Attorney Grievance Com'n of Maryland v. Howard

• Decision Date: 01 September 1983
• Docket Number: No. 4,4
• Citation: 299 Md. 731,475 A.2d 466
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Charles P. HOWARD, Jr. Misc. (Subtitle BV),
• Court: Maryland Court of Appeals

Page 731

299 Md. 731

475 A.2d 466

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Charles P. HOWARD, Jr.

Misc. (Subtitle BV) No. 4, Sept. Term, 1983.

Court of Appeals of Maryland.

June 1, 1984.

Charles P. Howard, Jr., Baltimore, respondent.

Glenn M. Grossman, Asst. Bar Counsel, Annapolis (Melvin Hirshman, Bar Counsel, Annapolis, on the petition), for petitioner.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ.

DAVIDSON, Judge.

The Attorney Grievance Commission (Commission) through Bar Counsel filed a petition for disciplinary action against the respondent, Charles P. Howard, Jr. (Howard), alleging violations of the Disciplinary Rules of the Code of Professional Responsibility. Pursuant to Maryland Rule BV 9 b, this Court referred the matter to Judge Marshall A.

                Levin of the Eighth Judicial [475 A.2d 467] Circuit.   On 13 September 1983, after an evidentiary hearing, the hearing judge filed a written memorandum of findings of facts and determinations, which is attached as an appendix to this opinion.   These findings and determinations may be summarized as follows
                

On 25 April 1978, Stanley L. Jefferson (Jefferson) was involved in an automobile accident. On or about 26 April 1978, Jefferson retained Howard to represent him on a contingency fee basis. On 18 January 1979, Howard filed a personal injury action against Jocelyn T. Mack and Milton Mack, Jr. (Mack case). On 15 February 1979, service was returned "non-est." Howard took no further action because of alleged difficulties with Jefferson. The Mack case was never settled.

The hearing judge concluded that, as a result of this conduct, Howard had violated the following Disciplinary Rules of the Code of Professional Responsibility: DR 6-101(A)(3); ¹ DR 7-101(A)(2) and (3). ²

On 26 May 1978, Jefferson was involved in another automobile accident. On or about 7 June 1978, Jefferson retained Howard to represent him on a contingency fee basis. On 12 January 1979, Howard filed a personal injury action against Beverly Jones and Jarrett Seymore Davis (Jones case) and service was obtained.

In the Jones case, Jefferson had incurred medical bills in the amount of approximately $537.70. Howard received Howard distributed one-third of the PIP benefits to Jefferson and retained the remaining two-thirds. Subsequently, Jefferson returned his one-third of the PIP benefits to Howard, who failed to keep any records of this transaction. Although Howard had assured Jefferson that he would pay Jefferson's medical bills, at the time of the hearing, those bills were not paid.

                Personal Injury Protection (PIP) benefits on behalf of Jefferson in the approximate amount of $537.70.   This money was not deposited in an identifiable bank account
                

The hearing judge concluded that, as a result of this conduct, Howard had violated Maryland Code (1957, 1981 Repl.Vol., 1983 Cum.Supp.), Art. 10, § 44, ³ and the following Disciplinary Rules of the Code of Professional Responsibility: DR 1-102(A)(3), (4), (5) and (6); ⁴ DR 7-101(A)(1); ⁵ dr 7- 102(a)(8); ⁶ dr 9-102(a); ⁷ dr 9-102(b)(3) and (4). ⁸ On several occasions, Jefferson attempted to terminate Howard's services in both the Mack and Jones cases. Although Jefferson indicated that he would reimburse Howard for expenses, Howard refused to withdraw unless and until he was paid a fee.

The hearing judge concluded that, as a result of this conduct, Howard had violated Disciplinary Rule 2-110(B)(4) ⁹ of the Code of Professional Responsibility.

On or about 29 June 1981, Howard suggested that Jefferson write a letter to the Commission indicating that he was satisfied with Howard's services and that he no longer wished to press charges. Howard represented to Jefferson that if he wanted to get the Mack case settled, "I [Jefferson] had to get the [Commission] off of his [Howard's] back." On 29 June 1981, Jefferson sent such a letter to the Commission because he believed it would be the only way that he could get the Mack case settled.

The hearing judge concluded that, as a result of this conduct, Howard had violated the following Disciplinary Rules of the Code of Professional Responsibility: DR 1-102(A)(4), (5) and (6); DR 6-102(A). ¹⁰

Howard excepted to all of the hearing judge's findings of facts and conclusions of law other than the finding in the Jones case that he failed to timely pay a medical bill. Howard recommended that the appropriate sanction be a reprimand. The Commission recommended the sanction of disbarment.

We have made an independent review of the record and have concluded that the hearing judge's findings of facts are supported by clear and convincing evidence. Attorney Grievance Comm'n v. Morris, 298 Md. 299, 308, 469 A.2d 853, 857 (1984); Attorney Grievance Comm'n v. Stancil, 296 Md. 325, 330-31, 463 A.2d 789, 791 (1983). Accordingly, we adopt those findings of fact. Additionally, we adopt the hearing judge's conclusions that Howard violated Md.Code, Art. 10, § 44; DR 1-102(A)(3), (4), (5) and (6); DR 2-110(B)(4); DR 6-101(A)(3); DR 6-102(A); DR 7-101(A)(1), (2) and (3); DR 7-102(A)(8); DR 9-102(A); and DR 9-102(B)(3) and (4).

The only remaining question is the appropriate sanction to be imposed. The severity of the sanction to be imposed for misconduct generally depends upon the facts and circumstances of the case. Stancil, 296 Md. at 331, 463 A.2d at 791; Attorney Grievance Comm'n v. Pollack, 289 Md. 603, 609, 425 A.2d 1352, 1355 (1981).

This Court has previously determined that, absent extenuating circumstances, misappropriation of funds entrusted to a lawyer's care ordinarily warrants disbarment. Attorney Grievance Comm'n v. Boehm, 293 Md. 476, 481, 446 A.2d 52, 54 (1982); Attorney Grievance Comm'n v. Pattison Here there was evidence to show that Howard had practiced law in Maryland for approximately 28 years, and that the disciplinary rules violations in this case arose from a difficult relationship with a single client. Nevertheless, Howard misappropriated a client's funds and, among other things, neglected a legal matter, commingled funds, failed to keep records, and engaged in conduct prejudicial to the administration of justice. No extenuating circumstances were presented.

                292 Md. 599, 609, 441 A.2d 328, [475 A.2d 469] 333 (1982);   Bar Ass'n of Baltimore City v. Marshall, 269 Md. 510, 520, 307 A.2d 677, 682 (1973).   Additionally, this Court has previously recognized that, in determining the degree of discipline to be imposed, it is proper not only to consider extenuating circumstances, but also an attorney's prior history of misconduct and any antecedent sanctions that may have been imposed.   Attorney Grievance Comm'n v. Stewart, 285 Md. 251, 261, 401 A.2d 1026, 1031,cert. denied, 444 U.S. 845, 100 S.Ct. 89, 62 L.Ed.2d 58 (1979);   Maryland State Bar Ass'n v. Phoebus, 276 Md. 353, 361, 347 A.2d 556, 560 (1975)
                

Moreover, this is not the first occasion upon which Howard has engaged in misconduct warranting the imposition of a sanction. As recently as 1978, in Attorney Grievance Comm'n v. Howard, 282 Md. 515, 385 A.2d 1191 (1978), ¹¹ this Court found that Howard had twice neglected legal matters and thereby violated DR 6-101(A)(3), initially by failing to be present for trial when a case was called, and Howard's present misconduct, coupled with his prior misconduct, warrants the sanction of disbarment. Accordingly, the name of respondent, Charles P. Howard, Jr., shall be stricken from the rolls of those authorized to practice law in this State.

                then by failing to file a brief in another case.   Additionally, this Court found that Howard had violated DR 7-106(C)(6) 12 of the Code of Professional Responsibility by failing, on three different occasions, to be present when a case was called.   Recognizing that, should there be further misconduct on Howard's part, the sanction imposed in that proceeding could form a more severe sanction in the future, this Court determined that the appropriate sanction to be imposed was a reprimand.   Howard, 282 Md. at 524, 385 A.2d at 1196
                

IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING THE COSTS OF TRANSCRIPTS, PURSUANT TO MARYLAND RULE BV 15 c, FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST CHARLES P. HOWARD, JR.

APPENDIX ^*

FINDINGS OF FACT AND DETERMINATIONS

I. THE CHARGES

On April 4, 1983, the Attorney Grievance Commission of Maryland (AGC) by its Bar Counsel (BC) petitioned the In particular, it averred that as concerns the First Case, the Respondent had filed suit against the Defendants ² on January 18, 1979 but took no substantive action on Jefferson's behalf thereafter, failed to perfect service, and, after Jefferson terminated Respondent's services as his counsel in December 1979, refused to withdraw from the case and refused to make his files (in the two cases) available absent payment of an exorbitant sum, i.e., $750.

                Court of Appeals[475 A.2d 470]  (by petition filed on April 8, 1983), to take appropriate disciplinary action against the Respondent.   It asserted that the Respondent had engaged in certain misconduct 1 with respect to his legal representation of his then client, one Stanley Jefferson (Jefferson), in connection with two automobile accidents, one which had occurred on April 26, 1978 (First Case) and the other on May 26, 1978 (Second case)
                

As to the Second Case, Bar Counsel averred that the Respondent filed suit ³ on January 12, 1979 on behalf of Jefferson, who had sustained personal injury which resulted in a hospital bill of $107.70 ⁴ and a doctor's bill in the amount of $430. ⁵ It asserted that the Respondent received Personal Injury Protection (PIP) benefits of $537.70 on behalf of Jefferson but that he misappropriated part or all of these funds to his own use. It claimed that the Respondent represented to Jefferson that one-third of the PIP would be used for payment of medical expenses, one-third would...