Attorney Grievance Commission of Maryland v. Kerpelman

• Decision Date: 05 September 1980
• Citation: 288 Md. 341,420 A.2d 940
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Leonard Jules KERPELMAN. Misc. (BV) 1.
• Court: Maryland Court of Appeals

Page 341

288 Md. 341

420 A.2d 940

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Leonard Jules KERPELMAN.

Misc. (BV) 1.

Court of Appeals of Maryland.

Sept. 5, 1980.

J. Martin McDonough, Jr., Sp. Asst. Bar Counsel, Baltimore, for Attorney Grievance Commission

Leonard J. Kerpelman, Baltimore, pro se.

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

SMITH, Judge.

Pursuant to Maryland Rule BV9, the Attorney Grievance Commission acting through Bar Counsel filed a petition with us praying that disciplinary action be taken against Leonard Jules Kerpelman, a member of the Bar of this State. The complaint grew out of his representation of three individuals. Those relative to one individual ultimately were dropped. The disciplinary rules involved in the two remaining complaints were DR 1-102(A)(1), (4), (5), and (6); 2-106(A); 2-110(A)(2) and (B)(4); 6-101(A)(2) and (3); 7-102(A)(7); and 7-106(A). Pursuant to Rule BV9 b we designated the Honorable Marshall A. Levin, an associate judge of the Eighth Judicial Circuit of Maryland, to hear the charges. After extensive and protracted hearings, he submitted a comprehensive report to us in which he found clear and convincing evidence of violation of DR 1-102(A)(1), (4), (5), and (6); DR 7-102(A)(7); and DR 7-106(A). ¹ We agree.

We shall set forth the charges against Kerpelman together with the gist of the trial judge's findings on those charges. We shall then consider the exceptions of Bar Counsel and each of Kerpelman's forty-four exceptions. Then we shall discuss the applicable law and the appropriate sanction to be imposed. In an effort to provide a clear understanding of this matter, we set forth in an appendix that portion of the trial judge's opinion which concerns the facts adduced before him.

I The Malcomb matter

Bar Counsel alleged that in December 1975 John D. Malcomb sought the professional assistance of Kerpelman in regaining the custody of one of Malcomb's two children (Malcomb's other child then being in his custody); that Malcomb was advised that it would cost him $1,000 plus court costs for Kerpelman to represent him; that on or about December 17, 1975, Malcomb paid Kerpelman $500; that a second $500 was paid before the scheduled hearing on June 8, 1976; that between December 1975 and June 1976 Malcomb advised Kerpelman by letter of the names of witnesses he believed could materially contribute to the case and should be interviewed; that during this period he notified Kerpelman of the facts of the case; that during this same period Kerpelman granted Malcomb only one forty to forty-five minute interview during which time Kerpelman "indicated a lack of familiarity with the facts and issues of the action"; that Kerpelman recommended to Malcomb the hiring of a private social worker to do an investigation of Malcomb for use at the custody hearing at a cost of $350, but It was claimed, based on these allegations, that Kerpelman had violated DR 1-102(A)(1), (4), (5), and (6); DR 2-106(A); DR 2-110(A)(2) and (B)(4); and DR 6-101(A)(2) and (3). ² The charges concerning neglect and excessive fees ultimately were dropped.

"at the time of trial, after her qualifications were presented to the Court, her report and its conclusions were ruled inadmissible by the Court"; that prior to the date of trial Kerpelman interviewed only one of the witnesses concerning whom Malcomb had previously advised him; that by his interrogation of witnesses at trial Kerpelman "indicated a lack of familiarity with the facts and issues of the action"; that at the conclusion of the custody hearing on June 8, 1976, the chancellor reserved his ruling; that on or about June 23, 1976, Kerpelman "sent a bill to Malcomb for a 'Further retainer' in the amount of $650"; that upon receipt of that bill Malcomb paid Kerpelman $50; that when subsequent to the hearing Malcomb was unsuccessful in making contact with Kerpelman he "contacted his former wife and her attorney, during the week of July 20, 1976, and learned that the Court had reached a decision based upon the hearing of June 8, 1976, which decision Malcomb found acceptable to him, in that one child was awarded to Malcomb, and the other to Malcomb's former wife, with the requirement that Malcomb pay $25 per week in support for the child awarded to his former wife"; that on or about July 27 Malcomb "encountered (Kerpelman) at a meeting of a group called Fathers United, at which time (Kerpelman) indicated to Malcomb that the Court had not yet reached a final determination on the custody issue, and that (Kerpelman) was still working on the matter on Malcomb's behalf"; that on or about July 28, 1976, Malcomb ascertained from the chancellor that he had in fact rendered a decision on the custody issue on July 20, 1976; that Malcomb telephoned Kerpelman on about July 28, 1976, to tell him of the information he had acquired from the trial judge at which time Kerpelman "again told Malcomb that the matter had not been settled;" that on or about July 29, 1976, "Malcomb notified (Kerpelman) by letter that he was terminating their relationship, after which (Kerpelman) continued to correspond with Malcomb, and with the Court on Malcomb's behalf"; that on or about August 26, 1976, Kerpelman "submitted another bill to Malcomb for an additional $1,250, reflecting[420 A.2d 943] an 'Additional final fee based on successful result,' resulting in a total additional claim of $1,850"; that on or about October 4, 1976, Kerpelman sued Malcomb claiming $1,850 "for services rendered by (Kerpelman)"; that on or about October 29, 1976, Kerpelman "submitted a third additional bill to Malcomb for an additional $1,000 for 'Re-analyzation of file, further additional fee based on time expended,' resulting in a total additional claim of $2,250"; that on or about February 11, 1977, Kerpelman amended his claim for damages in his suit against Malcomb "to $4,262, reflecting a total claim of $5,312, less the $1,050 previously paid by Malcomb"; and on or about March 21, 1977, Kerpelman "submitted a fourth additional bill for $4,262 as a 'Corrected bill based on final analysis done in January, 1977.' "

At the conclusion of the hearings the trial judge framed the following as the issues to be determined by him:

1. Did Respondent violate any Disciplinary Rules by making an agreement with Malcomb that his representation of Malcomb would cost $1,000.00 and yet intended, at the time of the agreement, to charge an additional fee based on certain factors, including a successful result?

2. Did he further violate any Disciplinary Rule by allegedly misrepresenting to Malcomb that his case was not yet resolved in the judge's mind until the August 9, 1976 decree was signed and that he was working on the case, when in fact, the judge's ruling was on July 20, 1976 (and the only matter remaining was the drafting and approval of the Order) and Respondent was not working on the case at all but rather trying to give the appearance of work in order to exact an improper fee from Malcomb?

3. Did Respondent violate any Disciplinary Rule by furthering a fraud on the court in not advising the court that the Malcomb decree was based on a fraudulent decree, i. e., a backdated separation agreement?

4. Did Respondent violate DR 1-102(A)(5) by his alleged conduct in paragraph 1, 2 and 3 above?

5. Did Respondent violate DR 1-102(A)(6) by maliciously escalating his fee to Malcomb and attempting to obtain improperly an improper fee from Malcomb in the absence of any fee agreement by Malcomb and in the absence of any basis therefor and by using the courts to obtain such improper fee?

6. Did Respondent violate said latter Disciplinary Rule by his alleged conduct in 2 above?

7. Did Respondent violate DR 2-110(A)(2) by improperly withholding Malcomb's papers and the decree after being discharged by Malcomb?

8. Did Respondent violate DR 6-101(A)(2) by lack of adequate preparation in that he conducted no discovery, interviewed no witnesses before trial, called witnesses who were of little or no probative value, failed to call witnesses who were of probative value and generally displayed no knowledge of the facts surrounding the Malcomb case?

In his consideration of the matter the trial judge lumped together the issues concerning escalation of the fee. He found "by clear and convincing evidence that (Kerpelman) represented to Malcomb that his total fee for his representation in the custody case would be One Thousand Dollars ... and no more but that in violation of his agreement, he charged (or attempted to charge) Malcomb fees over the agreed upon amount; that (Kerpelman) made a wilful misrepresentation to Malcomb as to (Kerpelman's) fee; that (Kerpelman) maliciously and improperly escalated fee charges to Malcomb without any basis, without any agreement, without any warning; and without the escalated charges bearing any relationship to the amount of work done." On the basis of that finding he concluded that Kerpelman violated DR 1-102(A)(4) concerning engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; DR 1-102(A)(5) concerning engaging in conduct prejudicial to the administration of justice; DR 1-102(A)(6) concerning engaging in other conduct adversely reflecting on his fitness to practice law; and DR 1-102(A)(1) stating that a lawyer shall not violate a disciplinary rule.

On Issue 2 relative to misrepresentation as to whether or not a case had been "resolved in the judge's mind" the trial judge "conclude(d) by clear and convincing evidence that (Kerpelman) deliberately misrepresented to Malcomb that there remained work to be done on this . . . case and that . . . (Kerpelman) was actually engaged in performing such work, whereas, after July 20, 1976, there remained no work to be done and (Kerpelman), in fact, performed no work and that The trial judge said he was "not convinced by clear and convincing evidence that (Kerpelman)...