Attorney Grievance Commission v. McBurney, 6
| Decision Date | 09 March 1978 |
| Docket Number | No. 6,6 |
| Citation | 282 Md. 116,383 A.2d 58 |
| Parties | ATTORNEY GRIEVANCE COMMISSION of Maryland v. John J. McBURNEY. Misc. (Subtitle BV) |
| Court | Maryland Court of Appeals |
James E. Kenkel, College Park, for respondent.
John Addison Howard, Deputy Bar Counsel, Annapolis, for petitioner.
Argued before MURPHY, C. J. and SMITH, DIGGES, LEVINE, ELDRIDGE, ORTH and COLE, JJ.
In this disciplinary action we conclude that the three-judge panel erred in excluding from their consideration a charge that the attorney violated certain disciplinary rules. Thus, we shall remand the case to the panel in order that they may make a determination as to whether he did or did not violate those rules.
John J. McBurney (McBurney) was admitted to the Bar of this Court on June 27, 1961. He was admitted to practice in the District of Columbia in 1953. Bar Counsel filed a petition with us on behalf of the Attorney Grievance Commission alleging that McBurney violated those portions of Disciplinary Rules 1-102, 5-104, and 9-102 which we set forth below:
"DR 1-102 Misconduct.
(1) . . .
(A) All funds of clients paid to a lawyer or law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:
(1) Funds reasonably sufficient to pay bank charges may be deposited therein.
(2) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.
(1) . . .
(4) Promptly pay or deliver to the client as requested by a client the funds . . . in the possession of the lawyer which the client is entitled to receive."
Exceptions to the three-judge panel's recommendation have been noted by McBurney and also by Bar Counsel on behalf of the Attorney Grievance Commission. McBurney objected, among other things, to the suggested sanction of disbarment. We find it necessary to address only the exceptions entered by Bar Counsel.
We shall relate only such facts as may be relevant in discussion of the procedural point which we shall address. It will be sufficient to say that McBurney deposited funds of his client in his personal checking account, that because of insufficient funds two checks to the client were not honored upon presentation to the bank upon which they were drawn, and that the client was finally paid by McBurney about six months after the funds were received.
McBurney interposed an objection before the three-judge panel to consideration of whether his conduct violated DR 1-102, DR 5-104, and DR 9-102(B). He claimed the charges under these three rules were not before the Inquiry Panel (composed of lawyers) which had earlier considered the matter pursuant to Maryland Rule BV6. In his answer to the petition for disciplinary action, McBurney said:
"(T)he Review Board acted on the report and recommendation of the Inquiry Panel convened in this case . . . which Panel concluded a single allegation of a violation of DR 9-102 and an accompanying conclusion that the Respondent did not breach DR 6-101 of the Canons of Ethics."
DR 6-101 concerns competence of counsel. Counsel for McBurney pointed out to the three-judge panel that the Inquiry Panel had "completely dismissed (this) allegation, and found as a matter of fact, which cannot be reviewed further, that (McBurney) handled his client's personal injury suit in a competent manner up until settlement, and only sent forward the single charge (of) commingling of his client's funds with his own funds." The three-judge panel said it had "some reservations about whether or not 9-102(B) was . . . among those charges referred to the (Inquiry) Panel, because it seem(ed) to (them) that (it was) an essential basic fact in this case, which grows out of and arises out of the charges embodied in 9-102(A) . . . ." Nevertheless, it sustained the objection and considered only the charge of violation of DR 9-102(A).
Bar Counsel claims that the three-judge panel erred in its holding that they might not permissibly consider whether the acts of McBurney constituted a violation of disciplinary rules not presented to the Inquiry Panel.
Subtitle BV of the Maryland Rules pertaining to "Discipline and Inactive Status of Attorneys" is relatively new, since it was almost completely rewritten in 1975. Because the rules are new, the procedures to be followed are not as deeply ingrained in bench and bar as the rules of common law pleading such as that the proper general issue plea to an action in assumpsit is "never was indebted as alleged" or "never promised as alleged." Cases such as Attorney Griev. Comm'n v. Andresen, 279 Md. 250, 367 A.2d 1251 (1977), probably would not have been before us in the posture in which we were obliged to consider them had there been a longer period of experience with these rules.
In early 1973 David E. Betts, Esq., as President of Maryland State Bar Association, appointed a special committee of distinguished members of the Maryland Bar under the chairmanship of Wilbur D. Preston, Esq., to consider uniform grievance procedures. The report of the committee was submitted under date of April 22, 1974, and approved by the State Bar Association at its meeting on June 13, 1974. This report was embodied with but little change in the Forty-seventh Report of our Standing Committee on Rules of Practice and Procedure dated December 12, 1974. We adopted the new rules on March 10, 1975.
Rule BV6 a provides that "(e)very complaint that an attorney has committed an act of misconduct . . . shall be filed with and recorded by the Bar Counsel." He is to investigate each complaint. Unless a complaint is found to be without merit, he is obliged to "refer the complaint to an Inquiry Panel and give notice of the complaint to the attorney against whom the complaint has been made" calculated to "inform the attorney of the nature of the complaint made." Rule BV6 c 4(a) provides for hearing by the Inquiry Panel. This panel of attorneys is to recommend either that the complaint be dismissed, that the attorney be reprimanded, or that charges be filed against the attorney. If a reprimand or charges are recommended, then Rule BV6 c 4(b) requires the Inquiry Panel to "state the basis therefor in writing" and to "file with the Bar Counsel its recommendations, the reasons therefor and any evidence taken in the proceedings." Bar Counsel is then to "transmit to the Review Board and to the attorney, copies of the recommendations, reports and, wherever practical, copies of any evidence."
Procedure before the Review Board is set forth in Rule BV7 b which provides:
Under Rule BV9 any charges against an attorney are to be filed with us "by the Bar Counsel acting at the direction of the Review Board" and are "filed on behalf of the (Attorney Grievance) Commission . . . ." We "by order may direct that the charges be transmitted to and heard in any court and shall designate the judges to hear the charges and the clerk responsible for maintaining the record in the proceeding." Rule BV9 c provides:
"The charges shall be in writing and shall be sufficiently clear and specific reasonably to inform the attorney proceeded against of any misconduct charged and of the basis of any allegation that he is incompetent."
Rule BV9 e sets forth provisions with reference to pleadings. The next step in the grievance process is a hearing on the charges, which is covered by Rule BV10. The three-judge panel which hears the evidence under that rule is required by Rule BV11 a to make its recommendations to us. Then Rule BV11 b provides for the proceedings before us.
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Jones v. State, 130
...an act of misconduct are similar in purpose to the accusatory proceedings conducted by a grand jury. See Attorney Griev. Comm'n v. McBurney, 282 Md. 116, 383 A.2d 58 (1978). It is true, of course, that in a proper case an accused may, at trial, be afforded access to grand jury minutes for p......
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State v. Caenen
...plead specific rules, since it is the factual allegations against which the attorney must defend. Attorney Griev. Comm'n v. McBurney, 282 Md. 116, 123-24, 383 A.2d 58 (1978). However, if specific rules are pled, the state is thereafter limited to such specific offenses. McBurney, 282 Md. at......
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Berg, Matter of
...of specific rules are charged, the State is thereafter limited to such specific offenses, citing Attorney Griev. Comm'n v. McBurney, 282 Md. 116, 123-24, 383 A.2d 58 (1978). A complete reading of Caenen does not indicate our intent to embrace such a specific rule, as reflected in a further ......
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Attorney Grievance Com'n of Maryland v. Powell
...decision as to whether an attorney has or has not been guilty of misconduct is to be made by us...." Attorney Grievance Comm'n v. McBurney, 282 Md. 116, 122, 383 A.2d 58, 61-62 (1978). In addition, Md.Rule BV10(d) requires Bar Counsel to prove by clear and convincing evidence the factual de......