Bar Ass'n of Baltimore City v. Marshall

• Decision Date: 26 July 1973
• Citation: 269 Md. 510,307 A.2d 677
• Parties: BAR ASSOCIATION OF BALTIMORE CITY v. M. Jack MARSHALL. Misc. (Subtitle BV) 1.
• Court: Maryland Court of Appeals

Page 510

269 Md. 510

307 A.2d 677

BAR ASSOCIATION OF BALTIMORE CITY v.M. Jack MARSHALL.

Misc. (Subtitle BV) 1.

Court of Appeals of Maryland.

July 26, 1973.

C. MacNair Speed, Baltimore, for petitioner.

Michael E. Loney, Glen Burnie, for respondent.

Argued before MURPHY, C. J., and BARNES, McWILLIAMS, SINGLEY, SMITH, DIGGES and LEVINE, JJ.

DIGGES, Judge.

This is a disciplinary proceeding which was originally instituted in this Court under the provisions of Subtitle BV of Chapter 1100 of the Maryland Rules of Procedure.The petitioner, the Bar Association of Baltimore City, here seeks to have this Court impose appropriate sanctions against the respondent, M. Jack Marshall, a practicing attorney in Baltimore City, principally for alleged violations of Canons 1 and 9 of the Code of Professional Responsibility.¹In addition, the petition alleged that in violation of Maryland Code(1957, 1964 Repl.Vol.), Art. 101, § 57the respondent impermissibly collected his fee for professional services rendered to a claimant in a workmen's compensation case prior to the approval of the fee by the Workmen's Compensation Commission.Following the filing of the Bar Association's petition, this Court, pursuant to Rule BV3 b, directed that the proceedings be transferred to the Supreme Bench of Baltimore City for a hearing.We designated Judges J. Gilbert Prendergast, J. Harold Grady and Paul A. Dorf as the panel to conduct the hearing (Rule BV4) and submit to this Court their recommendation as to a proper disposition of the charges.Rule BV5.This three judge panel, in faithfully discharging its assigned responsibilities, conducted a full hearing on December 26, 1972 and then transmitted to this Court a complete record of the proceedings.This record, which contains the recommendation of the hearing court as to a proper disposition of the charges, includes, as a part thereof, a summation of the factual findings which constitute the judges' reasons for their recommendation.These reasons are as follows:

'In 1965Robert P. Carter engaged the services of Mr. Marshall to represent him in a proceeding for compensation then pending before the Workmen's Compensation Commission of Maryland.The claimant had sustained an accidental injury while in the employ of Schluderberg-Kurdle Co., Inc., for which he was being paid compensation for his temporary total disability.A dispute arose as to the nature and extent of his permanent disability and as to whether he was entitled to compensation for a portion of such disability from the Subsequent Injury Fund.Following a hearing, a supplemental award of compensation was passed by the Commission on August 31, 1970 in which it determined that Mr. Carter was entitled to compensation for permanent partial disability in the aggregate amount of $6,875 and that he should receive an additional sum of $2,500 from the Subsequent Injury Fund.There was no appeal from that decision and it is not contended that Mr. Marshall did not represent his client with professional skill and competence in that matter.

Around the middle of September, 1970, (Marshall) and his client met and the latter was shown two checks payable to his order by his employer, one for $4,775, which he was then given, and the other for $2,344.The latter check was endorsed by its payee, Robert Carter, and then deposited by Mr. Marshall in the account of his firm.The parties agree that the amount of that check is almost precisely the fee which Mr. Marshall expected to recover ultimately, based on 20% of the compensation obtained.Whether defendant prevailed upon his client to endorse the check over as advance payment of the fee, in violation of Section 57 of Article 101 of the Maryland Code, is not certain, but the court finds that Mr. Marshall received funds belonging to his client at that time and proceeded to deposit them to his own account, contrary to the provisions of the Canon.The court does not believe Mr. Marshall's contention that his client made a loan of the $2,344 to him.

Thereafter, Mr. Marshall filed a petition addressed to the Workmen's Compensation Commission for a fee and the payment of certain medical expenses of three physicians.In applying for the fee, he requested the exact amount that he had already obtained from the client, $2,344.The Commission awarded him only $2,100, but he was later paid an additional $10 by the Subsequent Injury Fund-a total of $2,110 as fee.The check from the employer for the fee is dated December 23, 1970 and was received and deposited by Mr. Marshall early in January, 1971.At the bottom of the petition for the fee, defendant wrote out in his own handwriting:

'It is agreed and understood that the $2,344.00 to be received by M. Jack Marshall is to be turned over to Robert P. Carter.

M. Jack Marshall' Upon being paid the fee at the end of December, 1970, defendant was then holding $4,454 in his personal account of which he was entitled to only $2,110 as fee.Despite the persistent and vigorous demands of his client for the payment of the funds belonging to him, Mr. Marshall declined to make any payment to him.

Finally, on March 10, 1971, Mr. Carter filed a formal complaint with the Bar Association of Baltimore City against Mr. Marshall.The complaint was heard before the Grievance Committee of the Association on November 5 of that year and the following day Mr. Marshall made his first effort to pay the money he owed his client when he issued his personal check to Carter in the amount of $250.At the time of the hearing before this court, he had paid a total of $1450 in more or less regular monthly instalments of $100 each and he has subsequently paid off the balance in full, following the hearing today, with interest.At least this court was so informed by counsel just before the recommendation was announced.

The court concludes that Mr. Marshall improperly took the funds of his client, deposited them with his own instead of holding them in an escrow account of the client, and unreasonably and improperly refused to pay over the money belonging to his client until finally compelled to do so, beginning at the time of the hearing before the Grievance Committee, and terminating with the hearing today.It is the opinion of this court that this conduct merits suspension from practice for one year.'

Accompanying this factual determination was the recommendation of the hearing court concerning disposition of the charges.It reads:

'It is recommended that the Court of Appeals of Maryland adjudge M. Jack Marshall to be guilty of professional misconduct in that he violated Canon 9 and, specifically, Disciplinary Rule 9-102 of the Code of Professional Responsibility.It is further recommended that he be suspended from the practice of law for the period of one year.'

When the record of the proceedings conducted in the hearing court arrived here, neither party filed exceptions to the recommendation, as authorized by Rule BV5 b 2.Nevertheless, considering the magnitude of the breach of ethics which was both explicitly and implicitly factually determined by the hearing court to have been committed, we issued an order directing the respondent to show cause why he should not be disbarred from the further practice of law in this State.Marshall, in responding to that order, controverted only the panel's unfavorable answer to him on the crucial question of whether he was authorized, as the recipient of a loan from his client, to expend the funds which are the subject of this dispute for his personal use.This is consistent with the position Marshall advanced in the hearing court.And, in this Court, though originally filing no exceptions, he asserts, as we conclude he had a procedural right to do, 'that the trial court erred in its finding of the fact that M. Jack Marshall did not borrow funds from his client' and 'that the facts as determined by the trial court indicate an absence of fraudulent intent on the part of M. Jack Marshall.'Implicit in this answer is an admission by the respondent that he commingled with his personal funds and used for his own benefit the $2,344 portion of Carter's award as well as the $2,110 fee referred to in the trial panel's findings of fact.The evidence which supports respondent's claim of a loan is specifically controverted by Carter's testimony.

This conflict presents a question for determination initially by the hearing panel and then by this Court.The hearing court, as already noted, stated that it: '(did) not believe Mr. Marshall's contention that his client made a loan of the $2,344 to him.'In resolving this conflict in the testimony, we consider the findings of fact of the hearing court in support of its recommendation to have, before us, a similar force and effect to those contained in a master's report in equity.SeeIn Re Member of Bar, 226 A.2d 705(Del.1967).Previous opinions of this Court have discussed the importance to be attached to the findings of fact in a master's report by the ultimate trier of fact.In those caseswe have said that although the report is only advisory, the court should give full consideration to it, particularly with respect to the credibility of witnesses, where the testimony is conflicting.And, the master's findings of fact from the evidence are prima facie correct and they will not be disturbed unless determined to be clearly erroneous.Bris Realty v. Phoenix, 238 Md. 84, 89, 208 A.2d...