Appendix — Kerpelman v. Attorney Grievance Commission

No. 80-854

In THE

Supreme Court of the United States

OctTosBer TERM, 1980

LEONARD J. KERPELMAN,

Petitioner,

V.

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND,

Respondent.

APPENDIX TO BRIEF FOR RESPONDENT

Henry J. MYERBERG,

Acting Bar Counsel

District Court Building

Taylor Avenue and Rowe

Boulevard

Annapolis, Maryland 21401

Telephone: (301) 269-2791

M. Peter Moser

ALAN I. BARON

1300 Mercantile Bank &

Trust Bldg.

2 Hopkins Plaza

Baltimore, Maryland 21201

Telephone: (301) 547-0500

January 26, 1981

TABLE OF CONTENTS

Appendix to the Court of Appeals Opinion in the

case of Attorney Grievance Commission v.

Leonard J. Kerpelman. ___ Md. —__., 240

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Trial Court’s Statement of Procedure, Findings of

Fact and Conclusions of Law .............::eeeeee

Maryland Constitution, Article 4, Section 18 ....

Maryland Laws 1977, Chapter 305 .............0.00

Maryland Rules of Procedure, Chapter 1100,

Subtitle BV — Discipline and Inactive Status

Be SE. sisitiidvenicécncbesneercedckantlacewnsndsiabaldeiecxe

Maryland Rules of Procedure, Rule 1230 ...........

Petitioner’s Exemptions in Court of Appeals Nos.

Be IIR: TOU cuteciisnksivnpiscdepanabharenobaiantunsjasadntdettene

PAGE

No. 80-854

In THE

Supreme Court of the United States

Ocroser TERM, 1980

LEONARD J. KERPELMAN,

Petitioner,

Vv.

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND,

Respondent.

APPENDIX TO BRIEF FOR RESPONDENT

A. 2

APPENDIX

In his report to us Judge Levin set forth

in detail his findings of fact and conclusions

of law. He provided a citation to appropri-

ate portions of the transcript for each and

every factual statement made. We repro-

duce a portion of that report as an appendix

to this opinion. Althougt. we in our opinion

have referred to the Malcomb matter first

and the Draper matter secon/ because that

is the order in which they appeared in the

original complaint, we here set these mat-

ters forth in the order in which they ap-

peared in Judge Levin's opinion. We have

eliminatad his citations to the transcript.

With minor stylistic editing where the mat-

ter of money is mentioned, Judge Levin's

opinion states in pertinent part relative to

the charges before him (all emphasis being

his):

THE DRAPER CASE

Issue One-Did Respondent agree that his

representation of Draper would cost

“about $1,000.00" at a time when Re-

spondent intended to charge more

based on certain factors including a

successful result?

Findings of Fact

Draper, age twenty-six at instant-hear-

ing, was married to Marlene Boetker (Mar-

lene) on July 29, 1970. One child, Jennifer

Britton Draper (child) was born of this mar-

riage on March 19, 1972 On October 15,

1974, Marlene sued Draper for an absolute

divorce on the ground of mutual separation

and sought custody of the child’ Draper

admitted all of her allegations by his an-

swer .... On January 7, 1975, Marlene

and Draper were divorced absolutely, Mar-

lene was granted custody of the child,

Draper was awarded “reasonable rights of

visitation” and onlered to pay $25.00 per

week child support (Decree).

Draper felt later that the child was living

in an “unfit environment” and wanted to

“change custely.” When he met Respon-

* Petitioner,;in printing the Opinion of bs

the Court of Appeals, in his Supplementat

Appendix, has failed to include the Appendix to the Op/nion.

Therefore, Respondent has printed that portion of the Opinion

which was omitted by Petitioner.

A. 3

ATLY. GRIEVANCE COM'N OF MD. v. KERPELMAN

Md. 961

Cite a4, M4., 420 A2d 840

APPENDIX—Continued

dent in April, 1976 at a meeting of Fathers

United for Equal Rights (FUER), he asked

Respondent how much Respondent would

nec! “for the case” and he says he was told

“about $1,000.00" by Respondent (court

costs would be extra). Draper asked Re-

nt“... is that good? You know, is

that what I can count on? And he said

"According to Draper, Respondent

also told him he (Respondent) would need a

$500.00 retainer “to start procedures.”

Shortly thereafter (April 15, 1976), he

obtained a $500.00 Money Order and sent

“your retainer of $500.00" to Respondent

together with the original of the Decree on

approximately April 16, 1976. On May 14,

1976, Respondent filed a petition on behalf

of Draper, to modify the cur tody part of the

Decree. Respondent specifically signed his

(Resvondent's) name to the petition which,

inter alia, stated that the Decree (sought to

be modified) “awarded custody of the minor

child ... to (Marlene).” ,

In the latter part of 1976, Draper re-

ceived a bill from Respondent (dated July

28, 1976) stating “BALANCE NOW DUE”

$460.00 to which he responded by purchas-

ing a Money Order for $460.00 on Septem-

ber 7, 1976. He and Respondent had “set

up a date” because Draper wanted to dis-

cuss the case with Respondent and so Drap-

er went personally to Respondent's office.

When Draper got there, Respondent

“wasn't there so I paid his secretary the

money.” At Draper's request, Respondent's

secretary gave Draper a receipt which stat-

ed, inter alia, “Balance Paid” (he asked “to

‘make sure everything was paid and that I

had proof of it”).

In August, 1976, Draper heard that Mar-

lene had moved out of Maryland and that

the child was living in a “bad environment.”

He went to Syracuse, New York on August

21, 1976 (where the child and Marlene resid-

od) with Marlene's estranged husband and

two male friends and “we rushed in and

obtained my child.” This retrieval was in

flat violation of the Decree. On September

3, 1976, Respondent, on behalf of Draper,

filed a “petition for immediate hearing”

asserting that Marlene was living with a

“boyfriend” charged with rape and break-

0 A M31

ing and entering “who beat the chiki” and

asked for an immediate hearing (for change

of temporary custody) because “this is an

emergency situation.” Although Draper

swore to these “facts” on August 31, 1976,

by way of attached Affidavit, neither he

nor Respondent informed the court of the

illegal child snateh. Thereafter, Marlene

filed a petition for contempt on September

30, 1976, asserting that she had moved to

New York to “avoid continued harassment”

by Draper and that he “broke into her

apartment in Syracuse, New York and as-

saulted her and snatched the child out of

her bed.” On March 23, 1977, after hear-

ing, the Decree was modified by granting

custody of the child to Draper .... The

next day Respondent billed Draper $850.00

for “additional final fee based on fully suc-

cessful conclusion of case” whereupon

Draper wrote Respondent a letter of out-

rage informing Respondent he did not “in-

tend to pay a cent” and was “taking this

matter to the American Bar Association.”

In April, 1977, Draper wrote Respondent

discharging him as Draper's attorney. (The

Court of Special Appeals meanwhile re-

versed, Draper v. Draper, 39 Md.App. 73,

$82 A.2d 1095 (1978), and on remand, Mar-

lene was granted custody of the child by

subsequent decree of April 14, 1978 ....

On June 6, 1977, Draper filed compiaint

with the Attorney Grievance Commission.

The sole dispute is whether Respondent

told Draper that the (about) $1,000.00 waS

a “flat fee” or whether it was a retainer.

Pespondent contended he had a retainer

arrangement and that there never was &

“flat fee basis.” He testified that custody

cases are unpredictable and that he rarely

represented custody cases on & flat (or

“set”) fee basis. He argued that when his

secretary gave Draper a receipt marked

“Balance Paid”, she was “newly hired, had

not been authorized to determine when any

fee was paid in full and had never before

given a receipt to a client.” He referred to

his “temporary note” which purported to

show “Retainer fee $950, $500 down” and

bill of June 23, 1976 which purported to be

a bill from him to Draper indicating a “Re-

tainer Foe” of $950.00.

A. 4

962 Md.

APPENDIX—Continued

His theory was that there was an “im-

plied contract” between himself and Draper

and that it was proper (under a “DR Rule”

which he did not ‘number) to charge the

. additional fee “based on the successful re-

sult—that he obtained custody.” At other

times, Respondent believed he had a “verbal

agreement” as to fees.

Draper denied receiving the June 23, 1976

bill from Respondent and when Draper tes-

tified at instant hearing, Respondent did

not cross examine him about it. When

Draper wrote his letter of outrage to Re-

spondent, he specifically informed Respon-

dent that he had paid Respondent a total of

“$960.00 which you quoted to me. The to-

* tal which you want would bring the amount

to $1,810.00 which is double and not what

was told to me.” He told Respondent he

“had great trust and respect for you ...

but I am very disappointed.” Respondent

responded to the letter of outrage by his

(Respondent's) letter of April 25, 1977 to

Draper which expressed surprise that Drap-

er would question the additional $850.00 bill

and Respondent was “rather offended” at

Draper’s suggestion of “overcharging.”

Yet Respondent nowhere mentioned the

June 23, 1976 bill (which would have cleared

up the matter, it would seem).

In addition, Respondent's notion of an

“implied” contract leaves much wo be de-

sired. As an attorney with thirty years

experience dealing with a (high school edu-

cated) plumber, the client was at Respon-

dent's mercy. He furnished his client with

no guidelines as to what future foes would

be and the “additional” $850.00 bill was

devised solely by Respondent. At no time

did Respondent discuss the additional fee

with his client before he sent it for pay-

ment. A short and simple letter to Draper

setting out the fee agreement alleged by

Respondent would have obviated any mis-

understanding. Respondent's failure to ob-

serve the plain common sense of Ethical

Consideration 2-19 left much to be desired

as has been said. .

Conclusion of Law

Despite all of the highly suspicious cir-

cumstances, { cannot find by clear and con-

420 ATLANTIC REPORTER, 2d SERIES

vincing evidence that Respondent intended

to improper'y charge a fee to Draper in

violation of their fee “agreement.” Re-

spondent is entitled to the presumption that

Draper received the June 23, 1976 bill and

Draper's denial of receipt (by way of an-

swer to interrogatorics) is simply not suffi-

cient to overcome the finding that Respon-

dent sent it and Draper received it. If

‘Draper received it, he was on clear notice

that the payment of $960.00 was a retainer

and not a “flat fee.”

Issue Two-Did Respondent violate DR 2-

110(A)(2) by allegedly refusing to de-

liver to Draper, the decree of modifi-

cation (or copy) of March 23, 1977

(awarding custody to Draper-the re-

sult sought by Draper and objective in

his hiring Respondent) after the mod-

ification hearing and after Draper dis-

charged Respondent? Did he further

violate said Disciplinary Rule by not

avoiding foreseeable prejudice to

Draper before he withdrew his repre-

sentation of Draper and by doing

nothing for Draper in the face of dan-

ger of additional litigation?

Findings of Fact

Draper discharged Respondent as his at-

torney in April, 1977. On May 13, 1977,

Marlene’s attorney wrote Respondent con-

cerning certain visitation problems. Re-

epondent then wrote Draper, on May 23,

1977, telling Draper to give the matter his

earliest attention (he also said he didn't

wish to become involved “in any further

services upon your behalf” because Draper

refused to pay the “reasonable final fee

bill”). At all of these times, Respondent

did nothing on behalf of Draper. Respon-

dent then filed a form, “Motion to Strike

Appearance” on June 2, 1977 and on June

20, 1977, leave was so granted.

Previously, Draper asked Respondent for

a copy of the “Decree” (meaning the Deerce

of Modification whereby the court awanled

custody of the child to him), Obviously

Draper needed the Decree to prove the le-

gal validity of his custody. Respondent re-

fused stating he would obtain it when the

“outstanding” bill was paid. He assertud

an “attorney's lien.”

A. 5 .

ATTY. GRIEVANCE COM'N OF MD. v. KERPELMAN

Md. 963

Cite as, Md. 420 Ald 940

APPEN DIX—Continued

Conclusion of Law

Despite Bar Counsel's contention that Ke-

spondent violated DR 2-110(A\2) (because

the fee was outside the scope of their agree-

ment” and hence the attorney's lien was an

“improper assertion”), 1 do not conclude

that Respondent did so violate it. When

Respondent received the letter from Mar-

lene’s attorney, he promptly wrote a letter

of alert to Draper. As to the attorney's

lien, it is recognized in Maryland. Attorney

Griev. Comm'n v. McIntire, 286 Md. 87, 405

A.2d 273 (1979) as a “passive lien on the

papers, securities and money belonging to a

client coming into the lawyer's possession.”

The Court of Appeals in Ashman v. Schee-

ter, 196 Md. 168, 173, 76 A.2d 139 (1950) also

mentions “all papers, securities and money”

referring to them as “such things.” While

the Disciplinary Rules state that the attor-

ney shall “delive{r) to the client a// papers”

(emphasis supplied), the appellate decisions

also state the right of an attorney to retain

all papers, id. at 173, 76 A.2d 139. If the

purpose of the lien is to protect an attorney

from non-paying clients, then it cannot be

said that Respondent improperly asserted

the attorney's lien.

If I cannot conclude by clear and convine-

ing evidence that Respondent charged an

improper fee, then I cannot conclude by

clear and convincing evidence that Respon-

dent improperly retained the Decree.

Issue Three-Did Respondent not violate

‘ DR 6101(A)(2) by lack of adequate

preparation, in that he never conduct-

ed discovery, never interviewed any

witnesses nor had in person inter-

ce views?

“

ve

.

a Findings of fact

All of the findings of fact set out [previ-

ously relative to the Draper complaint) are

incorporated in instant findings of fact.

The face to face contacts between Re-

spondent and Draper were as follows:

a. Brief discussion at FUER meeting in

April of 1976 dealing with fee.

b. Twenty minutes on November 18,

1976 when a “merits” hearing on the modi-

fication petition was to take place, It nev-

er took place.

c. Hearing on modification petition on

March 23, 1977.

Other than these, most of Respondent's

contacts with Draper were by telephone

calls to his staff and letters.

There was only one adversary hearing in

the Draper case, that on March 23, 1977-the

matter of Draper's modification petition

(when Draper was absolutely divorced, he

was not represented by Respondent but by

Stanley Sollins, Esq.). After Draper was

cited for contempt when he “violated a

court order by grabbing the child in New

York,” there is no record of any hearing on

the specific issue of contempt (nor was

Draper ever found guilty of contempt).

Respondent produced two witnesses at

this March 23, 1977 hearing: Draper and

one Bertha Tawney. As to Bertha Tawney,

Respondent did not interview her before he

put her on the stand. Respondent feels

that “personal interviews are not neces-

sary” (of witnessed before trial) nor did he

conduct any in the Draper case. He con-

ducted no discovery either, that is, he filed

no interrogatories, notices for production,

etc., requests for admission, nor conducted

any depositions.

T*. custody report of Judith Finn (a so-

cial worker of the Anne Arundel County

Department of Social Services) was re-

ceived in Draper's case. It recommended

that Draper receive custody of the child and

the trial court, relying heavily on her re-'

port, awarded custody of the child to Drap-

er. The trial court would not allow Mar-

lene’s attorney to cross examine Ms. Finn

during Marlene’s case but, on appeal, the

Court of Special Appeals stated that “a

court appointed investigator in a custody

case occupies the position of an officer of

the court and at the request of either party,

may be called as the court's witness, subject

to cross examination by both parties.”

Draper v. Draper, 39 Md.App. 73, 81, 382

A.2d 1095, (1978) (the trial court was re-

versed on a different ground). After hear-

ing, the court decreed custody to Marlene

on April 14, 1978 and there was no appeal

A. 6

954 Md.

APPENDIX—Continued

nor have there been any proceedings since

then.

While Respondent's representation of

Draper is surcly not a paradigm of compe-

tence or adequacy, this court cannot find by

clear and convincing evidence that he han-

died the Draper matter “without prepara-

tion adequate in the circumstances.”

His failure to interview personally Bertha

Tawney, for example, was of obvious cetri-

ment to his client because Respondent was

forced to claim “surprise” after her first

substantive answer. If he had interviewed

her (or taken her deposition), he would have

known, at the outset, that she was not

present at time felt to be significant by

Respondent. Actually, the “surprise” rule

was not applicable because Respondent had

never even talked to his witness (he only

had talked to Draper). The refusal of an

attorney to personally interview a witness

can logically lead to problems (sometimes

severe) because the attorney is left tc rely

only upon the biased version furnished by

his client-a version that may not be true

nor accurate. That is precisely what hap-

pened with Bertha Tawney because when

Respondent claimed surprise, the trial court

asked, “This is a different story than what

you were previously told?” and Respondent

was obliged to reply, “By my client. yes”

(emphasis supplied). (Respondent wanted

to show that when Marlene came to the

house with a policeman, the child ran to

Draper.) When Bertha Tawney said she

was not present at that particular time,

Respondent was forced to desist from fur-

ther questioning. (He never produced the

policeman as a witness either.)

In addition, the failure to know what

your witness will say in testimony can

waste everybody's time: the court’s, the

witnesses, the attorneys and the parties. It

is to be noted that Respondent understood

the value of discovery as when he remon-

strated with an opposing lawyer ... in the

Draper hearing (“If you spent a little more

time on interrogatories and more prepara-

tion, you might be ..."). Respondent as-

serts that in custody cases “You don’t know

how many witnesses the other side is going

420 ATLANTIC REPORTER, 2d SERIES

to produce in a domestic case and particu-

larly in a custody case. You don’t know

what the facts are going to be, you don’t

know how they are going to expand by the

time the case comes along.” However, if he

had filed interrogatories, he would have

known how many witnesses and what the

facts would be; if he had interviewed or

deposed witnesses he could prevent them

from “expanding.” Respondent himself

makes out a persuasive case of his own

inadequacy.

Nor is Respondent’s assertions that he

“won the case” convincing. The essence of

the trial court’s decision to award Draper

custody was based upon the social worker's

report (“The court relies heavily on the

report of Judith Finn and the Department

of Social Services,” Draper v. Draper, 39

Md.App. 73, 77, 382 A.2d 1095 (1978)). One

might say that the report won the case for

Draper. No matter what was responsible

for the “win,” it was short-lived in any

event because Draper no longer has custody

(the trial court was reversed and the child is

now in the custody of her mother).

Conclusions of Law

However, this court cannot find by clear

and convincing evidence that Respondent's

representation was so inadequate as to con-

clude that he violated DR 6-101(A 2).

V'tle Respondent's failure to utilize obvi-

ous tools was probably dictated by his de-

sire to avoid costs (he claims he would have

to pass on such costs to his clients) the line

between trial tactics and adequacy of prep-

aration can sometimes be blurred. Experts

in the field of family law feel that the “first

interview” is of tremendous significance.

They advise office interviews of a minimum

of one to two hours uninterrupted by any

distractions.

Contrast that with Respondent's tele-

phone theory, “It is totally unnecessary for

human beings to communicate information

one to the other, that they be in the same

room and it has not been so since the inven-

tion of the telephone and in fact far be-

fore.” In fact, Respondent is apparently

proud of his lack of office interviews even

boasting that some of his clients “never sce

him until the day they go to court.”

A. 7

ATTY. GRIEVANCE COM'N OF MD, v. RERPELMAN

Md. 965

Che as, Md. 420 A.2d 940

APPENDIX —Continued

Respondent's irresponsible boast that

some of his clients never sce him until the

day of trial can easily backfire on him. In

fact, conduct even less reprehensible may

subject an attorney to malpractice. Com-

pare Bevevino v. Saydjari, 76 F.R.D. 88, 96

(S.D.N.¥.1977) (attorney's failure to pre-

pare defendant's doctor for his deposition

prevented him advancing a valid defense-~

court suggests malpractice suit to doctor).

On the other hand, the conscientious attor-

ney must not be required to spend his (and

his client's) money needlessly. Nor should

there be overdiscovery. J. L. Ebersole, Dis-

covery Problems: Is Help on the Way? 66

A.B.A.J. 50 (Jan., 1980). But note the word

“conscientious” however. This should re-

quire, de minimus, an effort to inform the

client and involve him in decisions about

discovery. Regular discussion will not just

make it harder for clients to complain later,

but will generate sympathy for the attor-

ney who treats his client as a person in a

mutual undertaking rather than as a child

While a reasoned decision as to whether to

pursue a particular avenue of discovery is

within an attorney's discretion, Identiseal

Corp. v. Positive ID Systems, 560 F.2d 298,

302 (7th Cir. 1977), certainly the total ab-

sence of discovery may well be outside the

bounds of discretion. See generally W.

Barthold, Negligence in Discovery: No Pa-

per Tiger, Litigation, vol. 6, Fall 1979 at 39.

It must be noted, however, that Bar

Counsel has specifically dropped the “ne-

giect” violation against Respondent leaving

only the inadequate preparation charge.

Since Respondent knew he had a favorable

report from the Department of Social Serv-

ices and since he may have anticipated that

the judge might be favorably impressed by

the neutral and experienced source, it can-

not be said that he was required to have

prepared additionally. I really cannot con-

clude by clear and convincing evidence that

Respondent has violated the latter rule un-

der the circumstances.

Moreover, the “inadequacy” Disciplinary

Rule nowhere spells out any guidelines for

instruction in this Orwellian ficld, Brown,

ABA Code of Professional Responsibility:

In Defense of Mediocrity 5 Valparaiso L.R.

95, 99 (1970), and before one may find pun-

ishable inadequacy, a stronger case must be

presented. Some observers feel attorney

conduct must reach proportions of sroas-

ness. 24 Hastiny LJ. 675, 693 (1973), while

others feel the standard of care may be

more closely akin to negligence. Zilly,

Recent Developments in Legislative Mal-

practice Litigation (Litigation, Vol. 6, No. 1,

Fall 1979 at 8, 17, 64). The American Bar

Association Committee on Ethics and Pro-

fessional Responsibility declined to give

meaningful responses to various questions

that could have provided a more workable

definition. The “inadequacy” Disciplinary

Rule ics vague and general. Canon Six’s

Ethical Considerations nowhere enlightens

us as to the meaning of “inadequacy.” No

mention is made of duties of investigation

and preparation, conferring with the client

“early and often,” frequently edvising him

ascertaining and developing strategies, fil-

ing appropriate motions (to produce, to re-

quest admission of genuineness and authen-

ticity), the duty to personally interview

clients and witnesses and the duty to file

interrogatories and when necessary, take

depositions. One wants to raise the compe-

tency of attorneys to at least a minimum

level but one also worries about the lack of

specificity of the inadequacy Disciplinary

Rules. See generally Morgan, The Evolv-

ing Concept of Professional Responsibility,

90 Harv.L.Rev. 702 (1977).

In sum, while Respondent’s representa-

tion was spotty and somewhat deficient,

this court cannot find by clear and convine-

ing evidence that Respondent handled the

Draper case without preparation adequate

in the circumstances.

Issue Four: Did Respondent violate any

Disciplinary Rule by advising Draper

to retrieve (meaning illegally child

snatch) the child from Syracuse, New

York in flat violation of an unmodi-

fied court decree awarding custody of

the child to Draper's former wife

(mother of the child)?

Findings of Fact

The Decree of January 7, 1975 uneduivo-

cally granted Marlene custody of the child

A. 8

966 Md.

APPEN DIX —Continued

with reasonable visitation rights to Draper.

From January 7, 1975 to August 21, 1976,

there was no modification of the Decree.

‘.Draper met Respondent in April, 1976 and

retained him to “change custody” because

he felt the child was living in an “unfit

environment.” After Draper paid Respon-

dent his fee, Respondent filed a petition for

modification on Draper's behalf on May 14,

1976, asking that Draper be awarded custo-

dy. On May 17, 1976, the court, per the

clerk, issued an Equity Subpoena to Mar-

lene at 139 Rigi Avenue, Syracuse, New

York 13206 (to Answer or defend).

In early August, 1976, Draper was told by

his former mother-in-law that Marlene had

moved out of the state and that she was

living with a criminal. Draper twice con-

sulted with Respondent on the telephone in

early August, 1976 asking him if “some-

thing could be done about this.” Respon-

dent suggested that Draper get the child

“but not to say anything to anybody about

it, because it was not the procedure of

attorneys.” Respondent told Draper [, ac-

cording to Draper,] that when he went, “not

to make it a breaking and entering charge

type of thing but to try to get in without

breaking the door down, and, you know,

just get my child.” Respondent also told

_ Draper that if he (Draper) were successful

“we might get a faster response from the

cour” and that it might show “rood con-

cern on my part.” On August 21, 1976,

Marlene was living with the child in Syra-

cuse, New York (and a man named Jerry

Cushman-later convicted of breaking and

entering).

On that date, Draper went to Syracuse,

New York with the estranged husband of

Marlene ... and two other males (“case her

boyfriend gave us some trouble”) and “we

rushed in and obtained my child” (from her

bedroom).

On September 3, 1976, Respondent filed,

on Draper's behalf a petition for immediate

hearing asking for a change of temporary

custody “because this is an emergency situ-

ation.” He mailed it to Marlene on August

31, 1976 just ten days after the child snatch.

The upper left of the petition indicates it

420 ATLANTIC REPORTER, 2d SERIES

was typed three days after the child snatch

(August 24, 1976). Neither Respondent nor

Draper advised the court of the physical

seizure of the child. On September 30,

1976, Marlene petitioned to hold Draper in

contempt and on the same date, the court

... Ordered Draper to return custixly of

the child to Marlene pending litigation of

the matter of modification. On March 23,

1977 after hearing, the trial court awarded

custody of the child to Draper ...; his

decree was reversed by the Court of Special

Appeals, Draper v. Draper, 39 Md.App. 73,

532 A.2d 1095 (1978); and on April 14, 1978,

the tral court ... awarded custody of the

child to Marlene with reasonable rights of

visitation to Draper. The matter thus came

full circle.

I find as a fact that on May 14, 1976,

Responcent knew of the Decree. Aside

from the fact that Draper sent it to him in

April, 1976 when he paid Respondent his

fee, the petition for modification prepared,

drawn and filed by Respondent, “moves

that this court modify its Decree concerning

child custody,” says the parties were divorc-

ed by “Decree ... dated January 7, 1975”

and prays the court to modify “its” Decree.

Although Respondent seemingly denied see-

ing the decree till he gave his deposition (in

the instant case in 1979), he acknowledged

that “this was besides the point, beca:se my

notes show that the wife had custody” and

“that would sort of indicate that Mr. Drap-

er would very well have given me those

papers, but at any rate, I was accurate that

Mr. Draper's wife had custody.”

I find as a fact that in August, 1976,

Respondent did suggest to his client, in flat

violation of the Decree, that he (Draper)

physically take the child from the Syracuse

residence where she was living with her

mother; that it was Respondent's and not

Draper's suggestion; that Respondent told

Draper to not make it look like a breaking

and entering but just to get the child; that

if it was successful, “we” might get a faster

response from the court and it woukl show

good concern on Draper's part; and that

Respondent told Draper not to say anything

to anybody about it. I find further that the

A. 9

ATTY. GRIEVANCE COM'N OF MD. v. KERPELMAN Md. 967

Che as, Md, 420 A2d 940

APPENDIX—Continued

idea of taking [Marlene’s estranged hus-

band) and the two men was Draper's, not

Respondent's (but that Draper's idea ema-

nat directly from Respondent's sugges-

tion that Draper not break in. Thus Draper

took Marlene’s estranged husband to trick

her into opening the door).

At first, Respondent denied that he had

advised Draper between April, 1976 and

August 21, 1976 that he should “retrieve”

the child then in Marlene's custody as per

the Decree ((i) “False. The Respondent

does not remember using any such quoted

imprecation to Mr. Draper ..."). How-

ever, he later shifted ground, admitting he

had used the word “retrieve.”

I find as a fact that Respondent testified

before the Inquiry Panel on January 28,

1978 as follows:

L “... when you have performed a

child snatch, as any number of my

clients, on my advice, have done ...”

2 “... Now we had that hearing and

then-oh, before that I had planned

carefully with Mr. Draper just how

he was to retrieve the child. Well,

first of all, whether to retrieve the

child and the answer to that was

clear. And we planned how to re-

trieve the child.”

3 “I think I did more than he realizes.

There was the pre-planning, there

was the snatch, there was this first

hearing.”

Despite the Respondent’s protestations

that when he said “retrieve” what he really

meant was to legally retrieve, his testimony

is fatuous and entirely unconvincing. He

testified that in his view, retrieval means:

“the legal plan, the pleadings that would

be filed, the setting of having the case

brought promptly before a judge, also the

legal possession that would be established

that Mr. Draper, having a right to rea-

sonable visitation, which has been denied

him, had a right also. This legal position

is what was carefully planned on retriev-

ing the child, that is, retrieving the child

back into his court ordered custody is

what I'm talking about. I'm talking

about getting the child ordered by the

court in a decree to be turned over to the

euctody of Mr. Draper.”

He testified further that:

“I was planning with him, and preparing

myself, for the legal position that since he

had the right to reasonable visitation and

since the chiki was being held with a

promiscuous mother, living in the same

{home] with an alleged felon, that for him

to ask to take the child back from here

for his visitation is one thing he could

have done, that was part of the planning

Another part of the planning was to

try to get an immediate court order con-

cerning return of the child.”

However, it is clear that a commonsense

view of Respondent's (Inquiry Panel) use of

the word “retrieve” is that he meant to

physically take the child. Aside from com-

mon sense, Respondent (himself) invariably

uses the word “retrieve” to mean take:

1. “I'll have to ask the court to bear

with me. I'd been here about ten

minutes early, and at that time was

unable to retrieve my files.”

2 “Did I throw them in the waste bas-

ket? Have I retrieved them from the

garbage dump or what?” (Respon-

dent is the questioner).

3. “Q. How were they brushed aside

physically, you tell us.

“A. You put your hand out and

pushed them aside.

“Q. Where did I push them to?

“A. It would have been over in front

of me or over towards the center of

the table.

“2. Did I then use those notes later

in the trial or not?

“A. I don't believe so. You may

have. I don’t believe you used those

in the way I'm talking about.

“Q. Did you retrieve them?

“A. Did I what?

“Q. Retrieve them?

“A. Oh. Thank you. No sir. You

retrieved them. You showed them in

court.” (Respondent is the question-

er).

A. 10

968 Md.

APPENDIX—Continued

4. “He goes and retrieves his child ...”

5. “Just that at the time the child was

retrieved ..."

6 “Yesterday evening I went down to

my basement and was able to retrieve

a file.”

7. In his deposition, he testified that

“Draper has been on the risk to re-

trieve the child* from New York”

but “explains” that “it was not a

careful and an accurate use of the

word.”

His labored and tortured attempts to ex-

plain away his earlier sworn testimony (be-

fore the Inquiry Panel) are totally uncon-

vincing. He refers to a Random house dic-

tionary definition but must acknowledge

that the first definition is “recovered, re-

_gain.” He then twists the word to mean

that Draper was trying [to] retrieve his

visitation right. Draper, however, clearly

stated that the purpose of the child snatch

was to remove the child from the bad envi-

ronment (not: visit)... .

If he meant “retrieve” in the sense of

obtaining a valid court order, he does not

explain why there was no hearing before

Draper retrieved the child. As to the peti-

tion for immediate hearing, it was filed

after the retrieval thus further negating

Respondent's motion of Jega/ recovery. Re-

spondent speculates that the petition could

have been dictated before the retrieval but

here too his position is unconvincing. If

indeed his secretary was slow in typing this

petition, surely Respondent would have

known when he filed it (September 3, 1976)

that the retrieval had already taken place.

Respondent tries to argue that the petition -

was sent to Draper for his signature but

one wonders why such a slow process was

used if there was such an emergency. |

find as a fact that Respondent know of the

retrieval (on August 21, 1976) at the time

he filed the petition for immediate hearing

(September 3, 1976). If Respondent's legal

theory is correct, why would he not have

obtained a signed court order in Maryland

awarding temporary custody to Draper so

* Respondent's use of “retrieve” in his everyday

use is thus equated with his use of “retneve”

420 ATLANTIC REPORTER, 2d SERIES

that the New York authorities could honor

it? In fact, Respondent offered into evi-

dence exactly such an order but it was

never signed by any court because iL was

never presented to any court.

Respondent’s visitation theory is totally

unsupportable and totally unconvincing. A

non-custodial parent simply cannot take

three men with him and physically grab a

child out of her bed because he feels the

custodial parent unfit. If he does so, his

visitation rights may be completely denied.

See Friedland v. Friedland, 174 Cal.App.2d

874, 345 P.2d 322 (father told friend “one

way or other we will get the child” and had

on several occasions broken into the custodi-

al mother’s home-visitation denied). Even

if visitation rights are not denied (Anderson

v. Martin, 257 S.W.2d 347 (Tex.Civ.App.

1953)) reasonable visitation ‘s not to be

equated with a bald and illegal child snatch.

Respondent is obliged to admit that he

advised any number of his clients to per-

form child snatches, yet he tried to expiate

his admission by saying he only meant legal

child snatches. By legal, he says he means

taking your child before there is a court

order. He acknowledges, however, he made

an “unfortunate choice of words” and he

further acknowledges that he is “not saying

that it (child snatch) cannot cover an illegal

one.” His explanation is fanciful and ab-

surd. He is hoist by his own petard.

It is interesting to note that when Draper

testified at the March 23, 1977 hearing as to

why he snatched the child, he testified that

he went on Respondent's advice. Thus

Draper's exact same version was given be-

fore Judge Beardmore at a time when there

was no complaint by him against Respon-

dent, the same version was given before the

Inquiry Panel; and the same version was

given in instant case. Draper's testimony is

entirely consistent and credible as opposed

to the testimony of Respondent-testimony

which is riddled with self-contradiction, in-

consistency and illogic. Jt is further inter-

esting to note that when Respondent him-

as concerns Draper's physical taking (‘on the

risk to retrieve the child’) (emphasis supplied)

A. 11

ATTY. GRIEVANCE COM'N OF MD. v. KERPELMAN

Md. 969

Che at, Md, 420 A.2d 940

APPENDIX—Continued

self alluded to the fact that his client Drap-

er testified that he (Draper) acted “on coun-

sel’s advice,” Respondent did not contradict

Draper at all. In fact, he (Respondent),

sugyrested “it was an emergency situation

_.. he (Draper) was doing the right thing.”

On direct examination, Respondent testi-

fied that he never advised a client to child

snatch if there is a court order. However,

Bar Counsel produced a former client of

Respondent's (William Brecka) who testi-

fied that when he asked Respondent to rep-

_ resent him, Respondent told him in Decem-

ber, 1975, he would have to dismiss his then

attorney have a fee of $850.00 or $950.00

and “would have to be willing to do any-

thing that was necessary to get custody of

the children.” When Brecka pointblank

asked Respondent what he meant, Respon-

dent replied “I will deny it if 1 am asked,

but you have to get the children and keep

the children and go as far away as possible

and stay away as long as possible.” When

Brecka told Respondent he was going to

take the children to Charleston, South Caro-

lina, Respondent told Brecka “Don’t tell me,

I don’t want to know. Just tell me when

you're going.” (Brecka did take his three

* children to South Carolina and kept them in

Charleston for five or six weeks but flew

back to Maryland, the children returning

with their mother).

Respondent felt this evidence was inad-

missible. However, a witness may be con-

tradicted on collateral matters that are rel-

evant to the issue on matters hrought out in

direct examination of the witness. See

generally 98 C.J.S. Witnesses, Sec. 633 at

653 ((1957)]. It was Respondent who first

testified on direct examination that he had

never advised a client to child snatch if

there was a court order, thus offering his

probity and consistency for the considera-

tion of the trier of fact. Surely Bar Coun-

sel can try to contradict particularly when

the matter of child snatch and child custody

constitute the basic issue. ef., Walder v. U.

S., 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503

(1954) (on direct examination, defendant

said he had never sold narcotics in h's life;

in rebuttal government allowed to produce

officer to testify he had seized heroin from

defendant's home at unrelated time); see

also U. S. v. Epps, 438 F.2d 1192 (4th Cir.

1971); AKrider v. Hempftling, 137 S.W.2d 83,

86 (‘Tex.1940) (where one party offers evi-

deinwe in regard to ivcelevant matter, other

party may not only inquire about it but he

is entitled to offer evidence otherwise inad-

missible).

_ Brecka also testified that Respondent

“would, occasionally step over the line of

from walking that fine line right on the

edge of the truth or truth if you wish to put

it that way, stepping over and stepping

back” and “he is basically truthful, with a

reservation that he would not tell you the

whole truth and that he could lie but on

balance, he is truthful.” Brecka was a

self-employed building developer. He, oth-

er members of FUER and Respondent went

to FUER meetings in Baltimore City, How-

ard and Montgomery Counties. The Brecka

testimony was admitted solely for the pur-

pose of credibility and has noi been con-

sidered substantively. Finally, the evidence

against Respondent is so overwhelming oth-

erwise, that even if the Brecka testimony

were inadmissible, it would make no differ-

ence at all. ;

Conclusions of Law

This court finds by clear and convincing

evidence that Respondent's concuct was in

violation of Disciplinary Rules 1-102(A\1),

1-102A)(4), 1-102(AX5) and 1-102(A\6).

1-102(A)(4)

A lawyer shall not engage in conduct

involving dishonesty, fraud, deceit or

misrepresentation.

He practiced a fraud on the court which

issued the decree of January 7, 1975 by

suggesting, planning and helping to carry

out an illegal and invalid child snatch in

violation of the decree. He encouraged his

client to violate the decree and he filed

pleadings designed to consummate the vio-

lation.

1-102(A)(5)

A lawyer shall not engage in conduct

that is prejudicial to the administration

of justice.

A. 12

970 Md.

APPENDIX—Continued

Respondent's conduct in calculatedly

planning the violation of the decree is obvi-

ously conduct prejudicial to the administra-

‘ tion of justice. legal child snatching has

reached epidemic proportions (Baltimore

Daily Record, February 5, 1980, vol. 184 No.

30 ut 1) and conduct such as Respondent's °

strikes at the heart of the administration of

justice: Respondent himself is aware of

this (“The purpose of establishing Courts

. is to prevent ... people from engaging

in self help. In the old days before there

were courts, people would shoot each other

... this is uncivilized.)

1-102(A)(6)

A lawyer shall not engage in any other

conduct that adversely reflects on his

fitness to practice law.

Respondent's conduct quite clearly re-

flects on his fitness to practice law. For

partisan purposes, he flouts the law. In so

doing, Respondent tramples on the rights of

the custodial parent and brutally deprives

her of her child on the mere say-so of the

non-custodial parent. The non-custodial

parent-spurred on by Respondent-takes a

young child without affording the custodial

mother a chance to be heard. For her, due

process is non-existent. Respondent a!so

bulldozes the courts whose decrees are -e-

duced to a nullity by him. Respondent’s

mentality leads him to conclude that “court

orders are not holy writ.” While they are

obviously not, they must be obeyed for the

clear reason that if everybody did whit

Respondent did, chaos would surely ensue.

1-102(A)(1) °

A lawyer shall not violate a Disciplinary

Rule.

Since the above Disciplinary Rules have

clearly been violated, Respondent has there-

fore violated above Disciplinary Rule (a

lawyer shall not violate a Disciplinary

Rule).

Finally, I find by clear and convincing

evidence that Respondent violated Discipli-

nary Rules 7-102(A\(7) and 7-100@(A). (See

[prior] discussion).

420 ATLANTIC REPORTER, 2d SERIES

THE MALCOMB CASE

Issue One: Did Respondent violate any

Disciplinary Rules by making an

agreement with Malcomb that his rep-

resentation of Malcomb would cost

$1,000.00 and yet intended, at the time

of the agreement, to charge an addi-

tional fee based on certain factors,

including a successful result?

Findings of Fact

John D. Malcomb (Malcomb) ... was for-

merly married to Merie Burgess (Merle) on

July 14, 1963 and two girls were born as a

result: Kirsten, born April 26, 1965 and

Heather, born April 13, 1968. In March,

1973, Malcomb and Merle separated and on

March 29, 1974, they were absolutely di-

vorced. The Decree provided that the cus-

tody of the children was awarded to Mal-

comb with the right to Merle to visit at

reasonable times. Their separation ayree-

ment of January 16, 1974 was made a part

of the Decree and it stated, in pertinent

part, that Malcomb should have custody of

the two it being agreed that Merle

“is not waiving her right to the custody

... but that both ... feel that it would

‘ be to the best interest of the children at

this time if the two children ... were in

the ... custody of (Malcomb). (Merle)

reserving the right to take custody of the

two children at such time as her situation

. may change and as long as it will be in

the best interest of the children.”

_.. In November, 1974, Malcomb remarried

(Kathleen).

In December, 1974, Merle (who had also

remarried) had an attorney write Malcomb

that she wanted to regain custody of the

children and Malcomb selected Respondent

to represent him. Respondent wanted a

$500.00 retainer which Malcomb sent him.

Respondent sent a copy of Respondent's

letter to Merie’s attorney (a Mr. Pryor) to

the effect that Maleomb had no intention of

changing the agreement. Since Kathleen

was ill, Maleomb decided not to continue

with the case and Respondent agreed (to

drop the case) and sent a $200.00 refund to

Malcomb in early January, 1975.

A. 13

ATTY. GRIEVANCE COM'N OF MD. v. KERPELMAN

Md. 97]

Che as, Md, 420 A.2d 940

APPENDIX—Continued

In the Fall of 1975, Merle tried to keep,

the children from Malcomb who then con-

suited a different attorney (Richard G. Bar-

tholomee, Esq.). Over the Thanksgiving

holiday of 1975, Malcomb had let the chil-

dren visit with Merle but Merle insisted on

keeping Heather contending she was ill

(Malcomb did get Kirsten back). Malcomb

became suspicious and called the doctor who

said Heather was not ill. Although Mal-

comb again consulted Bartholomee, he did

not react adequately, according to Malcomb.

Malcomb then contacted Respondent to rep-

resent him to get Heather back.

The above constitutes undisputed facts.

The following paragraph constitutes Mal-

comb's contention (disputed by Respon-

dent). Respondent said it would be an up-

hill battle “and it is going to cost you

$1,000.00.” Respondent agreed to accept

$500.00 in a few days, the rest in a couple of

months “as long as I paid him the whole -

amount before the thing came to court.”

It is undisputed that after Malcomb paid

Respondent the $1,000.00 (received by Re-

spondent on December 16, 1975, February

‘11, 1976 and April 6, 1976), Respondent's

bookkeeper marked the deposit “Paid in

Full.”

It is undisputed that Respondent then

sent Malcomb a copy of a letter from the

court (re trial on April 30, 1976) with a

typed note from Respondent stating, inter

alia, that “It would be appreciated if the

balance of my fee ($500.00 bal] could be

paid before trial.” Malcomb then sent the

additional money as the result of receivirg

that document.

- It is undisputed that the April 30, 1976

hearing was reset for June 8, 1976. On that ©

day, the hearing took place (Judge H. Kemp

MacDaniel presided) and lasted one day.

The judge did not reach a decision that day.

Respondent sent Malcomb a $650.00 bill

dated June 23, 1976 marked “Further re-

tainer” received by Malcomb on the 25th

“probably.”

Malcomb contends he disagreed with the

bill and intended not to pay it but he felt

that with Respondent's attitude and the

problems he had, “it was best to at least

pay a token amount and then discuss the

rest ... of the fee with him after Judge

MacDaniel had made his final decision.”

He paid him $50.00.

It is further undispuicd iat sumetine

after June 23, 1976, Respondent sent to

Malcomb a copy of a June 23, 1976 letter

from Respondent to Judge MacDaniel con-

firming that the hearing set for July 12,

1976 would be instead on Tuesday, July 20,

1976 ... (attached was a note dated June

21, 1976 from the judge stating that on

“June 8, 1976 a hearing on Petition for

Modification of Decree and Petition to re-

turn child held sub curia pending further

evaluation by the court ...).”

Malcomb contends that because the June

23, 1976 letter had a note by Respondent

asking Malcomb to call him (Respondent),

he attempted to contact Respondent but he

was not able to. He waited several days

after the July 20, 1976 hearing date, but

didn’t hear from Respondent. He attempt-

ed to call him but was not able to reach him

so he called Merie and asked her if she had

heard anything about the decision. Merle

said, “Of course, don’t you talk to your

attorney? The judge gave me custody of

Heather and you keep Kirsten and you pay

me $25.00 a week support” (meaning for

Hcather). Malcomb also called Merle’s **-

tooney (William Hammond, Esq.) (Ham-

mond) “because I wanted to get it from a

totally credible source.”

On July 27, 1976, Malcomb and Kathleen

saw Respondent at a meeting of FUER at a

church in Baltimore and he contends Re-

spondent said:

Oh, Mr. Malcomb, I have been meaning to

call you, that I am still working on the

case. And | said, Working on it? I

thought it had been settled? He said,

Settled?, Nothing is ever settled. It is

still up in the air. It is touch and go. I

have been meeting with the Judge and

trying to get it worked up. You know,

Judges are very reluctant to divide custo-

dy of children.

Malcomb contends he was confused and

so the next day (July 28, 1976), he called

A. 14

72 Ma.

APPENDIX—Continued

Judye MacDaniel’s office to talk to the

judge's secretary (to ascertain if a decision

had been rendered). Actually, the judge

answered and although he was reluctant to

talk with Malcomb, Malcomb explained the

situation and asked one question, “did you

make this decision on the 20th of July and

was this your decision.” The judge told

Malcomb “yes.” The next day, Malcomb

called Respondent who told Maleomb he had

talked to Judge MacDaniel that day (July

29, 1976) and the judge told Respondent

that he was ready to sign an order giving

Malcomb custody of one daughter and

Merle custody of the other” if I was willing

to pay $25.00 a week support.”

told Respondent he (Malcomb) had already

agreed to that “as he (Respondent) knew”

whereupon Respondent became very agitat-

ed und angry. Malcomb was finally abie to

calm Respondent down and after he asked

Respondent what to do, Respondent said he

felt $25.00 was outrageous and we ought to

request another full scale hearing to reduce

support because of Merle’s earning capacity.

When Malcomb asked Respondent why Re-

spondent hadn't contacted Malcomb about

the outcome of the case, Respondent be-

came very belligerent and said, “I never did

like you, you little bastard ... you are just

trying to get out of paying my fee.” He

threatened suit and slammeu down the

phone.

In is undisputed that Malcomb was quite

angry and wrote Respondent a July 29, 1976

letter pointing out that since Respondent

knew full well that the judge’s ruling (Kir-

sten to Malcomb; Heather to Merle; $25.00

per week child support for Heather to be

paid by Malcomb) “was the precise arrange-

ment that I had been trying to work out for

almost a year ... you knew ... I was

willing to share the custody with Merle ...

I only went tv court when she tried to take

both of the children.” Malcomb further

accused Respondent of a contemptible and

brazen attempt to string him along after

Judge MucDaniel had mace his decision on

July 20, 1976 and saw no reason to continue

“our relationship.”

dent that since he had paid Respondent

“Your fee of $1,000.00 (which you quoted to

Malcomb -

420 ATLANTIC REPORTER, 2d SERIES

me on the phone and insisted be paid before

the June & hearing)” he saw no reason to

honor the “further retainer“ of $650.00.

It is further undisputed that the very

next day (July 30, 1976) a letter was sent by

Respondent to Judge MacDaniel enclosing a

copy of «a proposed Order endorsed “ap-

proved as to form.” He explained that the

reason for his “slight delay” was to discuss

with Mulcomb the support provision (“to

permit him to reflect” since Respondent

found the “fact situation” quite equivocal

as to whether Malcomb had to muke any

payment for support) and to have Mal-

comb’s decision in writing. Respondent

told the judge he understood Malcomb

called him (the judge) and suspected he said

a number of “derogatory” things about Re-

spondent. He then stated that Malcomb

“has his own highly personal reason for

wishing to have this order signed in haste

and which I do not wish to discuss further.”

It is Malcomb’s contention that there was

no “discussion” as mentioned in Respon-

dent’s July 30, 1976 letter (except for Re-

spondent’s mentioning the $25.00); and as

to Respondent’s statement. that he “was

taking the time to transmit to him and

receive back a communication,” Maicomb

testified there were no communications at

all.

The following in undisputed, namely, that

Respondent then sent Malcomb an August

3, 1976 letter stating that although Mal-

comb was willing to pay $25.00 per week

for Heather's support, Respondent felt the

requirement to do so to be “entirely unrea-

sonable and unfair” (because of Merle's

earning capacity of around $10,000.00 and

her husband's salary). He asked Malcomb

to confirm in writing his acceptance of

Judge MacDaniel's “proffered ruling.”

Two days later, he sent his client, Malcomb,

an August 5, 1976 letter stating that the

custody case was concluded “tenuously”

(and “custody is always subject to the fur-

ther jurisdiction of the court”) because he

(Respondent) was highly surprised that the

He informed Respon court awarded Malcomb custody of one

child because of evidence of homosexuality

and recent “yay” pornography photos and

A. 15

ATTY. GRIEVANCE COM'N OF MD. v. KERPELMAN Md. 973

Cite as, M4, 423 A.2d HO

APPEN DIX—Continucd Respondent sent the latter bill and Mal-

Malcomb “having been nude in the bathtub

with this child.” (However, Judge Mac-

Daniel did not scem to view these matiers

as seriously as Respondent. The judge said,

“There is nothing that the mother of this

child proved against the father that in my

opinion makes the father an unfit person.

She brought out a homosexual situation

that happened prior to the time of the

marriage and some pictures that were

looked at afterwards, but there is no con-

crete evidence of anything that developed

into a problem with these children.”) Re-

spondent warned Malcomb the custedy

award of one child had to be “protected

very carefully” and therefore his bill for

“further proceedings” was for doing just

this including the matter of child support.

He said he did “not believe that $650.00 is

an ‘excess’ [sic] charge for an attorney to

make in seeking to avoid liability of his

client for $13,000 payment” and then

warned Malcomb not to write any “further

neurotic letters to the judge unless you

wish to endanger your award of custody.”

- Malcomb’s contention wac that in the

June 8, 1976 custody hearing before Judge

MacDaniel, Merle had raised fully the mat-

ter of homosexuality. He acknowledged

' such activity but testified it occurred before

his marriage to Merle (in 1962). He denied

recent “gay porno” photos stating he “ap-

parently had gotten on a mailing list” and

received several (postage stamp sized pic-

* tures) over a period of severai weeks. As

has been seen, it was Respondent -and not

Judge MacDaniel-who viewed these mat-

‘ ters so seriously. One wonders why Re-

spondent made these threats upon his client

why’ Respondent felt so threatened.

ae: ’

- The following matters are undisputed,

namely, that Malcomb had already paid Re-

spondent $1,000.00 plus $50.00 on the

$650.00 bill but had refused to pay the

remaining $600.00. Respondent then sent

Malcomb on August 26, 1976 a bill for

$1,850.00 listing a “previous balance” of

$600.00 plus another $1,000.00 for “Addi-

tional finul fce based on successful result.”

There was no conversation nor discussion

between Malcomb and Respondent before

comb did not pay it. Respondent next sued

Malcomb for $1,850.00 in the Towson Dis-

trict Court on October 4, 1976 asking for

summary judgment. He filed an Alfidavit

that “there is justly duc and owing by the

defendant to the plaintiff the sum of

$1,850.00" and attached the August 26, 1976

bill. Respondent then sent Malcomb anoth-

er bill dated October 29, 1976 this time for

$2,250.00. He listed $1,250.00 for “addition-

al final fee based on successful result” and

then added another $1,000.00 for “Re-ana-

lyzation of file, further additional fee based

on time expended.” At no time, did Re-

spondent discuss the additional $1,000.00

with Malcomb nor did Respondent advise

Malcomb of the basis for the $1,000.00.

Malcomb did not pay. Respondent then

sent Malcomb another bill dated February

11, 1977 this time for $2,850.00. It was a

“Revised and Corrected Bill” which added

$600.00 (“previous balance”). Malcomb did

not pay. Five days later (February 16,

1977), Respondent filed an Amended State-

ment of Claim for $4,262.00 alleging an

‘implied contract, to pay reasonable

charges for legal services rendered, and

such services were rendered according to

the attached plaintiff's Statement of Claim

Exhibit 1.” This Exhibit consisted of five

handwritten pages of alleged werk plus the

alleged time for the various alicged items

of work (it also includes the previous bill-

ings) (Although Respondent charged Mal-

comb for two trial “at $950.00 per day” it is

undisputed that there was only one trial

day). Respondent then sent Malcomb a

March 21, 1977 bill for $4,262.00 marked

“Corrected Bill-Based on ‘File Analysis’

done in January, 1977.” In April and May,

1977, Respondent sent “Balance Now Due”

bills of $4,262.00 to Malcomb. Malcomb did

not pay.

Respondent's contention was that the

$1,000.00 paid by Malcomb was only a re-

tainer and that when Malcomb was award-

ed custody of one child, Respondent sent

him a bill for a “modest fee which was in

keeping with my agreement with him,

which was, that the prior payment was a

retainer fee and that the total cumulative

A.

974 Ma.

APPENDIX—Continued

payment would be determined at a later

date.” As to the “Paid in Full” bill issued

to Maleomb by his (Kespondent’s) hookkevp-

er, Respondent testified that she had “just

about full independence;” that “he did not

supervise the books;” that he had “difficul-

ties about the wording, of the bills around

the time” he was representing Malcomt;

that he told her she must be careful. Thus

he contended that she would use “Paid in

Full” for her own “personal convenience” to

refer to any bill with a flat fee or retainer.

He contended that Malcomb initially wrote

asking how much would Respondent require

in the way of a retainer and he billed him

first stating “Further Retainer” of

$1,000.00

As to the various fee demands (from

$650.00 to $4,262.00), Respondent claims

that the $1,250.00 bill was based on the

“successful result” of the Malcomb case;

the $1,850.00 was Respondent's “total addi-

tional claim”; then “upon review of his file,

however, Respondent realized that his ini-

tial billings did not reflect the value of the

actual work performed. Having decided to

sue on a quantum meruit basis, he revised

the estimated value ... upward by

$1,000.00;" the “third additional bill” was

for a “reanalyzation of file, further addi-

tional based on time expended resulting in

total additional claim of $2,250.00;” then, in

preparation for the District Court trial (by

then Respondent had sued Malcomb), Re-

spondent estimated he had done 36.8 hours

worth of work (exclusive of trial time)

which he multiplied by $90.00 per hour and

added his standard fee for two days

($950.00 per day) and arrived at his figure

of $4,262.00. At that, Respondent feels he

“undervalued” his services.

Respondent put on his wife who testified

that Respondent had a lot of telephone con-

versations with his clients and she heard

him invariably talk about retainers. It was

his habit. (However, he sometimes charges

“flat fees" in custody cases).

I find by clear and convincing evidence

that Respondent agreed with Maleomb to

represent Malcomb for $1,000.00 and no

16

420 ATLANTIC REPORTER, 2d SERIES

more and that the agreed $1,000.00 was not

a retaincr. The evidence is overwhelming.

Respondent's own note to his own file

“made at the time of the initial agreement

by Respondent in December, 1975" states

“Fee $1,000.00" and under that “retuiner™

and under that “$500.00 down” and under

that “rest of it in a month or so.” Al-

though. Respondent tries to minimize his

own note (by terming it “unpunctuated”

and by calling Bar Counsel's interpretation

of it “subjective”), this note coincides with

Malcomb’s version entirely .... Moreover,

when Respondent advised Malcomb of the

date for trial, Respondent wanted the bal-

ance of his fee “($500.00 balance)” to be

‘paid before the trial.” He cannot blame

this writing on his secretary because the

request for the “$500.00 balance” was his

own dictation with his own initials (“L.K.”).

Again this coincides exactly with the testi-

mony of Malcomb. Respondent's February

18, 1976 bill to Malcomb indicates “Balance

Now Due ... $500.00" and his March 18,

1976 bill also indicates “Prior Balance

$500.00 Paid February 11, 1976 $50.00 Bal-

ance $450.00).”

Malcomb’s testimony was straightfor-

ward and consistent whereas Respondent's

was variously evasive, inconsistent and mis-

leading. The escalation of fees by Respon-

dent was incredible. He was quick to

charge Malcomb an additional $650.00 fee

two weeks after the June 8, 1976 hearing

but-when Malcomb would not pay it, he

increased his bill to $1,250.00; then

$1,850.00; then $2,250.00; then $2,850.00

and finally $4,262.00.

His excuses were farcical. He sued Mal-

comb in District Court and filed an Affids-

vit certifying that $1,850.00 was the sum

owed by Malcomb. Yet he later sent a

higher bill for $2,250.00 claiming “rean:aly-

zation of file.” One would assume that

when an experienced attorney of thirty

years of practice sues his client for a fee

that the attorney would at least know how

to sue for the right amount. Respondent

claims he did not sue too many of his clients

so the normal thing for him to have done,

would have been to analyze his file careful-

ly before suit and then insert the proj«r

A. 17

ATTY. GRIEVANCE COM'N OF MD. v. KERPELMAN

Md. 975

Che a4, Md, 420 A274 040

APPENDIX—Continued

amount. However, despite the fact that his

ious affidavit certified that the sum for

which he sued was “justly due and owing”,

he then further amended jt up to $4,262.00.

When Respondent sued Malcomb for the

$4,262.00, he purported to inform (he court

of the basir for that ($4,262.00) figure by

attaching a File Analysis.” This analysis

listed, inter alia, “two trial days at $950.00

day-$1,900.00.” However, at the Dis-

trict Court, when Respondent saw that Mal-

comb’s attorney had produced the attorney

(Hammond) who had opposed him (Respon-

dent) at the trial in question (on June 8,

1976),.as a potential witness, Respondent

then admitted the trial took only one day.

(Malcomb testified that although Respon-

dent listed a number of conferences, there

was only one and Respondent's updated en-

tries dic not agree with his records and “I

felt he was billing me ... for other work

that he didn’t do.”) Respondent's testimo-

ny about his “work” is spotty and vague.

“* It is undisputed that Respondent never

discussed any of his escalating bills with

Malcomb beginning with the $650.00 bill.

He simply sent them to Malcomb. As to

Respondent’s August 26, 1976 bill of

$1,250.00 (“Additional final fee based on

successful result,”) if the July 20, 1976 con-

ference (at 2:00 P.M.) with Judge MacDan-

jel left matters so up in the air as Respon-

dent contended (“subject to all sorts of wa-

_vering winds of change ... open at, that

time, was the question of whether Malcom

should pay support, it was still open to

contest”), why would Respondent charge

Malcomb an additional fee for “successful

result?” According to Respondent, he felt

“that the July 20, 1976 decision reached by

Judge MacDaniel (requiring Malcomb to

_ pay $25.00 per week as support for Heath-

_ er) was “unreasonable and unfair” and [elt

it would be “preferable to have a formal

“hearing.” Obviously, in Respondent's mind,

this could not be called a “successful result”

“under such unfair circumstances even if

Malcom» did retain Kirsten (whom he had

before Respondent came to represent him).

Respondent further attempted to justify

the $650.00 fee which he said was not exces-

sive when the arithmetic of it was con-

sidered (meaning Respondent's theory of a

total dollar saving of $13,000.00 to Mal

comb). However, this attitude was at best

a naive and forlorn appeal to (by then) a

totally disenchanted client and at worst a

crude and dishonest effort to bulldoze Mal-

comb into submission. (The only way Mal-

comb could save $13,000.00 was to pay noth-

ing for the support of Heather-something

he never wanted to do.) He was perfectly

content to pay this weekly sum for his

child’s support (as he had been doing before

he consulted Respondent) as he told Re-

spondent on a number of occasions. Re-

spondent was aware of this. Despite

Merie’s earning capacity (she was not then

employed) and marriage, it was decidedly

unrealistic to expect any court to not re-

quire a father (earning near $22,000.00 per

year-as per Malcomb’s answer three to

Merle’s interrogatory-as prepared by Re-

spondent ) to pay something for the support

of his child.

If the $1,250.00 bill was extortionate, the

succeeding bills were even more so. There

was no pretense at justification—simply

bald transmittal of ever-increasing dollar

figures. No warning was given Malcomb;

no conferences held; no attempt to itemize

was made (except for the last bill in excess

of $4,000.00-which contained a major “er-

ror”). There is no evidence from Respon-

dent whatever as to guidelines or standards

for future bills except Respondent’s testi-

mony that “the tctal cumulative payment

_be determined at a future date.” Malcomb

was totally at Respondent's mercy. Re-

spondent’s mercy can be brutal and ruth-

less.

Respondent tried to exploit the fact that

Malcomb accommodated Merle when she

“backdated” their separation agreement

one month. This was mendacious conduct

on Malcomb’s part and Respondent excori-

ated Malcomb. However, by the same to-

ken, Respondent too knew that the March

29, 1974 agreement was based upon a fraud-

ulent date and he too did the same thing as

Malcomb-he kept quiet. His testimony

concerning this inaction is evasive and un-

A. 18

976 Md.

APPENDIX—Continued

convincing. Apart from this, | find Mal-

comb's testimony truthful and credible. 1

believe him when he denied receiving any

January 16, 1976 bill (“Further Retainer”).

While I did not find Draper's denial [in tne

matter of his complaint against Kerpelman]

(that he had received Respondent's June 23,

1976 bill) sufficient to overcome the pre-

sumption that he did receive it, that finding

was based on the fact that the denial was

by way of discovery in California and Drap-

er was not then present in Maryland to be

viewed and questioned. In addition, there

was some suggestion that Draper was un-

der the influence of a drug, compare U. S.

v. Van Meerbeke, 548 F.2d 415 (2d Cir.

1976) (defendant ingested opium in court-

judge admonished for inaction). Here Mal-

comb was in court, he underwent a blister-

ing and humiliating cross-examination by

Respondent and maintained his composure

and credibility.

I find by clear and convincing evidence

that one of the prime motivations for Re-

spondent’s unwarranted, improper and un-

fair billing was anger. He testified before

the Inquiry Panel that “I will show that

client (Malcomt) who had filed this com-

plaint against me, he can’t get away with

that and then I increased the ad damnum,”

he testified he didn’t like Malcomb (he is

“universally disliked”); and “probe'ily that

I was angry at him.” Anger should not be

the basis for charging a fee to a client (nor

the basis for a lawsuit against a former

client). (Respondent was also inconsistent

as when he asserted that “fee disigree-

ments” should be settled by “impartial ref-

erees” and yet turns around and sues both

Malcomb and Draper without any attempt

at arbitration.)

In numerous respects, Respondent testi-

fied in an inconsistent and inaccurate man-

ner. He called the Malcomb case a “junk

case” but then realizing the danger of al-

luding to a custody case involving young

children that way (to say nuthing of charg-

ing $1,000.00 for a “junk case”), he quickly

denied it was a junk case; he testified that

one of the children testified as to the so-

called nude bathing incident in court but

this was not so and, in fact, the children

420 ATLANTIC REPORTER, 2d SERIES

were not even in court; he told Malcomb

the decision of Judge MacDaniel was “en-

tirely unreasonable and unfair” and sug-

gested there should be a formal hearing as

to child support but he told Judge MacDan-

iel that his decision (the judge's) was “en-

tirely correct ... aside from the support

question which is, however, a rclatively mi-

nor matter in the overall case, and, of

course, a matter to which gentlemen may

honestly differ; he told Judge MacDaniel

(by letter dated July 30, 1976) that the

reason for his “slight delay” (in not sending

Judge MacDaniel the proposed order) was

“in order to have (Malcomb’s) decision in

writing, | was taking the time to transmit

to him and receive back the communications

indicating he agreed with the support provi-

sion” whereas his letter to Malcomb asking

for the written confirmation is dated /Jater

on August 3, 1976; ard asserted that he

had “purposely refrained from claiming

that privilege (Fifth Amendment) ... in

his deposition” when he did so claim it as to

his deposition (‘I received a notice of depo-

sition ... and on the basis of Spevack v.

Klein ... 1 refused to be sworn ... on the

basis of the Fifth Amendment.”).

Conclusions of Law

1-102(A)(4)

A lawyer shall not engage in conauct

involving dishonesty, fraud, deceit or

misrepresentation.

I find the following by clear and convinc-

ing evidence: that Respondent represented

to Malcomb that his total fee for his repre-

sentation in the custody case would be

$1,000.00 and no more but that in violation

of his agreement, he charged (or attempted

to charge) Malcomb fees over the agreed

upon amount; that Respondent made a wil-

ful misrepresentation to Malcomb as to his

(Respondent's) fee; that Respondent mali-

ciously and improperly escalated fee

charges to Malcomb without any basis,

without any agreement, without any warn-

ing’ and without the escalated charyes

bearing any relationship to the amount of

work done. Thus he has violated the above

Disciplinary Rule.

A. 19

ATTY. GRIEVANCE COM'N OF MD. v. KERPELMAN Md. 977

Cite as, Md. 420 A246 040

APPENDIX—Continued the judge's ruling wax made July 20,

As to Respondent's doing nothin; to e1-

ther advixe Maleomb or the court of Mal-

comb's knowing acquiescence in Merle’s

backdating of their separation agreement, I

am not convinced by clear and convincing

evidence that Respondent furthered a fraud

on the court.

1-102(A)(5)

A lawyer shall not engage in conduct

that is prejudicial to the administration

of justice.

I find by clear and convincing evideace

that Respondent did improperly and con-

sciously attempt to obtain legal fees from

Malcomb; and did utilize the court system

to knowingly and improperly attempt to

obtain legal fees from Malcomb. There-

fore, he has violated the above Disciplinary

Rule since such condition is clearly prejudi-

cial to the administration of justice. Re-

spondent’s conduct is inimical to justice.

1-102(A)(6)

A lawyer shall not engage in any other

conduct that adversely reflects on his

fitness to practice law.

I find by clear and convincing evidence

that Respondent violated the above Discipli-

nary Rule by improperly attempting to ob-

tain legal fees from Malcomb and by utiliz-

ing the court system kuowingly ana im-

properly to obtain unwarranted legal fees

from Malcomb.

1-102(A)(1)

A lawyer shall not violate a Disciplinary

Rule.

Because I have found by clear and con-

vincing evidence that Respondent has vio-

lated above first three Disciplinary Rules, I

find by clear and convincing evidence that

Respondent has violated Disciplinary Rule

1-102(A\1).

Issue Two: Did Respondent violate any

Disciplinary Rules by misrepresenting

to Malcomb that his case was not yet

resolved in the judge's mind (and

could not have heen) until the August

9, 1976 decree was signed and that he

(Respondent) wax working on the case

(from July 20, 1976 on) when in fact,

1976, and the only matter remaining

was the drafting and approval of the

court-directed order; and Kespondent

was noi working on Niaicomb’s case

but rather trying to give the appear-

ance of work in order to exact im-

proper fees from Malcomb?

Findings of Fact

The facts cs found in Issue Onc ..

also found us to this Issue.

Judge MacDaniel testified that he did

“recall the case” and that the hearing date

(as reflected from the file) was June 8,

1976. “Hearing and testimony was taken.”

He made a decision “when the case was

over, that day.” (June 8, 1976). The deci-

sion was “in accordance with the Decree

that ended up being signed” (the August 9,

1976 decree awarding Heather to Merie;

Kirsten to Malcomb; and requiring Mal-

comb to pay $25.00 per week as child sup-

port for Heather). He was requested by

one of the attorneys to wait a period of

time and allow the attorneys to come back

and argue “or further discuss the case with

me and | believe we even set a firm date

... for them to come back. Whatever date

that was I believe they did come in and I

told them that, what my decision was, ard

told Mr. Hammond, I believe, to prepare 2

Decree, sv init it to Mr. Kerpelman for

approval as to form and then to the court

and that I would sign it” He testified it

was on July 20, 1976 and it was not a

hearing but “just a kind of argument.” He

testified that he did receive a call from

Malcomb and at first, refused to talk to him

until he was “informed that he (Maicomb)

only wanted to know when I was going to

make up my mind and I then did talk to

him ... and I told him that I had made it

up and ... I was only waiting for the

. are

‘attorneys to send in the Decree so I could

sign it.” The judge testified that the rca-

son he talked to Malcomb was “... his

comment was that I hacin’t made a decision

and | felt if I tokd him the decision had been

made, that maybe he would go to his attor-

ney or the other one and get the Decree

into me so I could sign it.”

A. 20

978 Md.

APPENDIX—Continued

He had no recollection at all as to the

matter of support in the July 20, 1976 con-

ference.. He testified that between July 20,

1976 and the time he reecived the Order to

he signed, he “had no contacts with Respon-

dent that he knew of.”

Hammond testified that at the half hour

conference on July 20, 1976, Respondent

was upset at Judge MacDaniel’s indication

that he was going to award child support

for Heather; that Judge MacDaniel asked

me “to prepare an order commensurate

with his decision;” that he did so and sent

the proposed order to Respondent on July

22, 1976 for consent as to form (“if there

are any questions, please so advise”); that

Judge MacDaniel was firm in his July 20,

1976 position (Heather to Merle; Kirsten to

Malcomb; $25.00 child support for Heather)

and “that was his decision whether Mr.

Malcomb agreed to it or whether he didn’t,

that was his decis'»n;” that Respondent

sent him a “temporary order” on July 1,

1976 which he (Hammond) refused to ac-

cept; and that from July 20, 1976 on (to the

District Court case November 4, 1977), he

had no other conversations with Respondent

with regard to the case.

It is Malcomb’s contention that the judge

had clearly made a decision on July 20,

1976, and that Respondent knew it but tried

to convince Malcomb that the matter was

still unresolved. He and his wife Kathleen

testified that they met Respondent at a

FUER meeting on July 27, 1976 and Re-

spondent told him he “was still working on

the case” and that it was not settled.

Nothing is ever settled. It is still up in the

air. It is touch and go. I have been meet-

ing with the judge and trying to get

worked up. You know, judges are very

reluctant to divide custody of children.” It

was also Malcomb’s contention that divided

custody was very much what he (Malcomb)

wanted; that he was perfectly content to

pay weekly child support of $25.00 for

Heather; and that he had told this to Re-

spondent repeatedly. Malcomb contended

that when he discovered Respondent's bra-

zen attempt to string him along he termi-

nated his relationship with Respondent.

420 ATLANTIC REPORTER, 2d SERIES

It is Respondent's contention that the

order was not effective until it was signed;

that despite Malcomb’s willinggness to pay

child support, he was trying to convince him

(Malcomb) not to accept the prepared order

as to child support because of Merle’s curn-

ing capacity and her marriage; that there

was no such July 27, 1976 conversation with

Malcomb at the FUER mecting; that de-

spite Malcomb’s having custody of Kirsten,

this was not secure (because of Malcomb's

past homosexuality); that he promptly in-

formed Malcomb of the outcome of the July

20, 1976 hearing and that Malcomb con-

sidered the option (of contesting the award

of support) for at least a week.

I find by clear and convincing evidence

that Respondent deliberately withheld from

Malcomb the decision of Judge MacDaniel

on July 20, 1976; that he only submitted

' the proposed order to Judge MacDaniel on

July 30, 1976 when he realized that Mal-

comb had found out about Judge MacDan-

iel's decision reached on July 20, 1976; and

that he deliberately withheld the judge's

decision in order to make it appear to Mal-

comb that he (Respondent) was still work-

ing on Malcomb's case in order to justify his

“further” (and improper) fee.

Again, the evidence is overwhelming. |

find as fact the following undisputed chro-

nology of events:

-1. June 8, 1976-It is undisputed that

there was a hearing on this date; and that

the judge stated at the end that the attor-

neys should let the situation remain status

quo (Heather to stay with Merle; Kirsten

to stay with Maicomb); that the attorneys

should return in twe weeks and at that

time, he would make a determination’ that

Malcomb should pay child support for

Heather; and that he had made his decision

(Heather to Merle; Kirsten to Malcomb and

Malcomb to pay $25.00 per week child sup-

port for Heatner) on June 8, 1976 ....

" 2 June 23, 1976-Respondent bills Mal-

comb $650.00 for “Further retainer.”

3.. July 1, 1976-Respondent sends pro-

posed Temporary Order to Hammonil

(Heather to temporarily remain in custody

of Merle; Kirsten to temporarily remain in

A. 21

ATTY. GRIEVANCE COM'N OF MD. v. KEKPELMAN Md. 979

Che as, Ma. 420 A2d 940

APPENDIX—Continued 14. August 5, 1976-Respondent wrote

custody of Malcom, support shall continue

with payments to be made as heretofore).

(Maleomb had been paying $25.00 per week

for Heather's support).

4. July 20, 1976-Conference between

Respondent, Hammond and Judge MacDan-

jel. The judge reaffirmed his previously

reached decision and directed Hammond to

prepare an order accordingly. He was firm

despite Respondent's being upset about

Malcomb being required to pay child sup-

port for Heather ....

5. July 22, 1976 (Thursday)-Hammond

sent proposed order to Respondent and Re-

spondent “probably” received it on July 23,

1976. :

* 6 July 22, 1976-Malcomb called Merle

and Hammond ... and ascertained that he

(Malcomb) was to have custody of Kirsten

and pay $25.00 child support for Heather;

and Merle was to have custody of Heather.

. 7. July 27, 1976-Respondent tells Mal-

comb the case is still not settled; it is still

up in the air; judges don’t like divided

custody ... (while this matter is disputed, I

find as a fact that it occurred).

& July 28, 1976-Malcomb called Judge

MacDaniel and ascertained same thing and

also that the judge had made his decision on

July 20, 1976.

9. July 28, 1976-Malcomb confronted

_ Respondent with the above by telephone.

10. July 28, 1976-Respondent wrote

Hammond he'll return the order as soon as

he has had the opportunity to go over one

or two matters with Malcomb.

11. July 29, 1976—Malcomb sent letter of

termination to Respondent as result of Re-

spondent’s “brazen attempt to string me

along after Judge MacDaniel had made his

decision on July 20th.” _~

12 July 30, 1976~Respondent sent pro-

posed order to Judge MacDaniel (and signed

it). °

13. August 3, 1976-Respondent sent let-

ter asking Malcomb to confirm in writing

his consent to the child support require-

ment. -

Malcomb that the custody case is concluded

“tenuously.”

15. August 9, 2976 Judge MuacDanicl

signed order.

Malcomb's version is entirely credible;

Respondent's is not. It is that simple. If

Respondent promptly informed Malcomb of

the outcome of the July 20, 1976 hearing, as

Respondent says, then why would Maicomb

call Merle? Or Hammond? Or Judge Mac-

Daniel? Respondent offers no corrobora-

tion as to his “promptly” informing Mal-

comb whereas Judge MacDaniel testified

that Malcomb did phone him ‘and what is

more, his (Judge MacDaniel’s) version of

the conversation is exactly the same as Mal-

comb’s. Aside from corroboration, why

would Malcomb want to call these people if

Respondent had really told him about the

proposed order. The decision was exactly

what Malcorb wanted!

As to Merle having custody of Heather

and Malcomb having custody of Kirsten,

Respondent knew that was what Malcomb

wanted. In fact, Respondent had written

on January 7, 1976, suggesting divided cus-

tody on behalf of Malcomb. As to support-

ing Heather, Malcomb had been paying the

weekly sum of $25.00 for Heather's support

even before he consulted Respondent and

he told Respondent he was quite content to

continue to do so (his income was as fol-

lows: 1971-$16,003.30; 1972-$15,224.03;

1973-$21,052.41 and 1974~-$21,707,43).

Respondent admits he probably received

the proposed order from Hammond on July

23, 1976. So he had it in his possession

from July 23, 1976 to July 30, 1976 (when he

mailed the agreed upon order to Judge

MacDaniel). Even before he received the

order from Hammond, he knew

Judge MacDanicl’s decision (having been

informed of it at the July 20, 1976 confer-

ence). If he promptly advised Malcomb of

that decision and if, as has been seen, the

decision was precisely what Malcomb want-

ed, why would Malcomb write a letter of

outrage to Respondent? Although Respon-

dent claims Malcomb was trying to avoid

paying the $650.00 fee, I find conclusively

A.

9SO Ma

APPENDIX—Continued

that Malcomb was genuinely outraged and

did not desire to bilk Respondent out of his _

fee. Malcomt had paid the $1,000.00 fee

set by Respondent in accordance with Re-

spondent's direction but when Respondent

sent a bill contrary to their agreement,

Malcomb balked and understandably so.

More to the point is that the actual deci-

sion was reached not on July 20, 1976 but

on June 8, 1976. Judge MacDaniel testified

that he reached the decision on June 8,

1976, repeated it on July 20, 1976 and ulti-

mately signed an order embodying the same

decision on August 9, 1976. While Respon-

dent attempts to avoid the implications of

this basic fact by a legal argument (that the

decision did not become final until signed),

that is beside the point. From a fact find-

ing viewpoint, Malcomb’s actions make

sense, are consistent and sre credible.

Respondent claims he not only promptly

advised Malcomb to contest the oncoming

child support order but requested that Mal-

comb consider this “option for at least a

week before taking any action.” But as

seen before, why should Malcomb contest

something that he favored? More interest-

ing is the fact that Respondent had to ex:

plain why he kept the proposed order re-

ceived by him for this one week (from July

23, 1976 to July 30, 1976). Respondent had

to explain away that week. Respondent’s

claim that Malcomb was pondcring and con-

sidering the simple matter of whether or

not to support his child is simply not credi-

ble. : .

I find Malcomb's behavior consistent.

Respondent's behavior, however, is not. If,

as Respondent contended, he truly felt that

Judge MacDaniel's proposed order was so

“unreasonable and unfair,” how does he ex-

plain the fact that from June 8, 1976 to

August 9, 1976, he did absolutely nothing

about it? He wrote no letters to Judge

MacDanicl (nor to Hammond); he filed no

motions and asked for no hearings. There

was absolutely no conduct on his part to

evidence such displeasure with the support

phase of the upcoming order. On the con-

trary, he wrote Judge MacDaniel calling

the support question “a relatively minor

22

420 ATLANTIC REPORTER, 2d SERIES

matter in the overall case” and that gentic-

men couki differ. Even before the July 20,

1976 canference, the objective conduct of

Respondent i is consistent only with acquies-

cence in the support situation. Malcomb

had been paying $25.00 per week for Heath-

er's support, and on July 1, 1976, Respon-

dent sent to Hammond a proposed tempo-

rary order (prepared by Respondent) pro-

posing child support “as heretofore.” Re-

spondent tries to avoid the implications of

his action by asserting a difference between

temporary and permanent child support.

Here aguin, this is beside the point. The

question is what is the totality of the factu-

al situation to a factfinder.

Respondent sent a $650.00 bill for “fur-

ther retainer” on June 23, 1976. The word

“retainer” is significant. If future work

really had to be done, then the $650.00 bill

would be justified at least in the sense of a

fair bargain (work for money). But if

there was no work to be done, then the bill

would be totally unjustified. I find that

there remained no substantial work to be

done after July 20, 1976 and if there were,

none was ever performed by Respondent. I

find further (all by clear and convincing

evidence) that Respondent deliberately in-

tended to give Malcomb the impression that

he (Reenondent) was obliged to perform

work on Malcomb's case when, in actuality,

there was no work to be performed. .

Conclusions of Law

1-102(A)(4)

A lawyer shall not engage in conduct

involving dishonesty, fraud, deceit or

misrepresentation.

I conclude by clear and convincing evi-

dence that Respondent deliberately misrep-

resented to Malcomb that there remained

work to be done on his (Malcomb's) case und

that he (Respondent) was actually engaged

in performing such work, whereas, after

July 20, 1976, there remained no work to be

done and Respondent, in fact, performed no

work and that this misrepresentation was

made to justify an improper fee. I there-

fore find that he violated the above Disci-

plinary Rule.

A. 23

ATTY. GRIEVANCE COM'N OF MD. v. KERPELMAN

Md. 981

Cite as, Md., 420 A.2d 40

APPEN DIX—Continued

1-102(A)(6)

A lawyer shall not engage in any other

conduct that adversely reflects on his

fitness to practice law.

I conclude by clear and convincing evi-

dence that the aforesaid deliberate misrep-

resentations by Kespondent constitute clear

conduct that adversely reflects on his fit-

ness to practice law. In addition, Respon-

dent deliberately misrepresented to Judge

MacDaniel in his July 30, 1976 letter that

his delay in transmitting the proposed order

was caused by his desire to have Malcomb’s

written agreement as to the child support

provision (and to have Malcomb have

enough time to be certain) whereas in fact .

Malcomb had not communicated his written

ment at the time Respondent sent the

July 30,°1976 letter (nor after); and there

was no necd for Malcomb to so agree in

writing since at all times Malromb had

agreed and Respondent knew it.

Issue Three: Did Responde.:t violate DR

- 2=110(a)(2) by imprope*ly withholding

Malcomb's papers and the decree af-

ter being discharged »y Malcomb;

and by continuing to desl with Judge

MacDaniel after he was discharged?

I find no clear and convincing evidence

_ that Respondent violated this Disciplinary

Rule. e

Issue Four: Did Respondent violate DR

6-101(A)(2) by lack of adequate prepa-

ration in that he conducted mo dis-

_ covery, interviewed no witnesses be-

~~ fore trial, called witnesses who were

A. of little or no probative value, failed

*. to call witnesses who were of proba-

tive value and generally displayed no

knowledge of the facts surrounding

the Malcomb case?

. The facts as found in Issucs One and Two

2... are also found as to this Issue.

.

‘ Bar Counsel asserts that Malcomb “want-

“ed” both children-meaning custody of both.

I do not agree. While Malcomb may have

wanted custody of both at an carlier time,

his final and steady decision was to obtain

custody of Kirsten ulone allowing Merle to

have custody of Heather.

eke:

Findings of Fact

The trial in question took place on June 8,

1976. It arose as the result of Merle’s filing

of a petition to modify the March 29, 1974

deeree (which granted custoly of both chii-

dren to Malcomb). Mualeomb’s then attor-

ney (Bartholomee) filed Malcomb’s answer

to said petition and also filed written inter-

rogatories upon Merle. She filed her an-

swer and also filed written interrogatories

upon Malcomb. By this time, Respondent

had replaced Bartholomee. Respondent

filed a petition for “Immediate Return of

Child” (Heather) and obtained a Show

Cause Order (December 17, 1975). He also

filed answers to Merle’s interrogatories.

(December 23, 1975). Respondent then is-

sued a summons for witnesses (Malcomb's

wifc, Kathleen, Dr. Jane Mason, Sarah

Fischer and Janet Slutter) together with

subpoena duces tecum for Drs. G. P. Patton,

Jane W. Mason, Harvey L. Saxton and San-

tiago Garza.

The trial took one day. Merle produced

five witnesses and Respondent produced

five also (including Merle as an adverse

party). While Respondent filed no inter-

rogatories, his predecessor (Bartholomee)

did. Merle’s answers provided the names of

certain witnesses but Respondent never de-

posed nor interviewed them (except that he

did summon Dr. Jane Mason, one of the

witnesses listed in Merle’s answers to inter-

rogatories).

Prior to trial, Respondent did have one

“formal interview ” with Maleomb but he

never interviewed any of Malcomb’s wit-

nesses until the day of the trial. Nor did he

depose anyone. This subjected him (Re-

spondent) and his client to the same type of

infirmities as mentioned previously ....

Respondent did hire one Mary Slicher

(private social worker) to investigate. Bar

Counsel feels that Respondent failed to note

the contents of her report as concerns Mr.

and Mrs. Grabus which, Bar Counsel feels,

adversely affected Malcomb. Yet paradoxi-

cally Bar Counsel downplays Ms. Slicher

noting that Judge MacDanicl did not allow

her to testify as an expert (“not to her

expericnce but just observations”) nor “was

her report admitted into evidence.”

A. 24

9S? Md. 420 ATLANTIC REPORTER, 2d SERIES

APPENDIX—Continued

What Bar Counsel perceives as inadequa

cy may well be trial tactics. For this rea

son and for the reasons outlined [previous

ly], I do not find that Respondent violate:

DR 6-101(A{2).

Se /F&D

:

ATTORNEY GRIEVANCE COMMISSION Bn ss 289 IN THE

OF MARYLAND (le oe

3 . COURT OF APPEALS

Petitioner = Ae Mia. Comma My

OF MARYLAND

v. 5 :

ioe : Misc. Dkt.

LEONARD JULES KERPELMAN ~

r} (Sub-title BV) = Xc.

Respondent : Sept. Term 1979

-o00-

STATEMENT OF PROCEDURE,

I 5

“GONCLUSIONS OF LAW

On March 20, 1979, the Attorney Grievance Commission

of Maryland nae) through Bar cuiaes” filed a petition for

disciplinary action against Respondent in the Court of Appeals

pursuant to Rule we of the Maryland Rules of Procedure (MRs).

He asserted that the Review ined’ had directed him to file

aden that Respondent engaged in bineaidiiiier in connection

with his representation of three former clients: David W.

Draper (Draper), John D. Malcomb (Malcomb) and Everett G. Jarvis

(Jarvis). [The Jarvis charges were later snaceiineaie He

asked the Court of Appeals to take such disciplinary and other

action as it “may deem appropriate." By Order dated March 23,

1979, the Court of Appeals responded to Bar Counsel's allegations

that Respondent did unethically and unprotesejensssy violate \

certain provisions of the Disciplinary Rules of the Code of

Professional Responsibility (CPR) and transmitted the charges to

the Supreme Bench of Baltimore City (Eighth Judicial Circuit) to

be heard and determined by the ne Throughout the

proceedings, Bar Counsel was represented ty J. Martin McDonoush,Jr. .

Esq. (McDonough) and Henry J. Myerberg, Esq. (Myerberg). The

Respondent represented himself. He was tol¢é of his right to

oa

counsel and his right to not be represented.T. April 15, 1979

ee

PLEADINGS

Respondent, who was served personally with the

9

Petition on March 27, 1979, filed various pleadings thereafter:

1. Motions For Protective Order

On March 30, 1979, he filed a Motion for Proctive

10

(sic) Order to prohibit the taking of his deposition, prohibit

the AGC from conducting further "discovery" (without further leave

ll

of court and without good cause shown) or to require him to

12

answer Interrogatories without good cause shown. He asserted

that there was full testimony before the Inquiry Panel, that the

taking of his deposition would inconvenience or prejudice his

clients and set back important trial matters, that the purpose

was to harass him and that he had "not yet obtained counsel"

(as a matter of fact, he never did obtain counsel even though

13

he was advised by the court of his right to counsel many times).

[On March 30, 1979, he filed another Motion for Protective Order

seeking the same esi” alleging that the case was not yet

at issue. As to both motions, he asked for spiel On

April 5, 1979, Bar Counsel answered Respondent's two eaten

and moved to strike in we Counsel's Motions were denied.

T. April 5, 1979 at 11-13).

18

After a full hearing, Respondent was ordered to

19

answer “or otherwise respond" to Bar Counsel's Interrogatories.

His response was that he refused to answer them because they

20 21

exceeded thirty, after full hearing on this issue, Respondent

tec 22

was ordered to file answers to the Interrogatories (except

for Interrogatories 3 and 6 to which Respondent's exceptions

were jie (Respondent thereafter refused to answer

certain Interrogatories so Bar Counsel filed exceptions. After

a full Te certain of Bar Counsel's exceptions were

sustained and certain were aan.

Also after a full hearing, his motion not to have his

deposition taken was denied. On the morning of the deposition,

Respondent refused to be sworn on the basis of the "Fifth

Amendment” (citing Spevack v. Klein" 87 Supreme Court, 625")

whereupon both Respondent and McDonough came to this court's

chambers at 9:50 A.M. on April 18, 1979. This court, citing

MSBA v. Sugarman, 273 Md. 306 (1974), ruled that Respondent

had a right to assert the Fifth Amendment [T. April 18, 1979

at 15] but that he should be sworn, questions should be put

and “he will assert the privilege if and when he wishes" [id

at 19] - see id generally).

2. Motion For Transfer .

On April 10, 1979, Respondent moved the Court of

Appeals to have his case transferred from Baltimore City to

another judicial circuit. The Court of Appeals, by Order

dated April 20, 1979, denied said Bie

3. Election For Jury Trial

2¢

On April ss 1979, Respondent elected a jury trial.

After a full hearing, this election was denied on May 2, 1979.

(MR-BV 10d states that hearing of charges is governed by the

same rules of law and procedure as are applicable to the trial

of civil proceedings in equity. MR517 provides that fact issues

-4-

shall be determined in equity without a jury, cf. Village Books

v. St. Atty., 263 Md. 76, 94 (1971). While there appears to be

no Maryland case, the law does not guarantee a jury trial in

disciplinary cases. State v. O'Bryan, 385 P. 2d 876,895-96

(Okl. 1963), app. dism. and cert. denied, 376 U.S. 649 (1964);

and see generally 50C.J.S. Juries, Sec. 66.

4. Demurrer

31

On April 10, 1979, Respondent demurred to Bar Counsel's

32 33

petition. After a full hearing, the demurrer was overruled.

5. Motion For Severance

34

On April 10, 1979, Respondent moved for severance.

35 36

After full hearing, this motion was denied.

6. Motions Raising Preliminary Objections

(Bias and prejudice ty Attorney Grievance Comm ssion

Inquiry Panel, Review Board, Maryland State Bar Association,

and Baltimore City Bar Association)

On April 10, 1979, Respondent filed thirty-one Motions

“Raising Preliminary ae He alleged a denial of due

process because of religious prejudice by the entire staff of

Bar Counsel ("Not one...was of Respondent's religion");

because the Inquiry Panels were set up by bar association

officials acting with religious prejudice and those of his

religion were underrepresented; that the Review Board "appeared"

to contain only two persons of Respondent's religion out of

fifteen and was "packed"; that the Inquiry Panel and Review Board

were not representative of individual practitioners (Respondent

said he was such) or criminal defendants c- plaintiff's attorneys

but rather large law firms; that Inquiry Panel and Review Board

members were selected exclusively from Maryland State Bar Associ-

ation and County Bar Associations and not from other Bar Associ-

ations (such as the Monumental Bar Association; hence, he argued

their philosophy differed from his and they were not representa-~-

tive); that the Inquiry Panel refused to adduce- evidence of

-5-

prejudice, that the Review Board did not give him a copy of the

transcript; that the Review Board denied oral argument; that the

AGC was biased against Blacks and Jews and was slanted towards

large law firms, insurance and bank companies; the Review Board

was hasty and did not allow Respondent to remove "certain stated

enemies" of his; that the Review Board's Report did not spell his

name correctly; that the Review Board did not have one of the

transcripts available at the time of its decision; that the

Inquiry Panel and Review Board acted on the basis of uncorroborated

testimony of displeased clients alone; that the AGC refused to

consider his charges of its bias; that the AGC dismissed serious

claims against lawyers who were not Black, Jewish, small firm

or individual practitioners; that the AGC was financed by an

illegally imposed oS that the charges were different from

those heard before the Inquiry Panel and Review Board and

included charges added by the Review Board after such charges

had been dismissed by the Inquiry aeaaiie that the "Chief Judge

of the Court of Appeals, Murphy” participated without disqualify-

ing himself "in certain proceedings” including selection of a

judge to try “this matter" and the said Chief Judge has personal

animosity towards him; that unknown members of the Inquiry Panels

and Review Boards have been established by volunteers; that

Bar Counsel failed to transmit the transcript of testimony to

him (and the Chairman of the Review Board failed to tell the

‘entire Review Board of Respondent's objection in this respect).

Respondent thus asserted a “lack of due process" which

resulted in a lack of jurisdiction over his person and over

the subject matter of the case; insufficiency and illegality

-6-

of process; and a lack of legal capacity of Bar Counsel to sue

him. A couple of months later, he filed an "Ammended (sic)

Motion Raising Preliminary Objection" claiming that different

standards were exercised as to him “than to others" and he was

41

denied equal protectim of the laws.

42

A month later, Respondent filed another “Motion

Raising Preliminary Objection" claiming that he was —,

with an “infamous quasi crime" and hence the "Klein case"

was authority that he could not be charged except on indictment

of a Grand Jury.

Respondent then filed the following request for

Subpoenae Duces Tecum on May 7, 1979:

a. To George D. Solter, Chairman, Attorney Grievance

Commission (Solter) to produce

l.

Voluminous employment and personal records

of the AGC, Bar Counsel and its staff (and

personnel) dealing with race, age, national

origin, color and religion; ("and every such

detail”) its budgets for years 1976 through

1979.

Records pertaining “to the setting up and

employment of the Pittman staff, including |

attorneys, clerks, janitors, sweepers,

administrators and personnel of every sort”

including application forms and personnel files.

Records of the AGC re to terms of membership

of all “inquiry committees and Review Board

committees" and chairmen and vice-chairmen.

-7-

b. To James A. Frost (Frost) to produce certain

numbered complaints made to the AGC.

c. To L. Hollingsworth Pittman (Pittman) to produce

‘ certain numbered complaints.

dad. To Vincent L. Gimerich, President, Maryland State

Bar Association (Gincerich) to produce records of attorneys who

applied for or were selected by the Board of Governors of the

Maryland State Bar Association to be members of the Review Board

showing ages, race, sex, ethnic background and religion.

| e. To Robert E. Ashman, Executive Director, Bar

Association of Baltimore City (Ashman) to produce records re

selection of members of "Inquiry Committee" or Inquiry Panel

showing, inter alia, age, sex, race and religion” and any other

background material” and appropriate charter by by law re

guidelines in selecting.

f. To Theodore S. Miller, President, Bar Association

of Baltimore City (Miller) to produce the same records requested

of Ashman.

On May 7, 1979, he also filed requests for witness

summons for the following:

1. Solter

2. Ronald W. Parker (Parker)

3. H. Earl Weagley (Weagley)

4. Frost

5. Paul N. Niemeyer (Niemeyer)

6. Francis S. Brocato (Brocato)

7. Louis G. Close (Close)

8. Pittman

9. I. John Ritterpusch (Ritterpusch)

-B-

10. Milton R. Smith, Jr. (Smith)

ll. Hamilton R. Fox, Jr. (Fox)

12. Ernest M. Thompson (Thompson)

13. Ann McK. Turnbull (Turnbull)

14. George A. Brugger (Brugger)

15. David A. McNamee (McNamee)

16. Daniel W. Moylan, Esquire (sic) (Moylan)

17. F. Duncan Cornell (Cornell)

18. Ronald M. Naditch (Naditch)

19. Charles A. Reese (Reese)

20. Ralph E. Deitz (Deitz)

21. Herbert L. Belgrad (Belgrad)

22. Henry L. Rocklin (Rocklin)

23. Honorable James A. Perrott (Perrott)

The request for summonses and subpoenae duces tecum

was ostensibly to support Respondent's aforesaid "Motions" at

an evidentiary hearing Respondent requested. On May 2, 1979,

the AGC moved to strike these Motions (or not receive them) or

44

in the alternative, to answer them; Pittman moved to “quash

45

subpoena Duces Tecum and/or for Protective Order"; the AGC moved

for Protective Order with regard to the summonses and subpoena

45A 46

Duces Tecum; Frost moved to quash the process as to him; and

47 48

the AGC moved to quash the process issued to Solter and it.

After full hearing, this court quashed the process dealing with

budget of “the Pittman staff" and Ashman (Respondent agreeing

but denied that his testimony would be duplicative) but denied

49

Bar Counsel's other Motions.

-9-

Thus, after full seeunent;”” this court ruled in

Respondent's favor to permit him to offer evidence in support

of his thirty-one (now thirty-two) Motions. However, this court

also stated that while Respondent should have full opportunity

to prove his accusations, this was not to be equated with a

favorable ruling on his adie This court's reservation was

based upon AGC v. McBurney, 282 Md. 114 (1978) which analogized

disciplinary procedure with a Grand Jury presentment and Bartram

v. State, 280 Md. 616, 628 (1977) which illustrated that

criminal charges were not to be dismissed even when Grand Jury

presentmsats emanetes from grand jurors who were seemingly

eines. As a matter of fact, this court's reservation was

fortified by the case of AGC v. Stewart, 285 Md. 251 (1979) which

was published on the last day of voluminous hearings on Respon-

dent's thirty-two Matic Stewart held that a lawyer charged

with misconduct is not entitled, at any stage of disciplinary

proceedings, to all of the consti/ "$a ?B4hards accorded an

accused in a criminal proceeding. “Such a lawyer is entitled to

the basic elements of due process -- notice and an opportunity

to defend in a full and fair hearing.” Id at 259 - There-

fore, contentions of denial of due process in Inquiry Panel and

Review Board proceedings were held to be without merit in Stewart.

Stewart would seem to be dispositive of Respondent's

similar contentions. However, even if it were not, Respondent

in no way proved his contentions. He charged, for instance,

that all Inquiry Panels were set up by bar association officials

acting with religious prejudice and yet his “proof” showed just

the opposite.

A. 34

-10-

He produced Theodore S. Miller, the President (and

formerly Vice President)of the Bar Association of Baltimore City

(Miller) who testified that pursuant to MR-BVS, he actively

participated in selection of members of an "inquiry committee

or Inquiry Panel” (T. May 29, 1979 at 138); that the local

Bar Association makes recommendations to the AGC as to who

should @rve on the Inquiry Panel (id.at 140) and that there were

forty recommended names by the Baltimore City Bar Association

(id,at 143). He remembered "very distinctly” the process of

selection (which had existed for years -- including the year

in which Respondent appeared before such Inquiry Panel) (id.

at 144) and described it as follows: the officers of the

Baltimore City Bar Association met i. was of the same

religion as Respondent -- Nathan Patz, Esq., id, at 145 and 147)

to have a "broad based, diversified group of attorneys” (id,

at 147) “who came from various backgrounds and that was a

deliberate and calculated attitude by our attorneys to insure

that all segments of the Bar were represented and that has

always been the procedure” (id.at 147-148). At Respondent's

insistence (to show a “practice” --id. at 152). Miller pointed

out that the list contained solo practitioners (id, at 154-159),

some small firm practitioners (including Stanley Sollins “who

I know resigned to become Chairman of the Baltimore Jewish

Council -- id at 153) as well as attorneys from "large" firms.

Many of the other attorneys were of Respondent's religion

(Edward L. Putzel, Esq., Abraham L. Adler, Esq., Paul Weinstein,

Esq., Jacob Matz, Esq., id, at 155-156). Miller, who himself

is of the same religion as Respondent (id, at 164 and 597)

A. 35

-ll-

testified that the following procedure had existed for years.

"We really, painstakingly attempted to

make sure that there was a representative,

across the board group and that we submitted."

T. May 29, 1979 at 161

",..we attempted to have some women on

the names we submitted, some blacks,

there was no percentage or anything of

that sort. It wasn't trying to have

5% women and 5% blacks, and 20% jewish

or anything of that sort...what we did

try to do was to see to it that it was

a balanced, across the board kind of

representation. We were concerned, or

at least I was, in particular, that there

would be small office lawyers."

T. May 29, 1979 at 162

"I consciously injected into it the fact

that there ought to be jewish represen-

tation both from large offices and small

offices."

T. May 29, 1979 at 164

Respondent produced Gircerich who testified that when

a vacancy existed on the Review Board, the Board of Governors

(of the Maryland State Bar Association) was requested to make

recommendations of well-qualified persons (T. May 29, 1979 at

39) and the Board of Governors contained attorneys from "very

small firms or solo practitioners" as well as from “large law

e4

firms" (id. at 42).

Respondent produced Solter, Chairman of the AGC, who

testified as to the composition of the AGC as follows:

1. “Beckett” - in a firm of over two (id. at 47)

2. Walter Black - in a firm of ten or twelve (id. at 50)

3. “Mr. Cromwell”

4. Mr. France - in a firm of under ten (id. at 50, 51)

5. R. Taylor McLean - in a Towson firm (id. at 51)

6. "Mr. Smithhurst" - in a firm of less than ten

(id. at 51)

7. Mr. Walsh -

He produced (or summoned) the following Inquiry Panel

and Review Board witnesses:

l. Herbert J. Belgrad - Jewish (T. June l, 1979 at

19) - in a firm of thirteen attorneys (id. at 19).

Mr. Belgrad was Vice Chairman of the Inquiry Panel

ee ak

4.

S.

-12

for three years and a member of the Review Board

for one year (id at 19).

Francis S. Brocato - Solo practitioner (T. May

29, 1979 at 220) Member Inquiry Panel (at time

he heard Respondent's matters, he was in a two

man firm).

Louis Close, Jr. = Inquiry Panel (id at 210)

Ralph E. Deitz - Review Board (id, at 113)

54A

Hamilton Fox - Review Board (T. May 28, 1979 at

97); solo practitioner (id at 110); in response

to Respondent's question was he prejudiced "against

anybody" (id at 114), he replied:

"A. Well, I hope not. Certainly not against

sauketaieaania. I have a jewish daughter-

in-law...

Q. You were aware in your mind, that I am

jewish. Is that correct?...

A. Because you made me aware of it by your

allegations in this case... I don't know

that I was aware you were jewish before

that..." (id at 115-116).

Daniel W. Moylan - Review Board (‘!. May 28, 1979

at 64); in a four person law firm (id at 65),

christian religion; not aware of Respondent's

religion at the time Respondent's matter was

before the Review Board (id at 82); "I felt

consciously able to identify with a practitioner

from a small firm or solo practitioner very

A. 37

well, because I was a member of a small firm"

(id at 84).

7. Paul Niemeyer - Chairman Inquiry Panel (T. May

29, 1979 at 201); Piper and Marbury - total

lawyers “in the eightyish range” (id at 201).

8. I. John Ritterpusch - In a four lawyer firm;

Chairman of the Inquiry Committee (id at 118).

9. Ernest M. Thompson - Review Board; when so

selected was a member of a three lawyer law firm,

one of whom was his wife (T. May 28, 1979 at 121).

Based on Stewart and based on lack of proof and based

on irrelevance and/or immateriality (even if there were proof),

the due process attack fails. It must be remembered that it is

not necessary that every Inquiry Panel and every Review Board

be representative of all economic, social, religious, racial and

political groups of the legal community. What is necessary is a

method reasonably designed to produce a representative cross

section without any systematic and intentional exclusion of any

group. Compare Wilkins v. State, 16 Md. App. 587 (1973).

[jury selection ]. And see Earp, Fair Representation vs.S stematic

Exclusion, Law Forum, Univ. of Balto. ,Spr., ,VOl.

Likewise, the equal protection attack (that the AGC

failed to discipline "silk-stocking" establishment attorneys)

must fail also based on the persuasive analogy of the cases cited

at the June l, 1979 hearing. (Drews v. State, 236 Md. 349, 354

(1964) (contention “that the failure of the State to prosecute

others for the same or similar offenses is a denial of due process

or equal protection is without merit...Guilt or innocence cannot

be made to depend on the question of whether other parties have

been prosecuted for similar acts." See also In Re Kinlein, 15 Md.

App. 625, 645 (1972)]. For the above reasons, the thirty-two Motion

55

were denied on June l, 1979.

7. Subpoenae Duces Tecum

(Calvert Ross Bregel, Esq., Ann McKenrick Turnbull, Esq.,

Robert L. Weinberg, Esq.; Eli Frank, Jr., Esq. and William R.

Dorsey,III, Esq.).

Respondent also intended to prove that his fees were

A. 38

olde

not excessive by seeking to compare them with fees charged by

other attornevs in the Baltimore area. Thus he issued subpoenae

56

Duces Tecum to the above attorneys which process was met

57 58

by Motions to Quash and Protect.

However, on June 15, 1979, Bar Counsel noting on-

the-record discussion on June 13, 1979, withdrew the following

charges:

Malcomb

Paragreph 22 of the TT a - allegation of violation

of DR-2-106(A) [clearly excessive fee] and DR-6-101(A) (3)

{neglect a legal matter entrusted to him].

Jarvis

Paragraph 1l re payment of one-half of a medical bill

and Paragraph 15 - allegations of violation of DR 2-106 (A)

and DR 6-101(A) (2) and (3). As mentioned, however, all of the

Jarvis charges were withdrawn on June 19, 1979."

Draper

Paragraph 16 - violation of DR 2-106(A) [clearly

excessive fee] and DR 6-101 (A) (3) [neglect a legal matter

entrusted to him).

fee

Inasmuch as there remained no excessive/charges

were 61

against Respondent,the aforesaid subpoenae Duces Tecum/cuashed.

8. Motion for Summary Judgment

On April 24, 1979, Respondent moved for Summary

62

Judgment and "refers, and incorporates by reference the

deposition of the Respondent which was taken on April 18 and

63 64

19, 1979, and is made a part hereof.” After full hearing

and consideration of Respondent's deposition, Bar Counsel's

A. 39

-15-

€5

answer and affidavits, the Motion was denied.

9. “Motion to Disqualify Judge Levin"

a. First Motion

On May 23, 1979, Respondent filed three motions to

disqualify the undersigned.

The first stated that "The father-in-law of Judge

Levin, Jacob J. Edelman, Esq., is believed by the Respondent to

be a necessary witness in this case and he intends to call him

as a witness in this me When the court asked Respondent

if he meant a character witness, Respondent said he considered

him “to be a necessary witness, one reasonably perecensy witness

upon one of the important issues in this case." Respondent

later stated that the paramount issue “in this case" is the

“propensity for truth and veracity, for upright dealings for

frankness and for honesty of the Respondent. I will be calling

Councilman Edelman on that icine."

This motion was weed. As a matter of fact,

Respondent never"called” this court's father-in-law as his

witness nor did he ever summon hin.

b. Second Motion

70

The second stated that undersigned made a “misappre-

hended statement” that Respondent communicated to J. McDaniel

that Malcomb (a Respondent client) was a homosexual (and that

undersigned read parts of “the file” which had never been

admitted in evidence and which might well be inadmissible in

evidence.")

Se ee eS Eee ee

A. 40

-16-

In order to understand Respondent, some chronology

is required. When undersigned was assigned this matter by the

Court of Appeals, he undertook to read the entire file wherein

instant charges were transmitted. The developing file also

contained, inter alia, Bar Counsel's Request for Admission of

Facts and Genuineness of Documents which asked Respondent to

admit, inter alia,the genuiness of "(h) Photostatic copy of a

letter consisting of two pages dated July 30, 1976, from you

(Respondent) to ‘Honorable Judge McDaniel’ "and" (j) Photostatic

copy of a letter consisting of two pages dated August 5, 1976

from you (Respondent) to John D. Malcomb.”

In all, there were twenty-three requests for "genuine-

ness” and forty-six requests for "truth" filed as to Malcomb

i The undersigned had read all of these as well as all

other documents in the file before the hearing on May 15, 1979

(demurrer hearing). These documents included, inter alia,

those Exhibits Respondent attached to his Motion to Disqualify

(letter of July 30, 1976 to "Judge McDaniel" from Respondent

and letter of August 5, 1976 from Respondent to Malcomb). As the

pleadings poured in, this court attempted to keep abreast of

all of them together with Exhibits and,as explained to a

this court had an obligation to read pleadings and Exhibits.

If, in fact, some of the reading included material which might

later prove to be inadmissible for some reason or other, a

non-juxy judge is not irremediably tainted. If he explicitly

excludes it from his consideration, he is presumed able to be

impartial nonetheless - unlike a jury. State v. Hutchinson

A. 41

-17-

260 Md. 227, 233-234 (1970). This court felt, and feels,

strongly that it had a duty to read all papers and documents in

the official file botyetiil maintain the ability to disregard

inadmissible material. id.

At the demurrer hearing on May 15, 1979, Respondent

made a prolonged araument, much of which was in the nature of a

“speaking pone” (as he himself ERO Among other

things, he attacked his former client, Malcomb, as a homosexual

who had in his effects homosexual eisai.” While this

derogatory attack was obviously improper demurrer argument, it

brought to the court's perception Respondent's same genus of

statement about his client as contained in his letters to

"Judge McDaniel” (July 30, 1976) and Malcomb (August 5, 1976).

In the July 30, 1976 letter to the judge, Respondent

said. he understands Malcomb indicated his considerable chagrin at

the delay -- whereupon Respondent's comment is "too bad" --

and Respondent then told the judge that "Mr. Malcomb, whom I

suspect may have had a considerable number of derogatory

things to say about me to the court, has his own highly personal

reason for wishing to have this Order signed in haste and

which I do not wish to discuss further" (part of the underlining

supplied).

In his August 5, 1976, letter to Malcomb, Respondent

spelled out his implicit message about Malcomb to the judge

stating "I refrained from going into further detail with “udge

McDaniel, but will not refrain from goim into further detail

77

with you."

A. 42

-18-

then

He/referred heavily to “homosexual activity” and "gay pornographic

photographs" stating that “they were deeply consequential"

(to Respondent). He warned Malcomb “not to write any further

neurotic letters to the judge, unless you wish to endanger your

78

award of custody which has been made to you" (Judge H. Kemp

79

McDaniel was the presiding judge in the Malcomb custody case).

Because Respondent's derogatory demurrer argument

concerning homosexuality and homosexual literature ("Now remember

this is a case which was won under the worst of odds; a homo-

sexual who had in his effects homosexual ‘aisemety triggered

some recollection of the Respondent's two letters in the file,

this court mentioned that "Because somewhere I have read...

that Mr. Kerpelman wrote a letter to the judge, wrote two

letters, I believe...and in one he said, made mention of Mr.

Malcomb being a homosexual and some other situation about

pornographic literature but I am not permitted to consider

that, am I, for the purpose of the ime

and "I shall not use that in arriving at my

determination, even though I have read

that in the past, in certain pleadings

and even though Mr. Kerpelman has

argued today about pornography and

Sleeping or taking a shower with a female

child and homosexuality by Mr. Malcomb

but I do not believe I could consider 82

those matters at all." (emphasis supplied)

Respondent than objected that he had not written to

the judge that Malcomb was a homosexual and while, at first,

this court thought he had, it developed that Respondent's

A. 43

-19-

explicit reference to homosexuality was not contained in the

‘July 30, 1976 letter to the judge. This court stated again,

"But in any event, in none of that have I considered with respect

to the ileieae” and "The court didn't consider it. The

court specifically said that it was not diikene

It was felt then and it is felt now that the reference

to Malcomb's homosexuality was something improperly intruded

into the demurrer argument by Respondent himself and if he had

not done so, there never would have been any reference to it by

this court. In fact, this court specifically stated that

neither Respondent's improper argument nor his two letters would

in any way be considered in any ruling. This court was glad to

know that Respondent had not specifically written the judge about

Malcomb's homosexuality but any initial "misapprehension" did a

not, and does not, show bias. Hence his second motion was denied.

c. Third Motion

86

Respondent was fully heard as to this motion

but it was found to be without merit for the reasons stated on

May 23, 1999. These reasons are still found to be completely

tenable.

ISSUES

The issues presented for determination are as follows:

Draper

1. Did Respondent agree that his representation of

Draper would cost “about $1,000.00" at a time when Respondent

intended to charge more based on certain factors including a

successful result?

A. 44

-20-

2. Did Respondent violate any Disciplinary Rules

by advising Draper to retrieve (meaning illegally child snatch)

the child from Syracuse, New York in flat violation of a

modified court decree awarding custody of the child to Draper's

former wife (mother of the child)?

3. Did Respondent violate DR 1-102(A) (S) by his

alleged conduct in 1 above?

4. Did Respondent violate said latter Disciplinary

Rule by his alleged conduct in 2 above.

5. Did Respondent violate DR 1-102¢a) (6) by

his alleged conduct in 1 above?

6. Did Respondent violate said latter Disciplinary

Rule by his alleged conduct in 2 above?

7. Did Respondent violate DR 2-110a) (2) by

allegedly refusing to deliver to Draper, the decree of modifi-

cation (or copy) of March 23, 1977 (awarding custody to Draper -

the result sought by Draper and objective in his hiring Respondent)

after the modification hearing and after Draper discharged

Respondent? Did he further violate said Disciplinary Rule by

not avoiding foreseeable prejudice to Draper before he withdrew

his representation of Draper and by doing nothing for Draper in

the face of danger of additional litigation?

8. Did Respondent not violate DR Par as

by lack of adequate preparation, in that he never conducted

discovery, never interviewed any witnesses nor had in person

interviews with Draper?

A. 45

@2le-

9. Did Respondent not violate DR 7-102(A) ager

“cn by his alleged conduct in 2 above?

Malcomb

1. Did Respondent violate any Disciplinary Rules by

making an agreement with Malcomb that his representation of

Malcomb would cost One Thousand Dollars ($1,000.00) and yet

intended, at the time of the agreement, to charce an additional

fee based on certain factors, including a successful result?

2. Did he further violate any Disciplinary Rule

by allegedly misrepresenting to Malcomb that his case was not

yet resolved in the judge's mind until the August 9, 1976 decree

was signed and that he was working on the case, when in fact,

the judge's ruling was on July 20, 1976 (and the only matter

remaining was the drafting and approval of the Order) and

Respondent was not working on the case at all but rather trying

to give the appearance of work in order to exact an improper

fee from Malcomb.

3. Did Respondent violate any Disciplinary Rule by

furthering a fraud on the court in not advising the court that

the Malcomb decree was based on a fraudulent decree, i.e., a

backdated separation agreement?

4. Did Respondent violate DR cade by his

alleged conduct in paragraph l, 2 and 3 above?

5. Did Respondent violate DR wee by maliciously

escalating his fee to Malcomb and attempting to obtain improperly

an improper fee from Malcomb in the absence of any fee agree~

ment by Malcomb and in the absence of any basis therefor and

by using the courts to obtain such improper fee?

A. 46

=22<

6. Did Respondent viclate said latter Disciplinary

Rule by his alleged conduct in 2 above?

7. Did Respondent violate DR 2-110(A) (2) a by improperly

withholding Malcomb's papers and the decree after being

discharged by Malcomb? ;

8. Did Respondent violate DR 61010) (2) by lack

of adequate preparation in that he conducted no discovery,

interviewed no witnesses before trial, called witnesses who

were of little or no probative value, failed to call witnesses

who were of probative value and generally displayed no knowledge

of the facts surrounding the Malcomb case?

THE DRAPER CASE

Issue One - Did Respondent agree that his Kepresentatren of

espondent intended to charge more based on certain

actors inc g a successful result

Findings of Fact

Draper, age twenty-six at instant hearing, was married

100

to Marlene Boetker (Marlene) on July 29, 1970. One child,

Jennifer Britton Draper (child) was born of this marriage on

March 19, “wn. On October 15, 1974, Marlene sued Draper for

an absolute divorce on the ground of mutual sensiiaiinnd sendin

custody of the a. Draper admitted all of her allegations.

by his answer (agreeing it was a "non contested divorce case").

On January 7, 1975, Marlene and Draper were divorced absolutely,

A. 47

-23-

Marlene was granted custody of the child, Draper was awarded

"reasonable rights of visitation” and ordered to pay Twenty~-

five Dollars ($25.00) per week child support PN a

Draper felt later that the child was living in an

"unfit environment" and wanted to "change sicinsinrer When

he met Respondent in April, 1976 at a meeting of Fathers United

for Equal Rights (FUER), he asked Respondent how much Respondent

would need "for the case” and he says he was told “about $1,000.00"

by Respondent (court costs would be ja Draper asked Respon-

dent "...is that good? You know, is that what I can count on?

And he said yes." T. June 18, 1979 at 170. According to Draper,

Respondent also told him he (Respondent) would need a Five Hundred

Dollar ($500.00) retainer “to start iin: Shortly

thereafter (April 15, 1976), he obtained a Five Hundred Dollar

($500.00) Money —" and sent "your retainer of $500.00"

to Respondent together with the original of the Decree on approxi-

mately April 16, 2%. On May 14, 1976, Respondent filed a

petition on behalf of Draper, to modify the custody part of the

EI Respondent specifically signed his (Respondent's) name

to the petition which, inter alia, stated that the Decree (sought

to be modified) “awarded custody of the minor child...to

112

[Marlene] ."

In the latter part of 1976, Draper received a bill

from Respondent (dated July 28, 1976) stat-ng “BALANCE NOW DUE”

113

$460.00 to which he responded by purchasing a Money Order

114

for Four Hundred Sixty Dollars ($460.00) on September 7, 1976.

He and Respondent had "set up a date” because Draper wanted to

A. 48

-24-

discuss the case with Respondent and so Draper w.u:nt personals:

to Respondent's office. When Draper got there, Respondent

115

“wasn't there so I paid his secretary the money.” At Draper's

request, Respondent's secretary gave Draper a receipt which

116

stated, inter alia, “Balance Paid” (he asked "to make sure

117

everything was paid and that I had proof of it”).

In August, 1976, Draper heard that Marlene had moved

out of Maryland and that the child was living in a “bad environ-

on August 21, 1976

ment." He went to Syracuse, New York/(where the child and

estranged

Marlene resided) with Marlene's/ husband and two male friends

118

and "we rushed in and obtained my child.” This retrieval

119

was in flat violation of the Decree. On September 3,1976,

Respondent, on behalf of Draper, filed a "petition for immediate

hearing" asserting that Marlene was living with a “boy friend”

charged with rape and breaking and entering "who beat the child”

and asked for an immediate hearing (for change of temporary

custody) because “this is an emergency eiadatie FT Although

Draper swore to these “facts” on August 31, 1976, by way of

attached Affidavit, neither he nor Respondent informed the court

of the illegal child Oa ny Marlene filed a

petition for contempt on September 30, 1976, asserting that she

had moved to New York to "avoid continued harassment” by Draper

and that he “broke into her apartment in Syracuse, New York and

121

assaulted her and snatched the child out of her bed.” On

A. 49

-25-

March 23, 1977, after hearing, the Decree was modified by granting

122

custody of the child to Draper (Beardmore, J.). - The next

day Respondent billed Draper Eight Hundred Fifty Dollars ($850.00)

for “additional final fee based on fully successful conclusion of

123

case” whereupon Draper wrote Respondent a letter of outrage

informing Respondent he did not "intend to pay a cent” and was

124

"taking this matter to the American Bar Association.”

In April, 1977, Draper wrote Respondent discharging

125

him as Draper's attorney. [The Court of Special Appeals meanwhile

reversed, Draper v. Draper, 39 Md. App. 73 (1978), and on remand,

Marlene was granted custody of the child by subsequent decree

126

of April 14, 1978 (Williams, Zedeol On June 6, 1977, Draper

127

filed complaint with the Attorney Grievance Commission.

The sole dispute is whether Respondent told Draper

that the (about) One Thousand Dollars ($1,000.00) was a "flat

at or whether it was a retainer. Respondent contended he

had a retainer arrangement and that there never was a "flat

fee basis." He testified that custody cases are unpredictable

and that he rarely represented custody cases on a flat (or

128A 129 130

"set”) fee basis. He argued that when his secretary

gave Draper a receipt marked "Balance Paid", she was “newly

hired, had not been authorized to determine when any fee was

131

paid in full and had never before given a receipt to a client.”

A. 50

o26<

He referred to his “temporary note" which purport€l to show

"Retainer fee $950, $500 diel” ee bill of June 23, 1976

which purportedto be a bill from him to Draper indicating a

"Retainer Fee” of “eo.

His theory was that there was an"implied contract”

between himself and Draper and ae was proper (under a

"DR Rule” which he did not number) to charge the additional

132

fee "based on the successful result - that he obtained custody.”

At other times, Respondent believed he had a “verbal incr

as to fees.

Draper denied receiving the June 23, 1976 bill from

as and when Draper testified at instant hearing,

Respondent did not cross examine him about it. When Draper

wrote his letter of outrage to Respondent, he specifically

informed Respondent that he had paid Respondent a total of

"$960.00 which you quoted to me. The total which you want would

bring the amount to $1,810.00 which is double and not what was

told to me." He told Respondent he “had great trust and

respect for you...but I am very imide Respondent

responded to the letter of outrage by his (Respondent's) letter

of April 25, 1977 to Draper which expressed surprise that

Draper would question the additional Eight Hundred Fifty Dollar

($850.00) bill and Respondent was “rather offended" at Draper's sug

gestion of “overcharging.” Yet Respondent nowhere mentioned the

June 23, 1976 bill (which would have cleared up the matter, it

A. 51

@27<

would seem).

In addition, Respondent's notion of an “implied”

contract leaves much to be desired. As an attorney with thirty

years EO -ing dealing with a(high school educated) wa,"

the client was at Respondent's mercy. He furnished his client

with no guidelines as to what future fees would be and the

"additional" Eight Hundred Fifty Dollar ($850.00) bill was devised

solely by Respondent. At no time did Respondent discuss the

additional fee with his client before he sent it for payment.

A short and simple letter to Draper setting out the fee agreement

alleged by Respondent would have obviated any misunderstanding.

Respondent's failure to obsezve the plain common sense of Ethical

Consideration 2-19 left much to be desired as has been a

Conclusion of Law

Despite all of the highly suspicious circumstances, I

cannot find by clear and convincing evidence that Respondent

intended to improperly charge a fee to Draper in violation of

their fee "agreement." Respondent is entitled to the presumption

that Draper received the June 23, 1976 bill and Draper's denial

138

of receipt (by way of answer to interrogatories) is simply not

sufficient to overcome the finding that Respondent sent it and

Draper received it. If Draper received it, he was on clear notice

that the payment of Nine Hundred Sixty Dollars ($960.00) was

a retainer and not a “flat fee.”

A. 52

=28-

Issue Two - Did Respondent violate DR 2-110(A) (2) by allegedly

refusing to deliver to Draper, the decree of modifi-

Cation tor copy) of March =F 15

17 (awarding custod

to raper =~ the result soug t y Draper anda oO jective

n nls ring Kespon ent) after the modi ication ear-

ing and after Draper scnarge

espondent? Did

e further violate sa sc nary Rule by not

avoiding foreseeable prejudice to Draper before he

withdrew 3S representation of Draper and by doin

nothing for Draper in the face Of Nancer of additional

litigation?

Findings of Fact

Draper discharged Respondent as his attorney in April,

139

1977. On May 13, 1977, Marlene's attorney wrote Respondent

140

concerning certain visitation problems. Respondent then wrote

Draper, on May 23, 1977, telling Draper to give the matter his

earliest attention (he also said he didn't wish to become

involved "in any further services upon your behalf" because

Draper refused to pay the “reasonable final fee bili"). At

all of these times, Respondent did nothing on behalf of Draper.

Respondent then filed a form . "Motion to Strike Appearance” ©

on June 2, 1977 and on June 20, 1977, leave was so ia

Previously, Draper asked Respondent for a copy of the

"Decree" (meaning the Decree of Modification whereby the court

awarded custody of the child to wee Obviously Draper needed

the Decree to prove the legal validity of his custody. Respon-

dent refused stating he would obtain it when the “outstanding”

bill was rr He asserted an "attornev's on,

Conclusion of Law

Despite Bar Counsel's contention that Respondent

violated DR 2-110(A) (2) [because the fee was outside the scope

A. 53

-29-

of their agreement" and hence the attorney's lien was an

“improper assertion"], I do not conclude that Respondent did so

violate it. When Respondent received the letter from Marlene's

attorney, he promptly wrote a letter of alert to Draper. As

to the attorney's lien, it is recognized in Maryland, AGC v.

McIntire 286 Md. 87, (1979) as a "passive lien on the papers,

securities and money belonging to a client coming into the

lawyer's possession.” The Court of Appeals in Ashman v. Schecter,

196 Md. 168, 173 (1950) also mentions "all papers, securities

and money" referring to them as "such things." While the

Disciplinary Rules state that the attorney shall "deliver to

the client all papers” (emphasis supplied), the appellate

decisions also state the right of an attorney to retain all

papers, id. at 173. If the purpose of the lien is to protect

an attorney from non-paying clients, then it cannot be said

that Respondent improperly asserted the attorney's lien.

If I cannot conclude by clear and convincing evidence

that Respondent charged an improper fee, then I cannot conclude

by clear and convincing evidence that Respondent improperly

retained the Decree.

Issue Three - Did Respondent not violate DR-6-101(A) (2) by lack

of adequate preparation, in that he never conducted

discovery, never interviewed any witnesses nor

had in person interviews?

Findings of Fact

All of the findings of fact set out at 22-27 and 28

infra are incorporated in instant findings of fact.

A. 54

-30-

The face to face contacts between Respondent and Draper

were as follows:

a. Brief discussion at FUER meeting in April of 1976

147

dealing with fee.

b. Twenty minutes on November 18, 1976 when a "merits"

148

hearing on the modification petition was to take place. It

149

never took place.

c. Hearing on modification petition on March 23,

1977.

Other than these, most of Respondent's contacts with

150 151

Draper were by telephone calls to his staff and letters.

There was only one adversary hearing in the Draper

case, that on March 23, 1977 - the matter of Draper's modification

152

petition (when Draper was absolutely divorced, he was not

153

represented by Respondent but by Stanley Sollins, Esq.). After

Draper was cited for contempt when he "violated a court order by

grabbing the child in New -_* there is no record of any

hearing on the specific issue of contempt (nor was Draper ever

found guilty of a

Respondent produced two witnesses at this March 23,

1977 hearing: Draper and one Bertha Tawney. As to Bertha Tawney,

156

Respondent did not interview her before he put her on the stand.

157

Respondent feels that “personal interviews are not necessary”

158

(of witnesses before trial) nor did he conduct any in the Draper

case. He conducted no discovery either, that is, he filed no

interrogatories, notices for production, etc., requests for

159

admission, nor conducted any depositions.

A. 55

-3l-

The custody report of Judith Finn (a social worker of

the Anne Arundel County Department of Social Services) was received

in Draper's case. It recommended that Draper receive custody of

the child and the trial court, relying heavily on her report,

awarded custody of the child to Draper. The trial court would

not allow Marlene's attorney to cross examine Ms. Finn during

Marlene's case but, on appeal, the Court of Special Appeals

stated that "a court appointed investigator in a custody case

occupies the position of an officer of the court and at the

request of either party, may be called as the court's witness,

subject to cross examination by both parties." Draper v. Draper,

39 Md. App. 73, 81 (1978) [the trial court was reversed on a

different ground]. After hearing, the court decreed custody to

Marlene on April 14, 1978 and there was no appeal nor have there

160

been any proceedings since then.

While Respondent's representation of Draper is surely

not a paradigm of competence or adequacy, this court cannot find

» by clear and convincing evidence that he handled the Draper

matter "without preparation adequate in the circumstances."

His failure to interview personally Bertha Tawney,

for example, was of obvious detriment to his client because

Respondent was forced to claim “surprise” after her first sub-

~¢l

stantive answer. If he had interviewed her (or taken her

A. 56

@320

deposition), he would have known, at the outset, that she was not

present at time felt to be significant by eeiaes.

Actually, the “surprise” rule was not applicable because Respon-

dent had never even talked to his witness (he only had talked

to Draper). The refusal of an attorney to personally interview

a witness can logically lead to problems (sometimes severe)

because the attorney is left to rely only upon the biased version

furnished by his client - a version that may not be true nor

accurate. That is precisely what happened with Bertha Tawney

because when Respondent claimed surprise, the trial court asked

"This is a different story than what you were previously told?”

and Respondent was obliged to reply "By my client, yes" (emphasis

iain {Respondent wanted to show that when Marlene came

to the house with a policeman, the child ran to Draper. When

Bertha Tawney said she was not present at that particular time,

Respondent was forced to desist from further questioning. (He

never produced the policeman as a witness either) .])

In addition, the failure to know what your witness

will say in testimony can waste everybody's time: the court's,

the witnesses, the attorneys and the parties. It is to be noted

that Respondent understood the value of discovery as

when he remonstrated with an opposing lawyer (Eidleman) in the

Draper hearing ("If you spent a little more time on interroga-

164

tories and more preparation, you might be..."). Respondent asserts

A. 57

-33-

that in custody cases "You don't know how many witnesses the

other side is going to produce in a domestic case and particularly

in a custody case. You don't know what the facts are going to

be, you don't know how they are going to expand by the time the

case comes ie However, if he had filed interrogatories, he

would have known how many witnesses and what the facts would be;

if he had interviewed or deposed witnesses, he could prevent them

from "expanding." Respondent himself makes out a persuasive

case of his own inadequacy.

Nor is Respondent's assertions that he “won the case"

convincing. The essence of the trial court's decision to award

Draper custody was based upon the social worker's report ["The

court relies heavily on the report of Judith Fimand the Depart-

ment of Social Services,” Draper v. Draper, 39 Md. App. 73,

(1978)]. One might say that the report won the case for Draper.

No matter what was responsible for the “win,” it was short-lived

in any event because Draper no longer has custody (the trial court

was reversed and the child is now in the custody of her mother).

Conclusions of Law

However, this court cannot find by clear and convincing

evidence that Respondent's representation was so inadequate as to

conclude that he violated DR 6-101(2). While Respondent's failure

to utilize obvious tools was probably dictated by his desire to

avoid costs (he claims he would have to pass on such costs to his

A. 58

-34-

166

clients) the line between trial tactics and adequacy of prepara-

ration can sometimes be blurred. Experts in the field of family

law feel that the “first interview” is of tremendous significance.

They advise office interviews of a minimum of one to two hours

uninterrupted by any ES...» AO

Contrast that with Respondent's telephone theory

"It is totally unnecessary for human beings to communicate

information one to the other, that they be in the same room and

it has not been so since the invention of the telephone and in

fact far oe” In fact, Respondent is apparently proud of his

lack of office interviews even boasting that some of his clients

"never see nim until the day they go to out.

Respondent's irresponsible boast that some of his

clients never see him until the day of trial can easily backfire

on him. In fact, conduct even less reprehensible may subject an

attorney to malpractice. Compare Bevevino v. Saydjari, 76 F.

R.D. 88, 96 (S. D. N.Y. 1977) [attorney's failure to prepare

defendant's doctor for his deposition prevented him advancine a

valid defense - ceurt suggests malpractice suit to doctor]. On

the other hand, the conscientious attorney must not be required

to spend his (and his client's) money needlessly. Nor should

there be overdiscovery. J. L. Ebersole, Discovery Problems:

Is Help on the Way? 66 A.B.A. J. 50 (Jan., 1980). But note the

word “conscientious” however. This should require, de minimus,

an effort to inform the client and involve him in decisions about

Giscovery. Regular discussion will not just make it harder for

A. 59

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clients to complain later, but will generate sympathy for the

attorney who treats his client as a person in a mutual undertaking

rather than as a child. While a reasoned decision as to whether

to pursue a particular avenue of discovery is within an attorney's

discretion, Identiseal Corp. v. Positive ID Systems, 560 F. 2d

298, 302 (7th Cir. 1977), certainly the total absence of discovery

may well be outside the bounds of discretion. See cenerally

W. Barthold, Negligence in Discovery: No Paper Tiger, Litigation,

vol. 6, Fall 1979 at 39.

It must be noted, however, that Bar Counsel has

specifically dropped the “neglect” violation against Respondent

leaving only the inadequate preparation charge. Since Respondent

knew he had a favorable report from the Department of Social

Services and since he may have anticipated that the judge might

be favorably impressed by the neutral and experienced source, it

cannot be said that he was required to have prepared additionally.

I really cannot conclude by clear and convincing evidence that

Respondent has violated the latter rule under the circumstances.

Moreover,the “inadequacy” Disciplinary Rule nowhere

spells out any guidelines for instruction in this Orwellian field,

Brown, ABA Code of Professional Responsibility: In Defense of

Mediocrity 5 Valparaiso L. R. 95, 99 (1970), and before one may

find punishable inadecuacy, a stronger case must be presented.

Some observers feel attorney conduct must reach proportions of

grossness. 24 Hasting L.J. 675, 693 (1973), while others feel

the standard of care may be more closely akin to negligence.

Zilly, Recent Developments in Legislative Malpractice Litigation

A. 60

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(Litigation, Vol. 6, No. 1, Fall 1979 at 8, 17, 64). The American

Bar Association Committee on Ethics and Professional Responsibility

declined to give meaningful responses to various questions that could

have provided a more workable definition. The “inadequacy”

Disciplinary Rule” is vague and general. Canon Six's Ethical

Considerations nowhere enlightens us as to the meaning of “inadequacy.

No mention is made of duties of investigation and preparation,

conferring with the client “early and stem, frequently advising

him ascertaining and developing strategies, filing appropriate

motions (to produce, to request admission of genuineness and

authenticity), the duty to personally interview clients and witnesses

and the duty to file interrogatories and when necessary, take

depositions. One wants to raise the competency of attorneys to

at least a minimum level but one also worries about the lack of

specificity of the inadequacy Disciplinary Rules. See generally

Morgan, The Evolving Concept of Professional Responsibility, 90

Harv. L. Rev. 702 (1977).

In sum, while Respondent's representation was spotty

and somewhat deficient, this court cannot find by clear and

convincing evidence that Respondent handled the Draper case

without preparation adequate in the circumstances.

Issue Four: Did Respondent violate any Disciplina Rule b

advising Draper to retrieve (meanining ille ail

child snatch) the child from Syracuse, New York

in flat violation of an unmodified court decree

awarding custody of the child to Draper's former

wife (mother of the c

Findings of Fact

The Decree of January 7, 1975 unequivocally granted

Marlene custody of the child with reasonable visitation rights

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171

to Draper. From January 7, 1975 to August 21, 1976, there was

no modification of the Decree. Draper met Respondent in April,

1976 and retained him to "change custody” because he felt the

child was living in an “unfit environment.” y Draper paid

Respondent his fee, Respondent filed a petition for modification

on Draper's behalf on May 14, 1976, ask.ng that Draper be awarded

custody. a 17, 1976, the court, per the clerk, issued an

Equity Subpoena: to Marlene at 139 Rigi Avenue, Syracuse, New

York 13206 (to answer or defend) .

In early August, 1976, Draper was told by his former

mother-in-law that Marlene had moved out of the state and that

she was living with a criminal. Draper twice consulted with

Respondent on the telephone in early August, 1976 asking him if

"something could be done about this." Respondent suggested that

Draper get the child "but not to say anything to anybody about

it, because it was not the procedure of attorneys.” Respondent

told Draper that when he went, “not to make it a breaking and

entering charge type of thing but to try to get in without

breaking the door down, and, you know, just get my child.”

Respondent also told Draper that if he (Draper) were successful

"we might get a faster response from the court” and that it

might show "good concern on my eaaas On August 21, 1976,

Marlene was living with the child in Syracuse, New York (and a

man named Jerry Cushman - later convicted of breaking and

A. 62

176 i ag

entering).

On that date, Draper went to Syracuse, New York with

the estranged husband of Marlene (Gary Boetker) and two other

males ("case her boyfriend gave us some trouble!) ana “we

rushed in and obtained my child" (from her bedroom).

On September 3, 1976, Respondent filed, on Draper's

behalf, a petition for immediate hearing asking for a change of

temporary custody "because this is an emergency situation."*

He mailed it to Marlene on August 31, 1976 just ten days after

the child snatch. The upper left of the petition indicates it

was typed three days after the child snatch (August 24, 1976).

Neither Respondent nor Draper advised the court of the physical

seizure of the child. On September 30, 1976, Marlene petitioned

to hold Draper in sini.” cat on the same date, the court

(Wray, J.) ordered Draper to return custody of the child to

Marlene pending litigation of the matter of mstttlessien.

On March 23, 1977 after hearing, the trial court awarded custody

of the child to Draper (Beardmore, 3.93 his decree was reversed

by the Court of Special Appeals, Draper v. Draper, 39 Md. App.

73 (1978); and on April 14, 1978, the trial court (Williams,J.)

awarded custody of the child to Marlene with reasonable rights

of visitation to Draper. The matter thus came full circle.

I find as a fact that on May 14, 1976, Respondent

knew of the Decree. Aside from the fact that Draper sent it to

184

him in April, 1976 when he paid Respondent his fee, the petition

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for modification prepared, drawn and filed by Respondent,

"moves that this court modify its Decree concerning child custody”

says the parties were divorced by “Decree...dated January 7,

1975" and prays the court to modify "its" make’ Although

Respondent seemingly denied seeing the decree till he gave his

deposition (in the instant case in 1979), he acknowledged that

"this was besides the point, because my notes show that the wife

had custody” and “that would sort of indicate that Mr. Draper

would very well have given me those papers, but at any rate, I

was accurate that Mr. Draper's wife had custody.” -_

I find as a fact that in August, 1976, Respondent did

suggest to his client, in flat violation of the Decree, that he

(Draper) physically take the child from the Syracuse residence

where she was living with her mother; that it was Respondent's,

and not preen*e auppectiens that Respondent told Draper to not

make it look like a breaking and entering but just to get the

child; that if it was successful, “we" might get a faster

response from the court and it would show good concern on Draper's

part; and that Respondent told Draper not to say anything to

anybody about it. I find further that the idea of

taking Gary Boetker and the two men was Draper's,not Respondent's

(but that Draper's idea emanated directly from Respondent's

suggestion that Draper not break in. Thus Draper took Marlene's

estranged husband to trick her into opening the door).

A. 64

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At first, Respondent denied that he had advised

Draper between April, 1976 and August 21, 1976 that he should

"retrieve" the child then in Marlene's custody as per the Decree

{(i) “False. The Respondent does not remember using any such

189

quoted imprecation to Mr. Draper..."]. However, he later shifted

ground, admitting he had used the word “retrieve.”

I find as a fact that Respondent testified before the

190

Inquiry Panel on January 28, 1978 as follows:

1. "...when you have performed a child

snatch, as any number of my clients,

on my advice, have done..." 191

2. "...Now we had that hearing and then --

oh, before that I had planned carefully

with Mr. Draper just how he was to

retrieve the child. Well, first of all,

whether to retrieve the child and the

answer to that was clear. And we planned

how to retrieve the child.” 192

3. "I think I did more than he realizes.

There was the pre-planning, there

was the snatch, there was this

first hearing.” 193

Despite the Respondent's protestations that when he

said “retrieve” what he really meant was to legally retrieve, his

testimony is fatuous and entirely unconvincing. He testified

that in his view, retrieval means:

"the legal plan, the pleadings that

would be filed, the setting of having

the case brought promptly. before a judge,

also the legal possession that would be

established that Mr. Draper, having a

right to reasonable visitation, which has

been denied him, had a right alsc. This

legal position is what was carefully

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planned on retrieving the child, that is,

retrieving the child back into his court

ordered custody is what I'm talking about.

I'm talking about getting the child

ordered by the court in a decree to be

turned over to the custody of Mr. Draper." 194

He testified further that:

"I was planning with him, and preparing

myself, for the legal position that since

he had the right to reasonable visitation

and since the child was being held with

a promiscuous mother, living in the same

with an alleged felon, that for him to

ask to take the child back from here for

his visitation is one thing he could have

done, that was part of the planning...

Another part of the planning was to try

to get an immediate court order concerning

return of the child.” 195

However, it is clear that a commonsense view of

Respondent's (Inquiry Panel)use of the word "retrieve" is that

he meant to physically take the child. Aside from common sense,

Respondent (himself) invariably uses the word “retrieve” to mean

take:

1. "I'll have to ask the court to bear

with me. I'd been here about ten

minutes early,and at that time

was unable to retrieve my files.” 196

2. "Did I throw them in the waste basket?

Have I retrieved them from the garbage

dump or what?” (Respondent is

the questioner). 197

3. "Q. How were they brushed aside

physicully, you tell us.

"A. You put your hand out and pushed

them aside.

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"Q. Where did I push them to?

"A. It would have been over in

front of me or over towards

the center of the table.

"Q. Did I then use those notes

later in the trial or not?

"A. I don't believe so. You may

have. I don't believe you

used those in the way I'm

talking about.

"Q. Did you retrieve them?

"A. Did I what?

"Q. Retrieve them?

"A. Oh. Thank you. No sir. You

retrieved them. You showed

them in court." (Respondent 198

is the questioner).

4. "He goes and retrieves his child..." 199

5. “Just that at the time the child was

retrieved..." 200

6. "Yesterday evening I went down to my

basement and was able to retrieve

a file." 201

7. In his deposition, he testified that

"Draper has been on the risk to

retrieve the child* from New York"

but "explains" that “it was not

a careful and an accurate use of

the word." 202

His labored and tortured attempts to explain away his

earlier sworn testimony (before the Inguirv Panel) are totally

unconvincing. He refers to a Random House dictionary definition

but must acknowledge that the first definition is “recovered,

regain.” He then twists the word to mean that Draper was trying

Respondent's use of “retrieve” in his everyday use is thus equated

with his use of "retrieve" as concerns Draper's physical taking

("on the risk to retrieve the child") (emphasis supplied).

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retrieve his visitation right. Draper, however, clearly stated

that the purpose of the child snatch was to remove the child from

the bad environment (not visit). (T. June 18, 1979 at 171).

203

If he meant "retrieve" in the sense of obtaining a

valid court order, he does not explain why there was no hearing

before Draper retrieved the child. As to the petition for

immediate hearing, it was filed after the retrieval thus further

negating Respondent's motion of legal recovery. Respondent

speculates that the petition could have been dictated before the

retrieval but here too his p sition is unconvincing. If indeed

his secretary was slow in typing this petition, surely Respondent

would have known when he filed it (September 3, 1976) that the

retrieval had already taken place. Respondent tries to argue

that the petition was sent to Draper for his signature but one

wonders why such a slow process was used if there was such an

emergency. I find as a fact that Respondent knew of the

retrieval (on August 21, 1976) at the time he filed the petition

for immediate hearing (September 3, 1976). If Respondent's legal

theory is correct, why would he not have obtained a signed

court order in Maryland awarding temporary custody to Draper so

that the New York authorities could honor it? In fact, Respon-

dent offered into evidence exactly such an order but it was

never signed by any court because it was never presented to any

court?°4

Respondent's visitation theory is totally unsupportable

and totally unconvincing. A non-custodial parent simply cannot

take three men with him and physically grab a child out of her

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bed because he feels the custodial parent unfit. If he does

so, his visitation rights may be completely denied. See

Friedland v. Friedland, 174 Cal... App. 2d. 874 (1959) [father

told friend “one way or other we will get the child” and had on

several occasions broken into the custodial mother's home --

visitation denied]. Even if visitation rights are not denied

[Anderson v. Martin, 257 S.W. 2d 347 (Tex. Civ. App. 1953)]

reasonable visitation is not to be equated with a bald and

illegal child snatch.

Respondent is obliged to admit that he advised any

number of his clients to perform child snatches, yet he tried

to expiate this admission by saying he only meat legal child

snatches. By legal, he says he means taking your child before

there is a court order. emails however, he made an

"unfortunate choice of words” and he further acknowledges that

he is “not saying that it (child smatch) cannot cover an illegal

one. #°° His explanation is fanciful and absurd. He is hoist

by his own petard.

It is interesting to note that when Draper testified

at the March 23, 1977 hearing as to why he snatched the child,

he testified that he went on Respondent's eaviak?’ Thus Draper's

exact same ve

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