach to a prospective client is no more than advertising.
The respondent testified that he had only walked by the man and asked him how he was feeling. Mr. Weiss had noted that Bowen was limping and he was only inquiring about his health. He denied telling Bowen that the case could be nol prossed. He denied soliciting Mr. Bowen.
Based upon the foregoing, the Court is satisfied that Edward S. Weiss has, by his conduct, violated the following Disciplinary Rules.
First, Disciplinary Rule 1-102 Misconduct.
or misrepresentations.
(6) Engage in any other conduct that
adversely reflects on his fitness
to practice law.
Disciplinary Rule 2-103
Recommendation of Professional Employment.
Suggestion of Need of Legal Services.
(A) A lawyer who has given unsolicited advice to [a] layman that he should obtain counsel or take legal action shall not accept employment resulting from that advice, except (the exceptions are not applicable.) ....
Code of Professional Responsibility, Rule 1230, Appendix F, Annotated Code of Maryland.
Weiss filed exceptions to the findings of the court. In general, he complains that the lower court did not specify how the stated disciplinary rules were violated. However, the circumstances upon which each violation was premised seem sufficiently clear to us.
For instance, a violation of Disciplinary Rule (DR) 1-102(A)(1), (4) and (6) would only have occurred if Weiss had guaranteed that the case against Bowen would be nol prossed. The trial court reached no such conclusion, finding rather that Weiss "told Bowen that the case could be nol prossed." [Emphasis supplied.] In fact, Bowen acknowledged at trial that he understood the term nol prosse and knew that the prosecutor had to make this decision. Thus, the trial court's only finding on this point (as supported by Bowen's understanding that his lawyer could not directly control the disposition of the case) is that it was possible for the case to be nol prossed. However, no guarantees were made. Therefore, the trial court's conclusion that DR 1-102(A)(1), (4) and (6) was violated is inconsistent with and unsupported by its findings of fact.
The trial court also found a violation of DR 2-104(A), which precludes a lawyer from giving unsolicited advice to a layman that he should obtain counsel and then accepting employment resulting from that advice. However, we conclude that the trial court's findings of fact do not support the legal conclusion that this rule was violated. In neither of the two specific instances before the court did Weiss violate this rule. The trial court did not suggest that Bowen testified that Weiss told him he needed counsel. In fact, the judge before whom Bowen had appeared gave him this advice. As to Mr. Esser, it is clear that Weiss never served as his counsel. Finally, the testimony of Mr. Crawford and Deputy Sheriff Snouffer did not detail any instance in which this rule was violated. Crawford's testimony could support an inference that Weiss was soliciting clients, but not that he had violated DR 2-104(A). He stated that Weiss followed persons out of the courtroom after a judge suggested they needed an attorney, but he never heard what transpired. Similarly, the trial court noted that Snouffer had seen Weiss "soliciting" clients many times. However,...
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