Kerpelman v. Bricker

Decision Date16 December 1974
Docket NumberNo. 100,100
Citation329 A.2d 423,23 Md.App. 628
PartiesLeonard J. KERPELMAN v. William T. S. BRICKER.
CourtCourt of Special Appeals of Maryland

Leonard J. Kerpelman, Baltimore, for appellant.

Thomas G. Peter, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., and J. Michael McWilliams, Asst. Atty. Gen., on the brief, for appellee.

Argued before MORTON, GILBERT and MOORE, JJ.

MOORE, Judge.

In this action for libel, the appellant, a member of the Bar of the State of Maryland, alleged in a three-count declaration that the appellee, an attorney and a Deputy Administrator of the State Motor Vehicle Administration, falsely and maliciously charged in a letter addressed to the Chairman of the Grievance Committee of the Maryland State Bar Association, that appellant's behavior 'before a quasi-judicial representative of the State government was a disgrace to the legal profession, and conduct that certainly requires consideration by your Committee.' The communication further recited that it was written 'not only as Deputy Administrator of a State agency, but as an attorney whose reaction to Mr. Kerpelman's conduct was one of embarrassment and disgust.' A demurrer to the declaration on the ground of absolute privilege was sustained without leave to amend.

It is well settled in Maryland that statements made by counsel and by parties in the course of 'judicial proceedings' are privileged so long as such statements are material and pertinent to the questions involved, irrespective of the motive with which they are made. DiBlasio v. Kolodner, 233 Md. 512, 197 A.2d 245 (1964); Kennedy v. Cannon, 229 Md. 92, 182 A.2d 54 (1962); Maulsby v. Reifsnider, 69 Md. 143, 14 A. 505 (1888). This constitutes an absolute privilege. It is distinguished from a qualified privilege in that the former provides immunity irrespective of the purposes or motive of the defendant or the reasonableness of his conduct, while the latter is conditioned upon the absence of malice and can be lost by abuse. Kennedy v. Cannon, supra. 'This absolute immunity,' wrote Sybert, J. in Kennedy, 'extends to the judge as well as to witnesses and parties to the litigation, for defamatory statements uttered in the course of a trial or contained in pleadings, affidavits, depositions, and other documents directly related to the case.'

Petitions or complaints charging professional misconduct of an attorney are customarily presented in the first instance to the Grievance Committee of a Bar Association and the proceedings are controlled by Code 1957 (1968 Repl.Vol.), Art. 10, §§ 11-26 'Misconduct of Attorneys-Negligence-Disbarment-Suspension' and by Maryland Rules of Procedure, Subtitle BV, 'Discipline and Inactive Status of Attorneys.'

A proceeding before a Grievance Committee has been characterized as a 'judicial proceeding.' Braverman v. Bar Association of Baltimore, 209 Md. 328, 336, 121 A.2d 473 (1956), cert. denied 352 U.S 830, 77 S.Ct. 44, 1 L.Ed.2d 51 (1956). In investigations of such complaints and in the conduct of disciplinary proceedings, such a Committee acts as a quasi-judicial body and is invested with the authority, acting through its executive council, to file charges against an attorney in the Court of Appeals. Rule BV 3.

Clearly the filing of the complaint in this case initiated a judicial proceeding by setting in motion the grievance procedure. Other States have held that a communication similar to defendant's letter is absolutely privileged. Wiener v. Weintraub, 22 N.Y.2d 330, 292 N.Y.S.2d 667, 239 N.E.2d 540 (1968); Ramstead v. Morgan, 219 Or. 383, 347 P.2d 594, 77 A.L.R.2d 481 (1959). See also 3 Restatement, Torts §§ 587, 588. No previous Maryland case has squarely decided the matter and we are urged to rule that only a qualified privilege exists where the complaint is filed not by a lay person but 'by a public official learned in the law' who is at once both a 'brother and a competitor.' We strongly disagree with the latter characterization. Members of the bar are brothers, in a collegial sense, but they are competitors only in the spirit of public service and not-as argued by appellant Kerpelman in brief and at oral argument-in the pursuit of economic advantage, one against another. 1 The practice of law is a profession, not a trade nor a business. Indeed, with the ministry and medicine, it is one of the three 'learned professions.' 2

'For lawyers, the most important truth about the law is that it is a profession.' This statement by the renowned Dean John H. Wigmore from his Foreword to Carter's, The Ethics of the Legal Profession, (1915), was quoted by Chief Judge Vanderbilt in the case of In Re Rothman, 12 N.J. 528, 97 A.2d 621 (1953), as well as these observations of Dean Wigmore which immediately followed:

'As a profession, the law must be thought of as ignoring commercial standards of success-as possessing special duties to serve the state's justice-and as an applied science requiring scientific training.

'And, if it is thus set apart as a profession, it must have traditions and tenets of its own, which are to be mastered and lived up to. This living spirit of the profession, which limits yet uplifts it as a livelihood, has been customarily known by the vague term 'legal ethics.' There is much more to it than rules of ethics. There is a whole atmosphere of life's behavior. What is signified is all the learning about the traditions of behavior that mark off and emphasize the legal profession as a guild of public officers. And the apprentice must hope and expect to make full acquaintance with this body of traditions, as his monual of equipment, without which he cannot do his part to keep the law on the level of a profession. " (Italics supplied.)

Moreover, appellant's contention unfortunately overlooks the important principle that practitioners are required to conduct themselves in accordance with the Canons, Ethical Standards and Directives of the Code of Professional Responsibility adopted by Maryland Rule 1230 which impose upon the individual attorney a duty to call to the attention of the State or local Bar Association improper conduct of a fellow practitioner. This serious responsibility is clearly set forth in Ethical Consideration 1-4 of Canon One of the Code:

'The integrity of the profession can be maintained only if conduct of lawyers in violation of the Disciplinary Rules is brought to the attention of the proper officials. A lawyer should reveal voluntarily to those officials all unprivileged knowledge of conduct of lawyers which he believes clearly to be in violation of the Disciplinary Rules. A lawyer should, upon request, serve on and assist committees and boards having responsibility for the administration of the Disciplinary Rules.'

Misconduct is specifically defined in Disciplinary Rule 1-102 and the requirement of disclosure of professional misconduct is contained in Disciplinary Rule 1-103(A):

'A lawyer possessing unprivileged knowledge of a violation of DR 1-102 shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.'

It is apparent, therefore, that appellant's argument for a qualified privilege only is in derogation of the ethical standards to which he himself is required to adhere. We reject his contention. To Mr. Kerpelman's complaint that the rule of absolute privilege which we adopt affords no protection from false and malicious charges, a ready response is found in the words of the Court of Appeals in Maulsby, supra (69...

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29 cases
  • Sindorf v. Jacron Sales Co., Inc.
    • United States
    • Court of Special Appeals of Maryland
    • June 25, 1975
    ...without regard to his purpose or motive, or the reasonableness of his conduct.' Id. This is absolute privilege. See Kerpelman v. Bricker, Md.App., 329 A.2d 423, filed 16 December 1974. 'If it has relatively less weight from a social point of view, the immunity may be qualified, and conditio......
  • Overman v. Klein, 13641
    • United States
    • Idaho Supreme Court
    • October 27, 1982
    ...197 A.2d 245 (1964) (declaration in prior suit); Bartlett v. Christhilf, 69 Md. 219, 14 A. 518 (1889) (petition); Kerpelman v. Bricker, 23 Md.App. 628, 329 A.2d 423 (1974) (letter of complaint); Gilpin v. Tack, 256 F.Supp. 562 (W.D.Ark.1966) (interrogatories); O'Barr v. Feist, 292 Ala. 440,......
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    • United States
    • Maryland Court of Appeals
    • May 8, 2003
    ...(1964) (declaration in prior suit); Bartlett v. Christhilf, 69 Md. 219, 227, 14 A. 518, 520 (1888) (petition); Kerpelman v. Bricker, 23 Md.App. 628, 634, 329 A.2d 423, 427 (1974) (letter of complaint to then Grievance Committee of Maryland State Bar Association initiating a `judicial procee......
  • McLaughlin v. Copeland
    • United States
    • U.S. District Court — District of Maryland
    • June 7, 1977
    ...320 F.2d 219, 221 (2d Cir. 1963). The court does note, however, that the Maryland Court of Special Appeals in Kerpelman v. Bricker, 23 Md.App. 628, 329 A.2d 423 (1974), held that an attorney who wrote a letter to the chairman of the bar association grievance commission charging an attorney ......
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