Bar Ass'n of Baltimore City v. Cockrell

• Decision Date: 26 March 1975
• Citation: 274 Md. 279,334 A.2d 85
• Parties: The BAR ASSOCIATION OF BALTIMORE CITY v. Paul J. COCKRELL. Misc. (Subtitle BV) 10.
• Court: Maryland Court of Appeals

Page 279

274 Md. 279

334 A.2d 85

The BAR ASSOCIATION OF BALTIMORE CITY v. Paul J. COCKRELL.

Misc. (Subtitle BV) 10.

Court of Appeals of Maryland.

March 26, 1975.

Arthur G. Murphy, Sr., Baltimore (Tucker R. Dearing, Baltimore, on the petition), for Paul J. Cockrell.

David H. Fishman, Baltimore (Joseph I. Pines, Baltimore, on the petition), for Bar Ass'n of Baltimore City.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

DIGGES, Judge.

This disciplinary proceeding brought by the Bar Association of Baltimore City, petitioner, against Paul J. Cockrell, the respondent and a member of the bar of this State, is now before us for final disposition. In Bar Ass'n v. Cockrell, 270 Md. 686, 313 A.2d 816 (1974), we considered the findings and recommendations of the panel of judges to which this proceeding was initially transmitted; but, because that panel found that the respondent had violated certain professional standards of conduct in addition to those then formally before it, we deferred the disposition of the original complaint, granted the Bar Association leave to amend its 'Petition for Discipline,' and referred the proceeding to a different panel of judges for consideration of the supplemental charges that might be made. This was done, however, 'without prejudice to the respondent's prerogative to raise, first in the hearing court and then in this Court, an objection based on the decision of the United States Supreme Court in In Re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968).' Bar Ass'n v. Cockrell, supra 270 Md. at 693, 313 A.2d at 820. After a summation of the factual background of this case, we shall consider, individually, the findings and recommendations of each of these judicial panels.

The accusations ledged against Cockrell all stem from his representation of Alfred Mason in that client's claim against Frank J. Gach, for personal injury and property damage, growing out of an automobile accident which occurred on January 24, 1970. After months of negotiating, Cockrell was able to settle the claim with the insurer of Gach for $2500. The respondent received the settlement check about January 29, 1971, cashed it on February 3, and, after repeated urgings both by his client and the Bar Association (with which Mason had registered a complaint, finally, almost four months later on May 18, had his client come to his office for an accounting. At this meeting Mason signed the settlement sheet presented by Cockrell which showed expense deductions totaling $1,692. 33 ($833.33 attorney's fees, $250 doctor bills, $600 advancements, $9 photostating) and received a check payable to him, drawn on an Illinois bank, for the balance, amounting to $807.67. When Mason presented this check for payment it was returned to him by the bank marked 'insufficient funds.' Eventually, on June 25, Cockrell paid the $807.67 by sending a certified check to Mason's bank.

I. Original Charges Referred to First Panel

The specific professional misconduct allegations, three in number, charged by the petitioner and considered by the first panel, composed of Judges Albert L. Sklar, David Ross and Harry A. Cole, were that the respondent was guilty of:

(i) 'recommending and/or permitting his client to participate in misrepresentation to . . . (Gach's insurance company concerning) the amount of property damage suffered . . . (, in) violation of DR 1-102(A) and DR 7-102(A) (5) and (7)';

(ii) 'offering and/or paying a kickback to the insurance adjuster . . . (, in) violation of DR 1-102(A)(3), (4) and (6)'; and

(iii) 'advancing monies to his client beyond the expenses of litigation . . . (, in) violation of DR 5-103(B). If no monies were in fact advanced, then the presentation of a settlement sheet to his client reciting such advances is a violation of DR 1-102(A)(4) and (6) and of DR 7-101(A)(2) and (3) and 7-102(A)(5).'

The judges on this panel unanimously agreed that the respondent did not misrepresent the amount of the property damage suffered (charge i) and was not involved with a 'kick-back' to the insurance adjuster (charge ii). The Bar Association did not take exception to these findings and, in fact, 'fully concurred' with the panel's conclusions. In light of our careful reading of the entire record, we agree that these charges are not supported by clear and convincing evidence, Bar Ass'n v. Marshall, 269 Md. 510, 516, 307 A.2d 677 (1973), and, therefore, we dismiss them.

As to the allegation contained in charge iii concerning the advancement of money by the accused attorney to his client in violation of DR 5-103(B), ¹ the judicial panel found that the evidence clearly and convincingly sustained this charge. We adopt this finding by the hearing court as not only did Cockrell himself testify that he advanced $300 on January 19, 1971, $150 on January 23, and another $150 on January 27, for a total of $600, but there was also introduced into evidence the May 18 settlement sheet presented by Cockrell to Mason, which itemized a $600 'Reimbursement for Monies advanced.'

II. Additional Charges Referred to Second Panel

Even though not charged in the complaint as originally filed, the first panel found that Cockrell committed the serious offense of misappropriating his client's funds in violation of DR 9-102. ² It is because we felt that this appendaged finding was 'clearly violative of (Maryland) Rule BV3 c as respondent (had) not been charged in the Bar Association's petition with that particular misconduct,' Bar Ass'n v. Cockrell, supra 270 Md. at 692-93, 313 A.2d at 819, that, after disposing of the other procedural objections asserted by the respondent, we granted the petitioner leave to amend though aware of the potential problems with this procedure which In Re Ruffalo, supra, might arguably present.

The Bar Association amended the petition, alleging additional charges. In pertinent part they read:

'On or about February 3, 1971, Cockrell negotiated a settlement check of the Pennsylvania National Mutual Casualty Insurance Company on behalf of Mason by endorsing Mason's name on the reverse of said check. Cockrell received $2,500.00 in cash as the proceeds of this settlement check, and either held said proceeds in cash in his law office or mingled said proceeds with his own funds. Cockrell later appropriated a portion of said proceeds to his own use in connection with the settlement of certain accounts between Cockrell and a Dr. James Priest. Cockrell further deposited a portion of said proceeds in an account in Cockrell's name in an Illinois bank. Mason, despite his repeated and persistent requests for his share of said proceeds from or about February 13, 1971, and thereafter, did not receive any part of the proceeds from said settlement check until June 25, 1971.

'The conduct of Cockrell in initially failing to place his client's monies in trust or escrow account in a Maryland bank, thereafter depositing and commingling his client's funds with his own in an out-of-state bank, and using his client's funds to settle his own obligation with a physician, constitutes a misappropriation of his client's funds and is a violation of Article 10, § 44, Annotated Code of Maryland (1973 Supp.) and of DR 9-102.'

The new charges contained in this amendment were considered by a second panel, composed of Judges Joseph L. Carter, Basil A. Thomas and Solomon Baylor.

Besides assessing whether they thought Cockrell was guilty of the additional charges, the judges of this second panel were requested, under Bar Ass'n v. Cockrell, supra 270 Md. at 693, 313 A.2d 816, to determine whether the decision of the Supreme Court in In Re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968), prohibited the new allegations contained in the amended complaint from forming a basis for disciplinary action.

In Re Ruffalo, supra, involved a review by the United States Supreme Court, on certiorari, of a decision by the United States Court of Appeals for the Sixth Circuit which had disbarred Ruffalo, without a de novo hearing, from the practice of law before that court on the basis of an order of disbarment by the Ohio Supreme Court following proof to that court's satisfaction of Ruffalo's professional misconduct. The accused attorney was found, in the Ohio Supreme Court, to have engaged in misconduct consisting of hiring a railroad car inspector to investigate, during his off-duty hours, Federal Employers' Liability Act claims against the inspector's employer. Ruffalo's objection, in the United States Supreme Court, to this finding of misconduct was that it had not been included in the original charges brought in the state court but was added there through amendment as a result of testimony, which included his own, presented during a hearing on the initial disbarment charges. The United States Supreme Court held that, even though the attorney was granted a continuance in order to have time to prepare a response to the new charge, he was, nevertheless, deprived of procedural due process since the added charge arose from testimony, both his own and that of another witness, given...