# Appendix — Kerpelman v. Attorney Grievance Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0853%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1981 - **Citation:** 450 U.S. 970 ## Text 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 Be le IEE siisitiintonestcacavinsaeaatmcandion 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 successfu [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0853%3A3. Public record. Not legal advice.