Kennedy v. Bar Ass'n of Montgomery County, Inc.

• Citation: 561 A.2d 200,316 Md. 646
• Decision Date: 26 July 1989
• Docket Number: No. 101,101
• Parties: Thomas F. KENNEDY v. The BAR ASSOCIATION OF MONTGOMERY COUNTY, INC. Sept. Term 1988.
• Court: Court of Appeals of Maryland

Page 646

316 Md. 646

561 A.2d 200

Thomas F. KENNEDY v. The BAR ASSOCIATION OF MONTGOMERY COUNTY, INC.

No. 101 Sept. Term 1988.

Court of Appeals of Maryland.

July 26, 1989.

Richmond T.P. Davis, Silver Spring, for petitioner.

Douglas L. Lashley (Frank, Bernstein, Conaway & Goldman, both on brief), Bethesda, for respondent.

Argued before ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ., and MARVIN H. SMITH, Associate Judge of the Court of Appeals of Maryland (retired) Specially Assigned.

RODOWSKY, Judge.

Appellant, Thomas F. Kennedy (Kennedy), is a member of the Bar of the District of Columbia Court of Appeals and has been admitted to practice before the United States District Court for the District of Maryland, but has never been admitted to the bar of this Court. In this injunction action the Circuit Court for Montgomery County found, among other facts, that Kennedy "has deliberately attempted to circumvent the provisions of the [Maryland] Code and the Maryland Rules, so as to engage in an extensive and systematic practice of law [in the State of Maryland], both in Court and out of Court, while not being licensed to practice in the State of Maryland." On this appeal Kennedy does not challenge the trial court's fact-findings. He questions only the scope of the permanent injunction which was issued against him, contending (1) that he may maintain an office in Maryland for the practice of "federal" and "non-Maryland" law, and (2) that in certain particulars the injunction is overbroad. For the reasons hereinafter set forth, we basically reject Kennedy's first contention but agree with portions of his second contention.

In March of 1977 Kennedy was admitted by examination to the District of Columbia Bar. Kennedy continued his then full-time job with the Department of State and practiced law for his own account in the evening out of offices at 1025 Fifteenth Street in the District of Columbia. Those offices were headed by the building's owner, Milton E. Canter (Canter), who was also Washington counsel for a New York law firm. Kennedy left the State Department in April 1978 and practiced full time as a solo practitioner in Washington. During that period the District of Columbia professional disciplinary authorities informally admonished Kennedy. In re Kennedy, 542 A.2d 1225, 1231 n. 11 (D.C.App.1988).

In May of 1981 Kennedy assisted, on an emergency basis, a member of the Maryland Bar, Van S. Powers (Powers), in a trial in Pennsylvania. Thereafter Powers and Kennedy entered into an arrangement whereby Kennedy worked out of Powers's office in Hyattsville, Prince George's County, Maryland under supervision and without making court appearances. That relationship ended acrimoniously in February 1984. Each attorney filed a disciplinary complaint against the other in the District of Columbia. Kennedy's complaint against Powers was dismissed. Kennedy's appeal and exceptions to a recommendation that he be suspended for one year and one day were pending before the District of Columbia Court of Appeals when the instant case was tried in Montgomery County. Kennedy also sued Powers civilly and that claim was eventually settled. In that action Kennedy contended that he and Powers were partners.

From December 15, 1981, until November 28, 1983, while Kennedy was working out of the office in Hyattsville, he was suspended by the District of Columbia authorities from the practice of law because of nonpayment of dues. Kennedy states that he was unaware of the suspension, notice of which had been sent to him by registered mail. He explains that he did not go to the post office to pick up the registered mail because he assumed it was from one of his creditors. As soon as Kennedy learned of the suspension, he paid the dues and was reinstated.

When Kennedy's arrangement with Powers terminated, Kennedy formed a partnership for the practice of law with Edward Jasen (Jasen), a member of the Maryland and District of Columbia Bars, who was then sixty-seven or sixty-eight years of age. Jasen had been practicing out of Canter's office at 1025 Fifteenth Street but Jasen's income from his practice had diminished by approximately seventy-five percent due to the withdrawal from activity in Washington of the New York law firm with which Canter had been connected. Kennedy envisioned that the core of a practice with Jasen would be collection work for doctors in which the attorneys would utilize state of the art computerized procedures. Kennedy's share of any firm profits was to be seventy-five percent and Jasen's, twenty-five percent.

The law offices of Jasen & Kennedy were established in 1984 in Silver Spring, Montgomery County, Maryland, first at 8720 Georgia Avenue and thereafter at 1015 Spring Street. The heading of the firm's legal stationery presents the Silver Spring address in the center while, in small type to the right of the heading, the address at 1025 Fifteenth Street, D.C. also appears. On the left of the heading of the stationery symbols indicate that Jasen is admitted in "MD., D.C. & U.S. Courts" and that Kennedy is admitted in "D.C. & U.S. Courts Only." In the October 1985 yellow pages telephone directory of C & P Telephone Co. for Montgomery and Prince George's counties, Kennedy's name was listed in the lawyers' section in bold type. His name was followed by a one and one-half by two inch box ad for "Jasen & Kennedy Silver Spring & D.C. Offices." Only the Silver Spring address and telephone number were set forth in the ad which in part described the firm as engaged in "General Practice Of Law." In the same yellow pages directory for October 1986 through September 1987 there appears in the "coupon section" a three and three quarter inch by one and three quarter inch ad for Jasen & Kennedy which gives only the Silver Spring address and telephone number. In the lawyers' section of the yellow pages for that same twelve month period, under Kennedy's name, is a one and a half inch by two inch ad for Jasen & Kennedy giving both the Silver Spring and Fifteenth Street addresses and telephone numbers. Kennedy's professional card also lists both addresses.

The address at 1025 Fifteenth Street was used by Jasen & Kennedy almost exclusively as a mail drop. Jasen & Kennedy had no office space reserved there, no employees there, paid no rent there but, through an arrangement with Canter, could receive mail and maintain a telephone listing there. Telephone calls placed to the Jasen & Kennedy listing for 1025 Fifteenth Street were electronically forwarded to the Silver Spring office. The trial court found that "[t]he purported office of the Defendant maintained in the District of Columbia is a sham and is not an office for the practice of law by the Defendant as defined by Rule 1-312(b) of the Maryland Rules." ¹

Kennedy produced ninety percent of the business for the firm, and did eighty to ninety percent of the work done by the firm in the office. The practice became sufficiently extensive to justify employing five secretaries. The collection practice, consisting principally of claims by Maryland based doctors against Maryland residents, involved approximately 4,200 open files when the firm's computer system was converted to a new programming language. Whenever counsel was required physically to appear in a Maryland court, Jasen and Kennedy almost always presented themselves together before the court. But Jasen rarely moved for Kennedy's pro hac vice admission pursuant to Rule 20 of the Rules Governing Admission to the Bar. ²

Kennedy sat for and passed the February 1985 Maryland bar examination but was never admitted to the Maryland Bar because of the unresolved disciplinary proceedings pending against him in the District of Columbia.

On November 13, 1985, the Unauthorized Practice of Law Committee of the Montgomery County Bar Association wrote to Kennedy advising him of complaints and of the committee's willingness to accept Kennedy's "certification as an officer of the Court of Appeals for the District of Columbia" that he would immediately desist performing any activities which constituted the practice of law in Maryland. Under date of November 29, 1985, as D.C. Bar Member No. 924068, Kennedy signed the following certification:

"I CERTIFY that I will immediately and henceforth comply with the Maryland Rules Governing Admission to the Bar, and specifically with Rule 20 and with Article 10 of the Annotated Code of Maryland and that I will not engage in the practice of law in the State of Maryland without having been admitted to practice in accordance with the referenced Rules and Statute." [ ³

Thereafter Kennedy continued to represent clients before Maryland courts without seeking a Rule 20 admission. In a May 12, 1986 letter to a representative of the Montgomery County Bar Association, Kennedy represented that he had "continued to abide by the certification" which he had made in November 1985. Under cross-examination at the trial of this case Kennedy admitted that his May 1986 representation was not true.

In the fall of 1986 and through the winter of 1987 Kennedy, in the company of Jasen and without seeking a Rule 20 admission, presented himself as defense attorney in several criminal matters before Judge L. Leonard Ruben in the Circuit Court for Montgomery County. ⁴ They involved either guilty pleas or dispositions following guilty pleas. At trial in this case Kennedy's explanation was that he "[j]ust messed up." He said:

"[W]e tried to do what we thought was right. And, like I said, I think the particular moving force of that was always my father, and not wanting to be any kind of embarrassment to him. But I--I can't explain it other than I didn't [seek Rule 20 admission]. I don't fault Ed Jasen. I don't fault anybody. I'm an attorney. I take pride in the work that I do, and I think that I do good work."

In April 1987 the Bar Association of Montgomery County filed in the circuit court for that county...