Attorney Grievance Commission v. Howard, 8

• Decision Date: 10 May 1978
• Docket Number: No. 8,8
• Citation: 282 Md. 515,385 A.2d 1191
• Parties: ATTORNEY GRIEVANCE COMMISSION of Maryland v. Charles P. HOWARD, Jr. Misc. (BV)
• Court: Maryland Court of Appeals

Page 515

282 Md. 515

385 A.2d 1191

ATTORNEY GRIEVANCE COMMISSION of Maryland v. Charles P. HOWARD, Jr.

Misc. (BV) No. 8.

Court of Appeals of Maryland.

May 10, 1978.

[385 A.2d 1192] L. Hollingsworth Pittman, Bar Counsel, Annapolis, for petitioner.

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

Argued before MURPHY, C. J., and SMITH, DIGGES, LEVINE, ELDRIGE, ORTH and COLE, JJ.

PER CURIAM:

The three-judge panel assigned to hear this attorney disciplinary matter pursuant to Maryland Rule BV9 recommended, for reasons stated in its "Findings of Fact . . . Conclusions and Recommendations," that Charles P. Howard, Jr., be reprimanded for his professional misconduct. After careful review of the record, we adopt the views of the panel and hereto append its opinion. Accordingly, we reject the exceptions filed by the Attorney Grievance Commission.

Charles P. Howard, Jr., is, therefore, pursuant to Maryland Rule BV11 reprimanded. In addition, he is directed to pay to the Attorney Grievance Commission the amount of $93.00 representing the Commission's transcription costs in connection with this matter.

IT IS SO ORDERED.

APPENDIX

IN THE CIRCUIT COURT FOR HARFORD COUNTY

Misc. Docket 4

FINDING OF FACTS

The Attorney Grievance Commission of Maryland through Bar Counsel filed a petition for disciplinary action on August 16, 1977 against Charles P. Howard, Jr. Pursuant to an order dated August 30, 1977 a three-judge panel consisting of Judges Albert P. Close (presiding), Edward D. Higinbothom, and Brodnax Cameron, Jr. was convened.

The petition charges Mr. Howard with violations of Disciplinary Rule 1-102 (misconduct), Disciplinary Rule 6-101 (failing to act competently), Disciplinary Rule 7-101 (failing to represent a client zealously), and Disciplinary Rule 7-106 (trial misconduct) of the Code of Professional Responsibility, Rule 1230, Appendix F, Maryland Rules of Procedure.

Four violations were alleged:

I. Matter of Bernice Adams. A trip-and-fall case arising out of an incident on March 23, 1962. Mr. Howard represented the plaintiff, Bernice Adams. The case was called for trial March 2, 1966, Mr. Howard did not appear, and ultimately on January 9, 1974, the proceedings were dismissed under Rule 530 II. Matter of Eric T. Campbell. This involved prosecution of an appeal of Campbell's armed robbery conviction. The appeal was dismissed on July 29, 1971 because of failure to file appellant's brief on or before the June 24, 1971 deadline.

III. Matter of contempts of Court. Mr. Howard was adjudged guilty of contempt on the following occasions:

a) before Judge David Ross, October 21, 1971;

b) before Judge George B. Rasin, Jr., December 1, 1972; and

c) before Judge Shirley B. Jones, November 6, 1972.

IV. Matter of Edward B. Pauls. This particular charge, involving alleged negligence in the handling of a motor tort claim, was dismissed by the Attorney Grievance Commission in open court.

Mr. Howard responded to the petition by filing, first, a "preliminary objection" and, later, an answer. The "preliminary objection" questioned the jurisdiction of the court to hear the pending matter on the grounds that Rule BV9, enacted in 1975, should not apply retroactively so as to give the court power to re-hear matters that were duly heard to a conclusion by those handling such things under the former rules. He said that all of these things had been before the Bar Association of Baltimore City in the past and that, anyway, under the present Rules he would have been entitled to a hearing before an inquiry panel before the review board could refer the case to Bar Counsel. In addition, he argued that if the protection of the public is the purpose behind disciplinary proceedings, this purpose has not been served in this case because the complaints are so stale (ten years since the filing of the first one; four years since hearings before the Grievance Committee of the Baltimore City Bar Association). Therefore, he said, he has been prejudicially singled out for discipline at a time when a valid reason no longer exists.

To this, the Attorney Grievance Commission responded that no inquiry panel had ever heard the case, that previously it had only been before the Bar Association of Baltimore City, that the Bar Association had not concluded the matter at the time the Attorney Grievance Commission came into existence and, that by treating the Bar Association proceedings as that of an inquiry panel which reported to the review board, the procedure was proper under the transitional provisions of the order of the Court of Appeals of February 10, 1975 and in keeping with established law. The Grievance Commission also denied that it had singled out Mr. Howard for discriminatory treatment and that the past actions of the Bar Association amounted to a decision in the matter.

The case came on for hearing on November 22, 1977 at which time the motion raising preliminary objection filed by Mr. Howard was denied for the reasons given in the answer of the Attorney Grievance Commission. Mr. Howard represented himself. Testimony was taken and numerous exhibits were received into evidence. The findings of fact which follow are grouped according to the respective matters alleged in the petition.

I. Matter of Bernice Adams. The allegations of the petition with respect to this matter, which are incorporated by reference herein, were proven. Mrs. Adams tripped and fell on March 23, 1962, on June 4, 1963 suit was filed, on March 2, 1966 the case was called for trial in open court but Mr. Howard failed to appear, and a judgment of non pros was entered in favor of the defendants.

On March 5, 1966 Mr. Howard filed a motion to set aside the judgment of non pros, the motion was denied on June 20, 1966, it was subsequently renewed on November 22, 1966 and again denied on October 18, 1967. It was finally dismissed under Rule 530 on January 9, 1974.

The client, Mrs. Bernice Adams, testified in substance in accordance with her statement of February 11, 1971 to Mr. Francis J. Walsh, Director of Investigative Services (Petitioner's Exhibit No. 1), that is, that she had received a settlement offer of $900.00, that Mr. Howard said it was too little, that suit was filed, that she heard little or nothing from Mr. Howard and that finally the case was dismissed.

Mr. Howard, in mitigation, put into evidence a rather extensive file and log showing considerable activity by him in the matter, including many letters and notes to Mrs. Adams imploring her to get in touch with him. As to his failure to appear in court on March 2, 1966, he could only say that he never got the postcard notice, that he had checked with the assignment bureau the day before, and that he could have been reached at home where he was languishing with a bad cold on the appointed day for trial. He promptly moved on March 5th for the non pros (referred to by him as "dismissal") be set aside but his motion was denied on June 20, 1966 by Judge Cullen. He tried again on November 22, 1966 but Judge Sklar denied the motion almost a year later and case ultimately was disposed of on January 9, 1974 under Rule 530.

The docket entries reflect considerable activity on the case and tend, in this respect, to corroborate Mr. Howard's log.

It is not, therefore, a case of blatant lethargy on Mr. Howard's part. His greatest dereliction was his failure to show up for the March 2, 1966 trial. He explains this by saying that he never received a notice and that he had discharged his duty to keep abreast of the assignment docket by making inquiries the previous day. It is not clear whether he specifically inquired about the Adams case, or whether he could reasonably expect to be informed of the Adams trial date in connection with other inquiries. Whatever the case, he promptly sought to remedy the situation by filing his motion on March 5 to set aside the order of dismissal. Because Judge Cullen, and later Judge Sklar, refused to grant his motion, we must conclude that Mr. Howard's explanation and excuses were not valid, at least for the purposes of ruling on the case then before the Court. Whitcomb v. Horman, 244 Md. 431, 443, 224 A.2d 120 (1966).

II. Matter of Eric T. Campbell. Again, the allegations of the petition, incorporated by reference herein, were proven both by documentary evidence and by the testimony of Mr. Campbell. Mr. Campbell had been convicted of armed robbery. He was sentenced on June 22, 1970 to serve twenty years. Mr. Howard was engaged to prosecute his appeal but failed to file his brief on time, resulting in the appeal's being dismissed on July 29, 1971.

Mr. Howard's version in that he did not represent Mr. Campbell at trial but was prevailed upon by Mr. Campbell's mother (who testified to this effect) to prosecute the appeal. He received payments from Mr. Campbell's mother totaling $924.00 of which approximately three-fourths went to the costs of transcript and printing. The matter of the transcript presented difficulties. The court reporter for one of the three trial days had resigned from service before the Supreme Bench and refused to type the transcript. He was even brought before the Court in contempt proceedings for his refusal to do so and another reporter eventually had to type the testimony. Numerous extensions for the filing of the transcript were granted throughout late 1970 and 1971. The record, including the transcript, was finally received by the Court of Special Appeals on April 30, 1971. On July 29, 1971 the Court of Special Appeals on its own motion dismissed the appeal pursuant to Rule 1035.a.2. On August 18, Mr. Howard filed a motion to rescind the order dismissing appeal, conceding that the brief was due June 24, 1971 but saying that he felt there was not hurry because a letter from the Clerk of the Court of Special Appeals told him that the appeal would be heard in September. The motion to rescind went on to state "that the brief is now prepared and can be...