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

• Decision Date: 10 April 1975
• Citation: 335 A.2d 108,274 Md. 368
• Parties: MARYLAND STATE BAR ASSOCIATION, INC. v. Stuart Edward HIRSCH. Misc. (Subtitle BV) 4.
• Court: Maryland Court of Appeals

Page 368

274 Md. 368

335 A.2d 108

MARYLAND STATE BAR ASSOCIATION, INC. v. Stuart Edward HIRSCH.

Misc. (Subtitle BV) 4.

Court of Appeals of Maryland.

April 10, 1975.

Certiorari Denied June 16, 1975. See 95 S.Ct. 2638.

Stuart Edward Hirsch, Towson, for petitioner.

Robert E. Powell, Baltimore (Joseph I. Pines, Baltimore, on the Answer), for respondent.

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

SINGLEY, Judge.

Stuart Edward Hirsch was admitted to the Maryland Bar in October, 1963. He was in private practice until 1968, when he became an Assistant State's Attorney for Baltimore County. On 1 July 1972, he became Deputy State's Attorney for the County and remained in that position until he was discharged on 21 July 1973.

On 7 June 1974, there was filed with this Court by Maryland State Bar Association, Inc. (the Bar Association) a petition asking that appropriate disciplinary action be taken against Mr. Hirsch. Hirsch was charged with the following violations, among others, of the Disciplinary Rules of the American Bar Association Code of Professional Responsibility: DR 1-102(A)(3) (conduct involving moral turpitude); DR 1-102(A)(4) (conduct involving dishonesty, fraud, deceit and misrepresentation); DR 1-102(A)(5) (conduct prejudicial to the administration of justice); DR 1-102(A)(6) (conduct adversely reflecting on his integrity and fitness to practice law); DR 1-102(A)(1) and DR 1-103(A) (failure to report unprivileged knowledge of violations of Disciplinary Rules and of possible criminal conduct).

As permitted by Maryland Rule BV3 b, we referred to the matter for hearing and determination to a panel of judges of the Fifth Judicial Circuit of Maryland, consisting of Judges Matthew S. Evans, Ridgely P. Melvin, Jr., and James L. Wray. ¹

The matter came on for hearing on the Bar Association's petition and amended petition and Mr. Hirsch's answer and amended answer. The Bar Association submitted as exhibits transcripts of testimony in four matters, which were admitted over Hirsch's objection:

(i) Hirsch's testimony for the State in State of Maryland v. Louis William Irvin, Circuit Court for Baltimore County;

(ii) Hirsch's testimony for the State in State of Maryland v. Samuel A. Green, Jr., Circuit Court for Baltimore County;

(iii) A part of Hirsch's deposition in Stuart E. Hirsch v. Samuel A. Green, Jr., United States District Court for the District of Maryland; and,

(iv) Hirsch's testimony and that of his witnesses at a hearing before a panel of the Committee on Grievances of the Bar Association, In the Matter of Stuart E. Hirsch.

The evidence before the three-judge panel was that in June, 1972, when Mr. Hirsch was an Assistant State's Attorney for Baltimore County under State's Attorney Samuel A. Green, Jr., and a vacancy occurred in the office of the Deputy State's Attorney, Hirsch applied for the position. Green told him that the job was his, that his salary would be increased from $12,000.00 to $17,000.00, but that Hirsch was expected to pay Green $1,000.00. After Hirsch was sworn in, he paid Green $500.00 in cash. Later, Hirsch gave Green two $100.00 tickets to a fund raising dinner, followed by a check for $200.00, which, at Green's request, Hirsch charged, apparently as an expense, to a divorce case in which Hirsch had participated in his private practice. The final $100.00 was forgiven when, according to Hirsch, Green was permitted to use his apartment 'for sexual purposes.'

According to Hirsch's testimony at the Green trial (ii, above), Hirsch, testifying as a prosecution witness, admitted that he had been guilty of 'conspiracy to obstruct justice, bribery, false pretenses, two counts of false pretenses, possibly accessory after the fact of bribery' and conceded that total penalties of 53 years could be imposed. In the hearing before the Bar Association committee (iv, above), Hirsch contended that he had been mistaken when he characterized his conduct as bribery, but maintained instead that he was an innocent victim of extortion. In his deposition in Hirsch v. Green (iii, above), there had been a clear admission by Hirsch that he was guilty of bribery and that he knew it at the time 'Q So as I understand it you admit that you bribed the State's Attorney of Baltimore County for your job?

'A. I will admit that he solicited a bribe from me that I paid.'

The second episode in which the panel found Hirsch to have been engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of DR 1-102(A)(4), and illegal conduct involving moral turpitude prohibited by DR 1-102(A)(3), resulted from an effort by Kneass Harrington to have expunged from the police records a charge of violation of the gambling laws, which had been nolle prossed.

In July, 1972, Harrington had approached Louis W. Irvin, an investigator for the office of the Baltimore County's State's Attorney about this. Irvin talked to Hirsch, who in turn prepared a petition to expunge Harrington's record. Because Hirsch said he regarded his signing the petition as involving a clear conflict of interest, at Green's suggestion, he asked another member of the bar, Stephen L. Miles, to sign it. Miles did so, the order was routinely signed by a judge, and the record was ultimately expunged from the Baltimore County police department records.

In January, 1973, ² after an investigation of the State's Attorney's office by the Attorney General had commenced, Hirsch said he learned for the first time that Irvin had received $750.00 from Harrington. ³ Hirsch, at Green's suggestion, attempted to persuade Miles to open a false file, which would presumably reflect the payment of a fee, which Miles refused to do. ⁴ The three-judge panel found no fault in Hirsch's conduct in the matter up to January, 1973, but concluded that Hirsch's participation in the attempted cover-up was conduct involving 'Dishonesty, fraud, deceit or misrepresentation' (DR 1-102(A)(4)) and 'illegal conduct involving moral turpitude' (DR 1-102(A) (3)).

The panel determined that the charges brought against Hirsch as regards the payment to Green and as to his participation in the Harrington expungement after 12 January 1973 were supported by clear and convincing evidence, and concluded that Hirsch's conduct as regards Green and the Harrington expungement violated DR 1-102(A)(3), (4) and (5) and adversely reflected on his fitness to practice law (DR 1-102(A)(6)). It unanimously recommended that Hirsch be disbarred. ⁵

Hirsch filed a motion ne recipiatur in this Court and alternatively moved to strike the report and recommendation of the panel. His argument in support of the motion was that the report was dated 3 December 1974, a day after Judge Ridgely P. Melvin, Jr., qualified as a judge of the Court of Special Appeals, and was no longer a judge of the Circuit Court for Anne Arundel County. We denied the motion, for the reason that Judge Melvin had been specially assigned to the Circuit Court for Anne Arundel County for the period 2-16 December 1974, and more particularly for the reason that Judge Melvin's designation as a member of the three-judge panel had been made in pursuance of Rule BV3 b and was not conditioned upon his being a judge of the Circuit Court for Anne Arundel County, the reference in our order to the Fifth Judicial Circuit having been made for purposes of identification only.

Hirsch then came before us pro se on his exceptions to the opinion and recommendations of the panel.

Hirsch's first contention in support of his exception is that the panel was illegally constituted. This was disposed of in the order dismissing his motion ne recipiatur or alternatively to strike, which has just been discussed.

Next, he argues that he was denied due process of law when the opinion and recommendations of the panel were not filed within two months of the date of the hearing, presumably relying on Maryland Constitution Art. IV, § 23 and Rule 18 a, ⁶ which is a codification of that section. We have long held these provisions to be directory and not mandatory, Davidson v. Katz, 254 Md. 69, 78-79, 255 A.2d 49, 54 (1969); Pressley v. Warden, 242 Md. 405, 406-07, 219 A.2d 25, 26 (1966) and see Maryland State Bar Ass'n v. Frank, 272 Md. 528, 533-34, 325 A.2d 718, 721 (1974). The Bar Association's petition was filed on 7 June 1974. The case came on for hearing on 26 July, when a motion to dismiss was taken under consideration, and disposed of by order filed 6 August. Hearing on the merits was held on 19 August, and the opinion and recommendations were filed on 3 December. In accord with our decisions, we do not regard this delay as one of constitutional dimensions.

Hirsch next finds a denial of equal protection in the notion that other members of the State's Attorney's staff, who were required to make political contributions, have not been the subject of disciplinary proceedings. The short answer to this contention is that there is simply no evidence in the record before us to support this, nor is there evidence that proceedings are not comtemplated, or that other individuals, who may have been proceeded against, were exonerated.

Next, Hirsch, grounding his argument on In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968), alleges that the three-judge panel erred when it applied the test of clear and convincing proof to the evidence before it, the test set forth in Maryland State Bar Ass'n v. Frank, supra, 272 Md. at 538-39, 325 A.2d 718 and Bar Ass'n of Baltimore City v. Marshall, 269 Md. 510, 516, ...