Maryland State Bar Ass'n, Inc. v. Phoebus

• Decision Date: 21 November 1975
• Citation: 347 A.2d 556,276 Md. 353
• Parties: MARYLAND STATE BAR ASSOCIATION, INC. v. Harry Thomas PHOEBUS, Jr. Misc. (Subtitle BV) 9.
• Court: Maryland Court of Appeals

Page 353

276 Md. 353

347 A.2d 556

MARYLAND STATE BAR ASSOCIATION, INC. v. Harry Thomas PHOEBUS, Jr.

Misc. (Subtitle BV) 9.

Court of Appeals of Maryland.

Nov. 21, 1975.

Submitted on exceptions by Harry Thomas Phoebus, Jr., in pro per.

Submitted to MURPHY, C. J., and SINGLEY, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

O'DONNELL, Judge.

The respondent Harry Thomas Phoebus, Jr. was admitted to the Bar of Maryland in 1951. These disciplinary proceedings involve his third citation for professional misconduct since 1966.

Following written complaints from the Register of Wills of Somerset County dated February 22, 1974, and from Mrs. Howard W. Ward dated May 14, 1974, the Maryland State Bar Association (Bar Association) conducted an investigation as provided for in Maryland Rule BV2. After hearings on June 7th and October 24, 1974, before its Committee on Grievances, the Bar Association, pursuant to the provisions of Maryland Code (1957, 1968 Repl. Vol.) Art. 10, § 13, and the provisions of Rule BV3, on April 10, 1975, filed a petition in this Court for disciplinary action against the respondent. The petition, in separate counts, charged the respondent with five specific instances of professional misconduct.

The complaint alleged: (a) that as counsel for Mr. and Mrs. Howard W. Ward, he had failed to file any proceedings in their behalf to foreclose the right of redemption in property purchased by them at a tax sale in 1969; and had represented to them that they could construct a building upon the property purchased-which they did-notwithstanding the fact that the period for redemption of such property had not expired; (b) that although instructed by his client, Howard W. Ward, to dissolve a corporation (H. W. Ward & Sons, Inc.) as of December 31, 1973, he had failed to file the articles of dissolution with the State Department of Assessments and Taxation; (c) that as personal representative named under the will of Margaret Wallace, who died on March 27, 1972, he had failed to properly administer her estate, in that he listed 'no assets' in the estate when filing her will with the Register, even though the decedent died owning three parcels of real estate; and that after letters of administration were issued to him on March 13, 1973, he failed to file an inventory until November 20, 1973, and did not close the estate until March 12, 1974, after a complaint was made by the Register; (d) that he had failed to properly administer the estate of Gertrude Williams, who died testate, on November 21, 1970, leaving one parcel of real estate, in that he failed to institute small estate proceedings to sell the decedent's real estate in order to pay claims filed, including that of the decedent's sister, who had paid the funeral expenses; and that, after the institution of such estate proceedings by him on April 27, 1971, he took no further action until a complaint was filed against him in 1974; and (e) that as attorney for the estate of Harry E. Mathers, who died intestate on May 18, 1972, and as resident agent for the personal representative of the estate, his inaction resulted in a loss of the tangible personal property belonging to the estate, with a resultant removal of the personal representative and payment, under the personal representative's bond, for a loss so sustained by the estate.

On April 14, 1975, pursuant to the provisions of Rule BV3 b, we ordered that the proceedings be transmitted to the Circuit Court for Cecil County and designated Judges George B. Rasin, Jr., H. Kenneth Mackey and Edward D. Higinbothom to conduct the hearing provided for in Rule BV4, and to make a recommendation to us as to the proper disposition of the charges, under Rule BV5 a.

Following a hearing on June 30, 1975, in which the respondent, notwithstanding notice, elected neither to appear nor to contest the charges, ¹ the panel of judges unanimously found that each of the five charges had been proven.

The panel concluded, as to the first charge, that he had violated Disciplinary Rule 1-102(A)(4) 'when he advised the Wards (that) they could improve property bought at a tax sale within a period of one year from the date of the tax sale;' and that he also violated Disciplinary Rule 6-101(A)(3) 'when he failed to file proceedings to foreclose the right to redeem and obtain a deed for the property within the period of two years from the date of the certificate of sale.' The panel further concluded that Disciplinary Rule 6-101(A)- (3) had been violated by the respondent, under charges 2, 3 and 4: (a) 'when he failed to conduct the necessary proceedings to dissolve a corporation,' (b) 'when he failed to expeditiously conduct the estate proceedings (in the Margaret Wallace Estate)' since, having drawn the will which referred to her 'home property' and having, after her death, filed the will with the Register of Wills for safekeeping, 'he knew or should have known that it was necessary to conduct estate proceedings to clear title to the real estate,' and that (c) he had 'neglect(ed) a legal matter entrusted to him' when he 'took from November 21, 1970 until May 14, 1974-the date the small estate was finally closed-to conduct small estate proceedings (in the Estate of Gertrude Williams).' In concluding that the respondent had violated DR 6-101(A)(3) as to the fifth charge, the panel pointed out that he 'failed to expeditiously conduct the estate proceedings (in the Estate of Harry E. Mathers) for the personal representative, necessitating the removal of the personal representative and (the) appointment of a successor personal representative;' and that '(h)is conduct caused a loss to the bonding company and probably a loss to those entitled to share in the estate.'

DR 1-102, under Canon 1, and DR 6-101, under Canon 6, of the American Bar Association Code of Professional Responsibility, adopted by Rule 1230, ² respectively provide in pertinent part as follows:

'DR 1-102 Misconduct.

(A) A lawyer shall not:

(1) Violate a Disciplinary Rule.

(2) Circumvent a Disciplinary Rule through actions of another.

(3) Engage in illegal conduct involving moral turpitude.

(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

(5) Engage in conduct that is prejudicial to the administration of justice.

(6) Engage in any other conduct that adversely reflects on his fitness to practice law.' (emphasis added)

'DR 6-101 Failing to Act Competently.

(A) A lawyer shall not:

(1) Handle a legal matter which he knows or should know that he is not competent to handle, without associating with him a lawyer who is competent to handle it.

(2) Handle a legal matter without preparation adequate in the circumstances.

(3) Neglect a legal matter entrusted to him.' (emphasis added)

It is clear from a reading of Code Art. 10, §§ 13 and 16 that disciplinary proceedings will lie, and that sanctions will be imposed, when an attorney is charged with, and there is a finding of, 'professional misconduct, malpractice, fraud, deceit, crime involving moral turpitude, (and) conduct prejudicial to the administration of justice.' See Prince George's Co. Bar Ass'n. v. Vance, 273 Md. 79, 84, 327 A.2d 767, 769 (1974). In all these respects, however, the statute has done little more than enact the general rules upon which the courts of common law have always acted. Ex parte Secombe, 19 How. 9, 14, 15 L.Ed. 565, 566 (1857) (per Taney, C. J.), quoted in Rheb v. Bar Assoc. of Balto., 186 Md. 200, 203-04, 46 A.2d 289, 291 (1946). See also In re Meyerson, 190 Md. 671, 675, 59 A.2d 489, 490 (1948).

We do not believe that the respondent's advice to the Wards, in March or April 1969, that they could 'go ahead and build on the property'-within a period of one year from the tax sale-constituted conduct involving either 'deceit' or 'misrepresentation' within the ambit of the Canons, as well as the statute. See Prince George's Co. Bar Ass'n. v. Vance, supra. ³ As we view it, this advice given the Wards, was attributable to his professional ignorance of the principles applicable to tax sales, as then set forth in Code (1957, 1969 Repl. Vol.) Art. 81, §§ 92 and 100, or his indifference in acquainting himself with those principles.

We have no difficulty however in concluding, as did the hearing panel, that violations of DR 6-101(A)(3) were established, as to each of the five charges, by 'clear and convincing evidence,' the test which we have determined to be the proper one to be applied, both by the hearing panel and by this Court, in disciplinary proceedings. Bar Ass'n v. Marshall, 269 Md. 510, 516, 307 A.2d 677, 682 (1973). Accordingly, we adopt as our own, those findings of fact and conclusions reached by the panel.

We turn next to the sanction to be imposed. After the panel had made its findings of fact and conclusions, the Bar Association introduced evidence of the record of prior disciplinary actions taken against the respondent. This disclosed that the first sanction imposed was his indefinite suspension, ordered by the Circuit Court for Somerset County on September 21, 1966, following his plea of nolo contendere in the United States District Court for the District of Maryland, on August 25, 1966, to two counts charging willful failure to file income tax returns in violation of Title 26 U.S.C. § 7203. That suspension was terminated by order of the circuit court on March 1, 1967 (less than six months later), when the Somerset County Bar Association filed no Answer in opposition to the respondent's petition for reinstatement. ⁴

Such evidence also disclosed that the Bar Association had instituted disciplinary charges against the respondent on March 2, 1971. It was then charged, in two counts: (a) that he, as co-administrator of the Estate of C. Edwin Haymon, had falsely represented to his co-administrator, and to the Orphans' Court of Somerset County, that he had obtained an extension from the Internal Revenue Service for the filing of the federal estate tax...