Appendix — Harris v. Attorney Grievance Commission

i. oo H | : Supreme Court, U.S,

87-948 _—

“ao OCT 28 887

SPANIOL, JR.

CLESK.

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1987

ALAN EDGAR HARRIS,

Petitioner,

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MARYLAND

APPENDIX

TO

PETITION FOR A WRIT OF CERTIORARI

Benjamin Lipsitz,

6699 Reisterstown Road,

Suite 182

Baltimore, Maryland 21215,

(301) 358-0717, oe

Attorney for Petitioner

i

TABLE OF CONTENTS

Opinion and Order of the

Court of Appeals of Maryland

Memorandum of Finding of Fact

and Conclusions of Law of the

Circuit Court for Baltimore City

Letter from the clerk of the

Court of Appeals of Maryland,

dated July 38, 1987, advising

date of filing of that court's

Opinion and Order

Letter from the clerk of the

Court of Appeals of Maryland,

dated September 9, 1987, advising

that court's disposition of

motion for reconsdieration

Page

App.

App.

App.

App.

1

32

61

62

App. l

IN THE COURT OF APPEALS OF MARYLAND

Misc. Docket (Subtitle BV)

No. 5l

September Term, 1985

ATTORNEY GRIEVANCE COMMISSION

OF MARYLAND

Ve

ALAN EDGAR HARRIS

Murphy, C.J.

Eldridge

Cole

Rodowsky

Couch

McAuliffe

Adkins,

-

JJ.

Opinion by Couch, J.

Filed: July 30, 1987

* Couch, J., now retired, partici-

pated in the hearing and conference

of this case while an active member

of this Court; after being recalled

pursuant to the Constitution, Art-

icle IV, Section 3A, he also parti-

cipated in the decision and adop-

tion of this opinion.

TT

App. 2

The Attorney Grievance Commission

("Commission"), acting through Bar Counsel,

filed a petition seeking disciplinary

action against the respondent, Alan Edgar

Harris. The petition alleged that Harris

violated certain disciplinary rules in his

representation of three unrelated clients,

Delores Green, Grady Jacks, Sr., and

Anthony Jeter. Pursuant to Maryland Rule

BV 9, we referred the matter to Judge Arrie

W. Davis of the Circuit Court for Baltimore

City. In his memorandum of findings of fact

and conclusions of law, Judge Davis reject-

ed some of the Commission's charges, but

nevertheless concluded that Harris had

violated the following rules of the Code

of Professional Responsibility: DR 1-192(A)

(1), DR 6-101 (A) (3), DR 7-1@1(A) (1) in

his representation of Delores Green; and DR

1-102(A) (1), DR 5-103(B), DR 9-102(B) (3)

in his representation of Grady Jacks,

App. 3

Sr. /l Harris has filed seventeen

exceptions and Bar Counsel has filed one

exception to Judge Davis's memorandum.

Exceptions 16 and 17 involve two motions to

dismiss the disciplinary petition. We

shall first address the motions to dismiss.

Harris's Motions to Dismiss

Exception 16

In the first motion, argued initially

before Judge Davis and now before this

Court, Harris attacks in several respects

proceedings of the Inquiry Panel and the

Review Board. Like the trial court, we

fl The text of the applicable Disci-

plinary Rules is set forth in this opinion.

With respect to the Jeter

complaint, Judge Davis found that there was

no clear and convincing evidence regarding

the charged violations. The Commission has

not excepted to this finding and thus we

Shall not consider the Jeter complaint.

App. 4

reject his arguments. /2

Harris argues initially that Bar Counsel

improperly informed the Inquiry Panel of

prior hearings and warnings issued to

respondent in three other cases, and also

advised the Panel that there was a "pattern

of misconduct" involved. Bar Counsel's

action, however, is specifically sanctioned

by the Attorney Grievance Commission's

Administrative and Procedural Guidelines

("Guidelines"). Section 4-203 states in

part:

/2 Harris argued below that the trial

court had the power to grant his motion to

dismiss and to, in effect, remand the case

to the Review Board for reconsideration of

the charges. Judge Davis rejected this

contention: "This Court ... believes that

it has jurisdiction to consider the bases

set forth in the Motion to Dismiss and make

findings of fact as to the factual bases

set forth in the Motion to Dismiss;

however, within the context of the unique

nature of an Attorney Grievance proceeding,

it is the Court of Appeals which must

determine whether or not the matters

alluded to constitute sufficient grounds to

dismiss the Petition." We agree with this

Statement.

App. 5

"Transmittal of File by Bar Counsel.

Upon the appointment of a Panel, Bar

Counsel shall promptly forward the

file and record to the Panel Chairman

and other Panel members. If Bar Coun-

sel determines that the present com-

plaint or complaints establish a pat-

tern of misconduct similar to past mis-

conduct for which sanctions or warn-

ings have been issued to the Respon-

dent, the file and record shall in-

clude a statement of prior sanctions

imposed on the Respondent and aiso a

Statement of prior warnings issued to

the Respondent. Prior sanctions in-

clude disbarments, suspensio®s and pub-

lic and private reprimands."

We find this contention to be without

merit. /3

We next consider Harris's due process

contentions /4, which we summarize as

/3 To the extent the respondent attacks

section 4-293 of the Guidelines as

violative of due process, our discussion

infra of Maryland State Bar Association v.

Frank, 272 Md. 528, 538, 325 A.2d 718, 723-

24 (1974) and Bar Association of Baltimore

v. Posner, 275 Md. 250, 255, 339 A.2d 657,

659-60, cert. denied, 423 U.S. 1016 (1975),

will suffice to reject tnis contention.

/4 Harris also claims he was denied

equal protection, but he has not explained

his reasons for doing so. See Attorney

Grievance Commission v. Brown, 308 Md. 219,

223, 517 A.2d 111l, 1112 (1986); Attorney

Grievance Commission v. Cockrell, 304 Md.

3’9, 393, 499 A.2d 928, 935 (1985).

App. 6

follows: 1) respondent was denied the

Opportunity to participate in the selection

of the Inquiry Panel hearing the complaints

against him; 2) a single Inquiry Panel

improperly considered four entirely

unrelated complaints against respondent,

depriving him of a “fair and impartial

hearing before an unbiased body, unaffected

by notice or knowledge of any complaint

other than the one it was initially charged

to hear ..."; 3) respondent was precluded

from taking part in Review Board proceed-

ings, including the selection of partici-

pating members; and 4) the Attorney Griev-

ance Commission improperly performed as an

investigative agency, a prosecuting agency,

and a "selecting agency with respect to the

persons who (were) to constitute the

Inquiry Panel and the Review Board...." /5

/5 Respondent does not argue that those

contentions also constitute a violation of

the Attorney Grievance Commission's Adminis-

trative and Procedural Guidelines.

App. 7

Harris's arguments are clearly without

merit. In Attorney Grievance Commission v.

Stewart, 285 Md. 25l, 259, 401 A.2d 1926,

1930, cert. denied, 444 U.S. 845 (1979), we

said that proceedings conducted by the

Inquiry Panel and the Review Board are

Similar to the proceedings conducted by a

grand jury in criminal cases. They are

investigatory in nature - designed to aid

in determining whether disciplinary action

1s warranted - and informal to the extent

that the rules of evidence need not apply.

Id., 401 A.2d at 1930. See, Attorney

Grievance Commission v. Brown, 388 Md. 219,

223, 517 A.2d 11ll, 1113 (1986). Moreover,

any irregularity in the proceedings before

the Inguiry Panel and the Review Board

Ordinarily will not amount to a denial of

due process, as long as the lawyer is given

notice and an opportunity to defend in a

full and fair hearing following the

institution of disciplinary proceedings in

this Court. Maryland State Bar Association

App. 8

v. Frank, 272 Md. 528, 538, 325 A.2d 718,

723-24 (1974); Bar Association of Baltimore

v. Posner, 275 Md.250, 255, 33p A.2d 657,

659-60, cert. denied, 423 U.S. 19016 (1975).

See Stewart, 285 Md. at 259, 481 A.2d at

10830; Brown, 308 Md. at 223, 517 A.2d at

lll.

In the instant case, Harris was afforded

notice and an opportunity to defend ina

full and fair hearing following the

institution of disciplinary proceedings in

cada Court. Accordingly, his various

contentions asserting a denial of due

process in the Inquiry Panel and Review

Board proceedings are without merit.

The reasoning of Stewart also disposes

Ot Harris's contention that he did not

ieee notice before a member of the

Inquiry Panel recused himself. Likewise,

we reject his assertion that he should have

been notified that a new Panel member would

be replacing another member at the upcoming

App. 9

Inquiry Panel proceedings. If Harris

believed any member serving on the Panel

should have been disqualified because of

conflicting interests, he could have given

written notice to the Panel Chairman

explaining the basis of the allegation,

with copies to the Chairman of the Inquiry

Committee “a Bar Counsel. Guidelines, [ ]}

[Sec.] 5-181 (b). There is nothing in the

record to indicate that he took that

action. Moreover, the trial court

concluded, and we agree, that Harris has

failed to demonstrate a conflict of

interest on the part of any Panel member,

Or any prejudice to himself as a result of

the substitution.

Finally, Harris claims the disciplinary

petition charged him "with violations as to

which he was not charged before the Inquiry

Panel and as to which that Panel made no

findings...." We reject this contention.

Formal charges of misconduct do not exist

App. 198

against an attorney until a petition is

docketed in this Court. Attorney Grievance

Commission v. Bailey, 285 Md. 63l, 637, 403

A.2d 1261, 1265 (1979). As long as these

charges are “sufficiently clear and

specific™ so as to reasonably inform the

respondent what he is com7melled to answer

for and detend against, Md. Rule BV 9c;

Attorney Grievance Commission v. Cockrell,

270 Md. 686, 313 A.2d 816 (1974), and there

are no substantive transgressions cf the

Commission's own Guidelines or the BV

Rules, the respondent is generally

precluded from contesting what occurred in

the preliminary stages before the Inquiry

Panel and the Review Board leading to the

-

filing of charges in this Court. See

Stewart, 285 Md. at 259, 491 A.2d at 1930.

See generally Attorney Grievance Commission

v. McBurney, 282 Md. 116, 122-24 & n.l, 382

A.2d 58, 62-3 & n.1 (1978).

Accordingly, the respondent's first

App. ll

motion to dismiss is denied. /6

Exception 17

In his second motion to dismiss, Harris

alleges that Bar Counsel had an improper ex

parte communication with a member of the

Inquiry Panel that was considering the

complaints against respondent. He argues:

"Bar Counsel, in a ex parte manner

and without informing Respondent or

--- his counsel, improperly, impermis-

sibly and unethically attempted to

affect and/or did affect the proceed-

ings, decision and/or recommendation

of said panel and/or its disposition

of the matters entrusted to it herein

by seeking to change and/or by persuad-

ing the panel to change its recommenda-

tion herein with respect to the respec-

tive complaints of said Delores Green

and Anthony Jeter."

After a hearing, the trial court rejected

Harris's contention, Harris has renewed

/6 Although we do not decide whether

Md. Rule BV 10 b is an additional basis on

which to reject any of Harris's objections,

we believe it iS appropriate to draw

attention to that rule:

"The hearing of charges shall not

be stayed or challeneged by reason

of any procedural defects alleged to

have occurred prior to the filing of

charges."

——— —

App. 12

his motion before this Court.

In support of his contention, Harris

submitted an internal memorandum from Bar

Counsel's files describing the communica-

tion between Bar Counsel and the Inquiry

Panel member. It reads as follows:

TO BC Docket No. 84-247-4-2 ~

Green/Harris

BC Docket No. 84-96-4-2

Jeter/Harris

FROM Melvin Hirshman

Bar Counsel

On July 23, 1985, I read the

report of four (4) cases against this

Respondent from the Inquiry Panel.

The two (2) cases referred to above

were reported as recommending that

the Respondent be reprimanded. The

transcript of their findings of May 6,

1985, indicated that they found the

conduct such that he should not re-

ceive discipline but should receive a

reprimand. I called Katherine Bishop,

Chairman of the Panel, and went over

the BV Rules to her and explained the

difference to her between a warning

and a reprimand. She said that she

would conter with the other members of

her Panel and advise me in a day or so

what it was that they intended in

these two (2) cases. The two (2)

cases in which they recommended

Charges and a dismissal are not involv-

ed with the problem. Mr. Grossman

App. 13

advises me that if the Panel indicates

that warnings rather than reprimands

were meant, then we will appeal this

matter to the Commission at its next

meeting.”

It is clear from this memorandum, which was

written by Bar Counsel to his own files,

that Harris's contention must fail.

According to the memorandum, the Inquiry

Panel in the Green and Jeter cases

apparently recommended a disposition which

was not recognized in the BV Rules. Upon

reading this recommendation, Bar Counsel,

by telephone, contacted the chairperson of

the Panel to explain the permissible

dispositions available under the Rules.

The memorandum also reveals that Glenn

Grossman, Assistant Ber Counsel,

recommended to Bar Counsel that an appeal

be filed if the Inquiry Panel sussequently

indicated tnat “warnings rather than

reprimands were meant." The record is

devoid of any evidence that Bar Counsel

attempted to influence the Inquiry Panel in

App. 14

any way to come forward with a particular

outcome. Accordingly, the respondent's

second motion to dismiss is denied.

re

Complaint of Delores Green

Exceptions Nos. 1, 6, 7, 8, 13, 14

According to Judge Davis's findings, the

Green complaint relates to Harris's

representation of Delores Green ina civil

action against Action T.V. Rental, Inc.

("Action T.V."), and one of Action TV's

employees, James Alexander, for Alexander's

allegedly wrongful repossession of a

television set which Green was renting

(with an option to purchase) from Action

TV. The crux of Green's complaint, lodged

with the Attorney Grievance Commission

sometime in 1984, was that her case against

the defendants was dismissed for lack of

prosecution. A settlement between Harris,

On behalf of Green, and the attorney for

Action TV, John H. Doud, III, was

App. 15

eventually reached in 1985. As part of the

settlement, Green received $758 and a new

television set from the defendants. [In

addition, Harris gave Green $690.

Based on the foregoing, the Commission

charged Harris with violating the following

~ disciplinary rules:

Disciplinary Rule 1-182

"Misconduct.

(A) A lawyer shall not:

(1) Violate a Disciplinary Rule.

(4) Engage in conduct involving

dishonesty, fraud, deceit, or

misrepresentation.

(5) Engage in conduct that is

prejudicial to the administra-

tion of justice.

Enage in any other conduct

that adversely reflects on

his fitness to practice law."

-

re))

Disciplinary Rule 6-191

"Falling to Act Competently.

(A) A lawyer shall not:

.2) Handle a legal matter without

preparation adequate in the

circumstances.

(3) Neglect a legal matter en-

trusted to him."

Disciplinary Rule 7-191

"Representing a Client Zealously

App. 16

(A) A lawyer shall not intentional-

ly:

(1) Fail to seek the lawful objec-

tives of his client through

reasonably available means

permitted by law and the Dis-

ciplinary Rules, except as

provided by DR 7-101(B). A

lawyer does not violate this

Disciplinary Rule, however,

by acceding to reasonable re-

quests of opposing counsel

which did not prejudice the

rights of nis client, by be-

ing punctual in fulfilling

all professional commitments,

by avoiding offensive tac-

tics, or by treating with

courtesy and consideration

all persons involved in the

legal process.

Judge Davis found that the case had been

dismissed prior to settlement and conclud-

ed:

"While it is true that Delores

Green agreed to the settlement and

may have received all to which she

was entitled in her case against

Action TV Rental, it is difficult to

kmoOw with any certainty whether

Green's position was compromised by

virtue of the dismissal of her case.

It should be noted that the Respond-

ent did make a $600.88 contribution

to the settlement of Green's case

which shows that he desires to make

reparations; however, the contribu-

tion may also be indicative of Res-

pondent's belief that he was less

App. 17 7

than diligent in his representation

of Green. As a result of the fore-

going, I find that Respondent failed

to represent his client zealously

through reasonably available means

permitted by law in violation of Dis-

Ciplinary Rule 7-1901(A) (1) and

that Respondent neglected a legal

matter entrusted to him in violation

of Disciplinary Rule 6-101(A) (3)."

Judge Davis further concluded that Harris

did not violate DR 1-1902(A) (4), (5) and

(6), DR 6-101(A) (2), and DR 7-101(A) (2)

and (3).

Exception No. l

Harris contends that Judge Davis's

factual finding that “[t]he case was auto-

matically dismissed pursuant to Judge Green-

feld' “rder of March 24th, 1982" is not

Supported by clear and convincing evidence.

In a disciplinary action, factual findings

are prima facie correct and will not be

disturbed on appeal unless determined to oe

clearly erroneous. Attorney Grievance

Commission v. Gilbert, 307 Md. 48l, 4902,

515 A.2d 454, 458 (1986); Attorney Griev-

ance Commission v. Kemp, 303 Md. 664, 674,

Nee rrr

App. 18

496 A.2d 672, 677 (1985) and cases cited

therein. Based on our review of the

record, we are unable to say that Judge

Davis's finding is clearly erroneous.

Judge Greenfeld's Order of March 24,

1982, the second of two orders suspending

Operation of Md. Rule 538 (now Md. Rule

2- 587), provides:

"Plaintiff's Motion to Suspend Opera-

tion of Md. Rule 538 GRANTED.

Plaintiffs should not be penalized

for the Court's failure to rule on

Defendant's Demurrer, which was pre-

viously filed. Md. Rule 530 shall

be suspended for 12 months from

today's hearing. If the case is

not disposed of with said 12 month

period, it shall be automatically

dismissed for lack of prosecution."

(Emphasis added).

t

A docket entry on the Green file jacket,

dated March 25, 1983, provides:

"DISMISSED under Rule 530 of the

Maryland Rules of Procedure for

lack of prosecution. Judgment

absolute in favor of the Defend-

ant(s) for costs of suit."

Harris argues that Ms. Green's case was

"still alive on the docket" when the

settlement was reached petween Green and

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App. 19

Action T.V. In support of this argument,

Harris contends that the:

"court clerk's office had erroneous-

ly issued an untimely notice of con-

templated dismissal of the case un-

der former Maryland Rule 530 before

the requisite one year's time,

which triggered operation of that

cule, had expired. Respondent had

filed a motion raising this defect.

That occasioned the filing of a

motion ne recipiatur by the defend-

ant in the case. Those motions

still were pending, and thus the

case had not been finally dismiss-

ed, when it was settled by the res-

pondent, Ms. Green having consented

to the proposed settlement with

full knowledge of all pertinent

circumstances,"

Judge Greenfeld's Order of March 24,

1982, suspending operation of Md. Rule 5320

for one year, unequivocally provides that

the case would be dismissed for lack of

prosecution if the case was not disposed of

Within the twelve month period. Evidence

of several post-dismissal pleadings and a

post-dismissal settlement between the

parties in the circumstances of this case

does not overcome the prima facie

correctness of Judge Davis's factual find-

App. 20

ings. Accordingly, we find no merit to

this exception.

Exception No. 6

Along the same lines, Harris contends

that Judge Davis erred in reaching the

following conclusion of law:

"I find as a fact that the settle-

ment that was reached occurred at a

time when the case against Action

T.V. Rental had been dismissed."

Judge Davis correctly characterized the

finding as an issue of fact. For the

reasons previously set forth, we find this

exception to be without merit.

Exception No. 7

Exception 7 relates to Harris's conten-

tion below that the case against Action TV

never reached disposition due to Harris's

inability to secure a trial date. Harris

argues that the trial judge erred in

reaching the following conclusion of law:

"I further find that there is no

credible evidence before this Court

App. 21

to indicate that [Harris's law

clerk] contacted the office of John

Doud in regard to scheduling a trial

date particularly in light of Doud's

assertion that no contact was made

with his office prior to the receipt

of the May, 1983 letter sent by

Respondent."

The factfinder determines the weight of

the evidence, including whether to believe

any witness. Attorney Grievance Commission

v. Winters, Md. ’ A.2d

(Misc. No. 30, September Term, 1984, slip

Oop. at ll (filed June 2, 1987)] and cases

cited therein. Under the clearly erroneous

Standard, we will not substitute our

judgment for that of the trial judge. This

contention is without merit.

Exception No. 8

Harris next excepts to Judge Davis's

conclusion that the:

"Respondent failed to represent nis

client zealously through reasonably

available mans permitted by law in

violation of Disciplinary Rule

7-101(A) (1) and that Respondent

neglected a legal matter entrusted

to nim in violation of Disciplinary

Rule 6-1901(A) (3)."

App. 22

The docket entry of March 25, 1983, re-

flecting the dismissal of Green's case, pro-

vides that judgment absolute was entered in

favor of the defendants. [It is our view

that Harris violated DR 7-1901(A) (1) and

6-191(A) (3) when his client's case was dis-

missed. Hence, we deny this exception.

Exception No. 13

Harris contends that Judge Davis erred

in finding that:

"([Rlespondent's representation of

Delores Green ... waS characterized

by a cavalier informality, impati-

ence with his clients, and a lack =

of professionalism."

This finding relates to Judge Davis's con-

clusion that Harris did not violate subsec-

tions (3) and (4) of Disciplinary Rule l-

102. Inasmuch as Bar Counsel has not

excepted to this finding and because this

finding plays no part in our disposition of

the other exceptions, we decline to address

this contention,

App. 23

Exception No. 14

Finally Harris objects to Judge Davis's

conclusion that Harris violated DR 1-102(A)

(1), DR 6-101(A) (3), and DR 7-101(A) (1).

As we have affirmed the violations of DR 6-

101(A) (3) (Exception 8, supra), and DR 7-

191(A) (1) (Exception 8, supra), it follows

that Harris violated DR 1-1@2(A) (1).

Accordingly, we reject this exception.

Complaint of Grady Jacks, Sr.

Exceptions Nos. 2, 3, 4, 5

Do 1B, Bis Aas Loe 3

According to Judge Davis's findings,

Harris began representing Grady Jacks, Sr.,

in June of 1982. Over the next few years,

Harris handled some 19 personal injury

Claims for Jacks and nis family. On

numerous occasions during this period,

Harris gave Mr. and Mrs. Jacks certain

monies: some of the sums were personal

loans, some were advances against

anticipated settlement of the tort claims,

App. 24

and others were actual settlement monies.

On September 7, 1984, Harris informed Jacks

that Jacks owed him some $3,580. Jacks,

who disputed the debt, requested an

accounting from Harris and filed a

complaint against Harris with the Attorney

Srievance Commission. As a result of the

complaint, Harris froze all settlement

funds which he held on behalf of the Jacks

family pending resolution of these

proceedings.

Based on this history, the Commission

Charged Harris with violating the following

disciplinary rules:

Disciplinary Rule 1-192

"Misconduct

(A) A lawyer shall not:

(1) Violate a Disciplinary Rule.

(2) Circumvent a Disciplinary

Rule through actions of

another.

(3) Engage in illegal conduct in-

volving moral turpitude.

(4) Engage in conduct involving

dishonesty, fraud, deceit, or

misrepresentation.

(5) Engage in conduct that is

prejudicial to the administra-

tion of justice.

ee

App. 25

(6) Engage in any other conduct

that adversely reflects on

his fitness to practice law."

Disciplinary Rule 5-133

"Avoiding Acquisition of Interest

In Litigation.

(B) While representing a client in

connection with contemplated or

pending litigation, a lawyer

shall not advance or guarantee

financial assistance to his

client, except that a lawyer

may advance or guarantee the

expenses of litigation, includ-

ing court costs, expenses of in-

vestigation, expenses of medic-

al examination, and costs of ob-

taining and presenting evid-

ence, provided the client re-

mains ultimately liable for

such expenses."

Disciplinary Rule 9-192

"Preserving the Identity of Funds and

Property of a Client

(B) A lawyer shall:

(3-) Maintain complete records of

all funds, securities, and

Other properties of a client

coming into the possession

of the lawyer and render ap-

propriate accounts to his

client regarding them.

(4) Promptly pay or deliver to

the client as requested by

the client the funds, securi-

ties, or other properties in

the possession of the lawyer

which the client is entitled

to receive.”

App. 26

Judge Davis concluded that Harris violat-

ed DR 1-102(A) (1), DR 5-103(B), and DR 9-

102(B) (3), but did not violate DR 1-102(A)

(2), (3) (4)- (5), (6), and DR 9-102(B)

(4).

Exception No. 2

In this exception, Harris contends that

the trial judge erred in making the

following findings of fact:

"He filed a Demurrer on October 15,

1979 to the Civil Action brought

by the Respondent."

We agree with Harris that this finding

relates to the Green complaint and not the

Jacks complaint. Exception 2 is sustained.

Exception 3

‘Harris next challenges Judge Davis's

finding that Harris advanced $608.24 to

Vincent Stark of Stark Realty Company for a

delinquent mortgage payment. We have

searched the record and find no clear and

convincing evidence to support this

finding. Accordingly, Exception 3 is

Sustained,

App. 27

Exception 4

Harris argues that the trial judge erred

in making the following italicized finding:

"With respect to the failure of

Respondent to give an accounting to

Grady Jacks or his family for the

19 cases he handled for them, he

offered a letter of Feoruary 14,

1984 as a settlement sheet for the

cases referred to therein."

As we read Judge Davis's memorandum of

findings of fact and conclusions of law,

the challenged language is merely a recital

of the claims against Harris and not a

finding of fact. This exception is denied.

Exception 5

In the same vein, Harris claims that the

trial judge erred in making the following

"finding or conclusion:"

"Petitioner asserts that DR 9-192(A)

(2) is inapplicable to the present

case, since, according to the Peti-

tioner, Grady Jacks was not disput-

ing the fee due Respondent; hence

there was no reason to freeze the

funds in Respondent's escrow

account."

We perceive the quoted passage to be a

Summary of one of Bar Counsel's arguments

App. 28

rather than a finding of fact or conclusion

of law. Accordingly, this exception is

without merit.

Exception 9

Exception 9 challenges the following con-

clusion of law:

"The advances, as set forth herein-

above, included ... an advance of

$608.24 paid to Vincent Stark for

delinquent Mortgage payments."

We agree with Harris for the reasons set

forth in Exception 3. Exception 9 is

Sustained,

Exception 104

Harris next claims that Judge Davis

erred in concluding that Harris violated DR

5-193(B). As previously set forth, DR 5-

193(B) prohibits a lawyer from providing

financial assistance to a client while

representing a client in connection with

contemplated or pending litigation, except

that under some circumstances a lawyer may

advance or guarantee the expenses of

litigation.

App. 29

Judge Davis found that the monies

advanced to the Jacks family from Harris

included "a $3,509.80 deposit to the seller

for the purchase of a house, $2400.90 for

settlement on the Allendale Road property,

a $332.75 advance for the purchase of a

1977 Cadillac automobile, $1500.90 for the

tax and title on tne automobile, ... and

$750.80 for the purchase of a video

machine." He further found that these sums

were in no way advances for the "expenses

of litigation." /7

In response to Harris's argument that

the monies were not advanced in connection

with contemplated or pending litigation

lnasmuch as it was Harris's intention to

settle the cases out-of-court, Judge Davis

concluded:

/7 Upon our review of the record, it

appears that the $1500.08 was actually for

the car and the $332.75 was for the taxes

and title.

App. 39

"Respondent was authorized to enter

Suit at any time under the provi-

sions of the retainer agreement ex-

ecuted in each case. Each agree-

ment further contained a provision

regarding the contingent fee wheth-

er recovery was effectuated by a

law suit or by settlement. [In

fact, Respondent did file suit in

1984. Finally, an attorney would

be remiss if he undertook represent-

ation of his client without being

prepared, if the eventuality arose,

to pursue the course to whatever

end the pre-litigation negotiations

required. To do less would not be

to properly represent his client."

We agree with Judge Davis and deny Excep-

tion 10.

Exception ll

In this exception, Harris challenges

Judge Davis's conclusion that:

"fHarris] failed to maintain com-

plete records of all funds, secur-

ities, and other properties of his

client coming into the possession

of the lawyer and to render approp-

riate accounts to his clients re-

garding them in violation of Disci-

plinary Rule 9-1902(B) (3)."

Based on our review of the record, we

Cannot say that Judge Davis's conclusion

was in error. Accordingly, we deny this

exception,

App. 3l

Exception 12

Harris also challenges the trial judge's

conclusion that Harris violated a

disciplinary rule contrary to DR 1-102(A)

(1). As we have affirmed violations of DR

5-1093(B) (Exception 10, supra) and DR 9-132

(B) (3) (Exception 11, Supra) with respect

to Harris's representation of Jacks, this

exception is without merit.

Exception 13

Exception 13 is set forth in our

discussion of the Green complaint, supra.

For the same reasons, it is denied with

regard to the Jacks complaint.

Exception 15

Finally, Harris challenges Judge Davis's

conclusion that Harris violated DR 1-1%32(A)

(1), DR 5-103(B), and DR 9-192(B) (3). We

have addressed these contentions in

previous exceptions and have found them to

be without merit. Exception 15 is denied.

App. 32

IV

Petitioner's Exception

Bar Counsel excepts to Judge Davis's

failure to find a violation of Disciplinary

Rule 9-102(B) (4). Judge Davis found there

was no clear and convincing evidence to

Support the conclusion that Harris violated

DR 9-192(B) (4). Based on our review of

the record, we are unable to say that Judge

Davis's finding is clearly erroneous.

Accordingly, this exception is denied.

V

Sanction

The severity of the sanction to be

imposed depends upon the facts and circum-

Stances of each case. Attorney Grievance

“ommission v. Brown, 308 Md. 219, 236, 517

A.2d llll, 1119 (1986). With respect to

the charges in connection with Harris's

representation of Delores Green, we have

upheld Judge Davis's conclusion that Harris

neglected a legal matter in violation of DR

App. 33

6-181(A) (3), failed to represent his

client zealously in violation of DR 7-

101(A) (1), and violated a disciplinary

rule in contravention of DR 1-102(A) (1).

With respect to the charges in connection

with Harris's representation of the Jacks

family, we have upheld Judge Davis's

conclusion that Harris advanced financial

assistance to his client in violation of DR

5-183(B), failed to maintain complete

records and render appropriate accounts in

violation of DR 9-102(B) (3), and violated

a disciplinary rule in contravention of DR

1-102(A) (1). The Commission seeks a nine

month suspension. It cites Bar Association

of Baltimore City v. Cockrell, 274 Md. 279,

334 A.2d 85 (1975).

Considering all the circumstances in

this case, we conclude that the appropriate

sanction to be imposed is suspension from

the practice of law in this State for six

months. We recognize that Harris has had

App. 34

no disciplinary action taken against him

Since his admission to the bar in 1968.

Nevertheless, the violations here are

sufficiently serious to warrant suspension

for this length of time. The suspension

Shall begin thirty days after the filing of

the opinion in this case and shall continue

thereafter until Harris has paid his

portion of costs in this case.

IT IS SO ORDERED; RESPONDENT TO

PAY TWO-THIRDS AND THE ATTORNEY

GRIEVANCE COMMISSION TO PAY ONE-THIRD

OF THE COSTS AS TAXED BY THE CLERK

OF THIS COURT, INCLUDING THE COSTS

OF ALL TRANSCRIPTS PURSUANT TO

MARYLAND RULE BV15 c. FOR WHICH SUM

JUDGMENT IS ENTERED IN FAVOR OF THE

ATTORNEY GRIEVANCE COMMISSION

AGAINST ALAN EDGAR HARRIS.

App. 35

ATTORNEY GRIEVANCE >: .IN THE

COMMISSION OF MARYLAND COURT OF APPEALS

OF MARYLAND

Petitioner

MISC. DOCKET

(BV) 51

Vv. : SEPTEMBER TERM

1985

IN THE

: CERCOLT COURT FOR

ALAN EDGAR HARRIS BALTIMORE CITY

Respondent DP-38 NO. 51

MEMORANDUM OF FINDING OF FACT AND

CONCLUSIONS OF LAW

The Petition of the Attorney Grievance

Commission ("The Commission") in requesting

disciplinary action against the Respondent

and its answer filed thereto came on before

the Circuit Court for Baltimore City on

September 1l, 1986 and October 14 and 16,

November 20, 1986 and January 19, 1987.

The testimony offered at that hearing

together with the Exhibits received

established a clear and convincing evidence

of the following facts relevant to this

controversy. On September 11, 1986,

App. 36

The Commission proceeded with the complaint

of Delores Green against the Respondent

which grew out of the case of Green v.

Action TV-Rental in the Court of Common

Pleas of Baltimore City. Called to testify

for The Commission were John Doud, Esquire,

an attorney with the firm of Fedder and

Garten (who represented Action TV Rental)

and the Complainant, Delores Green. Ms.

Green had retained the Respondent to file

Suit against Action TV Rental on the basis

that an employee of Action TV Rental had

broken into her home to repossess a

television set on behalf of the Company.

The employee, Jim Alexander, allegedly

pushed Ms. Green out of the way, throwing

her against the door and then pushed her

daughter, Veronica Wilkerson, while at the

house. Ms. Green claimed her shoulder

and/or back were injured when she became

involved in the altercation with Mr.

Alexander. Ms. Green called the police and

App. 37

Alexander was apprehended. Delores Green

thereafter retained the Respondent to

° defend her against charges of assault and

battery by the employee of Action TV Rental

and to assist her in her cross-complaint

against Alexander. The Respondent was also

retained to institute a civil case against

Action TV Rental.

Delores Green asserted that she

discussed her case against Action TV Rental

with Respondent sometime in 1984:

"I asked nim how the case was and at

the time he told me the case had

been dismissed and he had to leave,

he didn't have time to talk to me

and he would send me papers on what

happened with the case."

It was at that point that she telephoned

the Attorney Grievance Commission to file

her complaint. Within two weeks after

advising Green that the case had been

. dismissed, Respondent forwarded a letter

that “recorded step by step everything he

had done." Ultimately, Green received a

new color television set in settlement oft

App. 38

the case against Action TV Rental, the

Complainant having made all of the payments

on the original contract with the exception

. of the last payment. The employee of

Action TV Rental had broken the original

television set with a cinder block when

told by police that he could not take the

television set away.

John Doud testified that he filed a

Demurrer on October 15, 1979 to the civil

action brought by the Respondent.

According to Doud, the Plaintiff's Motion

to Suspend Maryland Rule 5398 was granted

for a period of a year in March of 1982.

Doud claimed that he had no discussion with

his client between the time of filing of

the Demurrer and March of 1982. The case

° was automatically dismissed pursuant to

Judge Greenfeld's Order of March 24th,

1982. When asked the reason given by

Respondent as to why tne dismissal of the

Green matter should have been vacated, Doud

App. 39

responded that Respondent had sent him a

letter asserting that Respondent's law

. clerk had contacted Doud's office to

attempt to arrange a scheduling of the

trial date and that Respondent was unable

to get cooperation from Doud's office or to

agree upon a trial date. According to

Doud, he had no recollection of any contact

from Respondent's oftice and that he

further indicated tht the file did not

reflect any communication or correspondence

from Respondent at any time prior to

requesting cooperation in setting a trial

date. Doud further testified that the case

was settled for $750.@00 in cash and a

console television set.

Respondent avers that Green "did not

suffer any detriment from Respondent's

activities” by reason of her receipt of "an

adequate settlement", according to

Respondent's evaluation of the claim. He

points to the fact that, notwithstanding

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that former Rule 530 had been invoked,

settlement was nevertheless accomplished.

Respondent further alludes to the fact that

he made a $680.80 contribution to the

settlement:

"I paid $680.90 because I have a law

practice. If I try the case I

still will probably wind up losing.

A lawyer's time and advice are his

stock and trade and Mr. Grossman I

don't know whether you are aware of

the cost of trying a case. If you

try a case, it's going to cost you

anywhere from $12,000.99 to put a

jury in the box and to -=- and the

Court system -- I, aS an attorney

try to settle a case if I can. I

settle a case for economic

reasons."

oT

~ Respondent explained that prior to

March, 1982, he never contacted the Court

to attempt to have a hearing on the

Demurrer because the Court was "so back-

logged that you could write, you could

stand on your head and you could talk

yourself plue in the face."

When asked whether a Motion filed by

Respondent for Suspension of Maryland Rule

530 had precipitated a Motion Ne

—

App. 41

Recipiatur, Respondent replied:

"That's correct. After I receive a

Motion Ne Re then I went over and I

sometime after that when I got a

chance to read the Motion Ne Re I

found out the case had an entry

that was posted, obviously, was

posted after April 25th. The case

had not actually been dismissed in

March. It had been written in as

actual entry as having been dismiss-

ed after April 25 so it may have

been sometime in May that it was

Gismissed. The Clerk's office ob-

vioulsy [sic] had destroyed the

notice of contemplated dismissal,

which I sent to them, the March 25

entry was made.

* * * *

On the fifth day of May, 1983 I

Filed a Motion for Suspension of

Maryland Rule 538, that was filed

by May 16. What happened was I

mailed Mr. Doud his copy and then

it took me awhile to get over to

Court and I filed, I actually filed

his response to the Motion, his oe-

ing dated May 13, 1983 having been

filed and mine having been dated--

May 16, 1983. And this file has

been taken away from the Clerk's

office, and the papers are not in

order, there are notations on it,

this one said filed late. I don't

recall that ever being in the file

of the Clerk's office. I think

there may have been--it's been out

of the custody of the Court and not

in the Clerk's Office where it be-

longs and in possession of Mr.Gross-

man and it's not in proper order."

App. 42

Considering the complaint of Grady

Jacks, Respondent began representing the

Jacks family around June 23, 1982. He

filed a Demurrer on October 15, 1979 to the

Civil Action brought by the Respondent.

Over a period of time, Respondent handled

some 19 accident cases involving the Jacks

family. In each case, a retainer agreement

was executed which contained a Power of At-

torney authorizing Respondent to make pay-

ments from proceeds received. At various

times after June 23rd, 1982, the Respondent

advanced monies to William Jacks and to

Grady and Mrs. Jacks. Advances had been

made to the Jacks family including a

$3,500.00 deposit to the seller, $2,490.89

for settlement on the Allendale Road Proper-

ty, a $332.75 advance for the purchase of a

1977 Cadillac automobile, $1,500.99 for the

tax and title on the automobile and an

advance of $608.24 paid to Vincent Stark of

Stark Realty Company for delinquent

App. 43

Mortgage payments for the months of April

and May, 1984. Jacks also obtained $758.90

from Respondent to purchase a video

machine. Jacks estimated that the loans

received from Respondent totalled approxi-

mately $8,000.80 to $9,020.90.

When asked when he first demanded an

accounting, Jacks respondent [sic] "shortly

after Mr. Harris was with my first case in

1982 with The Mayor and City Council v.

Diamond Cab Company." At a later point in

the proceedings, Jacks asserted that he

could not say how much Respondent owed him

currently because he "would need to know

(myself) what each case was wegen, * He

estimated that the total of all of the

cases would have come to $35,000.90.

Jacks, on cross-examination, acknowledged

that he "may have" told the panel that

$16,090.08 was the amount owed him by the

Respondent. Jacks later conceded that a

letter dated February 14 from the Respon-

App. 44

dent referring to a check in the amount of

$3792.62 represented the difference between

the $14,158.08 proceeds and "total amount

of indebtedness to my office and me,

personally."

Respondent takes the position that

monies paid to Mr. Jacks and members of his

family were paid against P.I.P. sums re-

ceived. Respondent principally argues, how-

ever, that the loans made to the Jacks fam-

ily were not made while he represented the

Jacks family in connection with "contemplat-

ed or pending litigation."

With respect to the failure of Respond-

ent to give an accounting to Grady Jacks or

his family for the 19 cases that he handled

for them, he offered a letter otf February

14, 1984 as the settlement sheet for the

cases referenced therein. Additionally,

Respondent asserted that he reviewed with

Jacks and his family certain ledger cards

App. 45

containing information regarding the cases

he was handling.

. Petitioner asserts that DR9-192(A)(2) is

inapplicable to the present case, since,

according to Petitioner, Grady Jacks was

not disputing the fee due Respondent; hence

there was no reason to freeze the funds in

Respondent's escrow account. Finally,

regarding the claim of Grady Jacks, Respon-

dent asserts that his client authorized a

payment of a fee of $1252.57 notwithstand-

ing that the initial retainer agreement

with Mr. Jacks called for the payment of a

fee of $1,066.67, representing one third of

the $3,200.00 recovery.

With respect to the claim of Anthony

Jeter growing out of his action against

Chong Nim Lee, the Petitioner asserts that

Respondent has violated tne Disciplinary

Rules by reason of an alleged failure to

file answers to interrogatories for a

period in excess of one year and a further

App. 46

failure to have the case placed on the

trial docket until October 19, 1984. Ser-

vice of process had been effectuated on Lee

December 3, 1980. Respondent received the

answers to interrogatories from Anthony

Jeter on August lst and 2nd, 1982. The

time to respond to the interrogatories had

been extended pursuant to Respondent's re-

guest. Respondent had written to Counsel

for the Defendant advising of certain diffi-

culties in representing Jeter because the

latter was at the time incarcerated. On

July 13, 1983, Respondent forwarded unex-

ecuted answers to the interrogatories to

counsel for the Defendant. In September of

1983, the answers were filed. In support

of its allegations, The Commission alludes

to Respondent's representation to counsel

for the Defendant that he would have to

meet with Jeter's Counselor, but Respondent

failed to follow through and visit his cli-

ent's Counselor. Penultimately, Petitioner

App. 47

asserts Respondent's failure to place the

case on the trial docket was the result of

neglect rther than a tactical decision.

Respondent had submitted that the decision

to defer proceeding in the case was bottom-

ed on the consideration that Jeter's abil-

ity to recover would be hampered by know-

ledge of nis status aS a prisoner during a

trial.

The Commission cites the fact that

Respondent failed to make mention of his

Strategy of not going forward in his answer

wherein he indicated that the Plaintiff

would be present pursuant to a Writ of

Habeas Corpus "if there is a trial date

assigned to this case... ." Petitioner

further alludes to a letter from Respondent

to Jeter in which Respondent suggested

there would be a break in his case load and

he would be able to "give some attention to

[your] case."

App. 48

CONCLUSIONS OF LAW

Respondent relies primarily on the fact

that Delores Green agreed to and received a

settlement in her case against Action TV

Rental in conjunction with his assertion

that Green herself had brandished a pair of

scissors giving rise to the criminal action

against her which had to be defended. I

find as a fact that the settlement that was

reached occurred at a time when the case

against Action TV Rental had been dismiss-

ed. I further find that there is no cred-

ible evidence before this Court to indicate

that Jonathan Resnick contacted the office

of John Doud in regard to scheduling a

trial date particularly in light of Doud's

assertion that no contact was made with nis

office prior to the receipt of the May,

1983 letter sent by Respondent.

While it is true that Delores Green

agreed to the settlement and may have re-

ceived all to which she was entitled in her

App. 49

case against Action TV Rental, it is diffi-

cult to know with any certainty whether

Green's position was compromised by virtue

of the dismissal of her case. [It should be

noted that the Respondent did make a

$680.98 contribution to the settlement of

Green's case which shows that he desired to

make reparations; however, the contribution

may also be indicative of Respondent's be-

lief that he was less than diligent in his

representation of Green. As a result of

the aforegoing [sic], I find that Respond-

ent failed to represent his client zealous-

ly through reasonably available means per-

mitted by law in violation of Disciplinary

Rule 7-181 (A) (1) and that Respondent neg-

lected a legal matter entrusted to him in

violation of Disciplinary Rule 6-191 (A)

(3).

In answer to the allegation that Respon-

‘dent improperly advanced monies or guaran-

teed financial assistance to Grady Jacks,

App. 5@

he contends: (1) that the monies paid to

Grady Jacks and his family were advances

against P.I.P. proceeds; and (2) that the

loans made to the Jacks family were not

made in connection with cases where there

was “contemplated or pending litigation."

Considering the last contention first,

there is without question clear and

convincing evidence that the monies

advanced were for sums far in excess and

wholly unrelated to the Personal Injury

Protection proceeds received. DR 5-193 (B)

provides:

"While representing a client in con-

nection with contemplated or pend-

ing litigation, a lawyer shall not

advance or guarantee financial

assistance to his client, except

that a lawyer may advance or guaran-

tee the expenses of litigation, in-

cluding Court costs, expenses of in-

vestigation, expenses of medical ex-

amination, and costs of obtaining

and presenting evidence, provided

the client remains ultimately

liable for such expenses."

There had been testimony that monies

were paid for transportation for the Jacks

App. 51

family to and from Respondent's office and

to other places in connection with the

cases in which Respondent represented

them. The advances, as set forth hereinbe-

fore, included a $3,588.00 deposit to the

seller for the purchase of a house,

$2488.90 for settlement on the Allendale

Road property, a $332.75 advance for the

purchase of a 1977 Cadillac automobile,

$1500.00 for the tax and title on the

automobile, an advance of $608.24 paid to

Vincent Stark for delinquent Mortgage

payments, and $758.90 for the purchase of a

video machine. It is clear that those sums

were in-no way advanced for the "expenses

of litigation" as the purposes are clearly

set forth. Additionally, Respondent was

authorized to enter suit at any time under

the provisions of the retainer agreement

executed in each case. Each agreement

further contained a provision regarding the

contingent fee whether recovery was

App. 52

effectuated by a law suit or by settle-

ment. In fact, Respondent did file suit in

1984. Finally, an attorney would be remiss

if he undertook representation of his

client without being prepared, if the

eventuality arose, to pursue the cause to

whatever end the pre-litigation negotia-

tions required. To do less would be not to

properly represent his client.

Concerning the allegation that Respond-

ent failed to make a proper accounting to

Grady Jacks, he asserts that (1) a letter

dated February 14, 1984 served as a

settlement sheet for the cases referenced

therein (2) a ledger sheet prepared by

Melville Harris, Respondent's fatner, was

reviewed with tne client; (3) and that many

of nis records had been submitted to the

Circuit Court No. 2 in connection with his

divorce suit, Frances Harris v. Alan Edgar

Harris.

At the outset, it is axiomatic that it

= .a =

App. 53

is preferable for a private practioner to

use a settlement sheet in which the amount

of the proceeds received as well as all

itemized expenses are set forth thereon.

Such a settlement sheet would have avoided

the dispute as to whether or not Grady

Jacks and his family had receivéd all to

which they were entitled. More specitfrical-

ly, however, the disbursement contained on

Respondent's ledger sheet was incomplete.

The $332.75 “personal loan” paid to Grady

Jacks for Johnnies' auto sales was not

contained thereon. Additionally, certain

sums of money were retained in Respondent's

‘escrow account on behalf of the Jacks

family, notwithstanding that Respondent

averred that he did not owe Jacks any

additional funds.

The letter of Feodruary 14, 1984 was

limited in scope and did not detail

disboursements for medical care and other

expenses in connection with the cases

App. 54

involved. From the aforegoing [sic], there

is clear and convincing evidence that

Respondent, while representing a client in

connection with contemplated or pending

litigation, advanced or guaranteed finan-

cial assistance to his client in violation

of Disciplinary Rule 5-183 (B) and that

Said advances were not to cover the ex-

penses of litigation, Court costs, expenses

of investigation or medical examination for

presentation of evidence. There is further

clear and convincing evidence that the

Respondent has failed to maintain complete

records of all funds, securities, and prop-

erties of his client coming into the posses-

sion of the lawyer and to render appropri-

ate accounts to his clients regarding them —

in violation of Disciplinary Rule 9-132 (B)

(3). See Attorney Grievance Commission v.

Engerman, 289 Md. 330, 424 A.2d 362 (1981)

and Attorney Grievance Commission v.

Cockrell, 274 Md. 279, 334 A.2d 85 (1975)

App. 55

for discussion of advancing financial

assistance beyond the expenses of

litigation. See also Attorney Grievance

Commission v.Kemp, 303 Md. 664, 496 A.2d

672 (1985) for discussion of failure to

maintain complete records of client's

property.

Considering the allegation that Respond-

ent failed to promptly pay over funds

belonging to his client, Respondent

contends that he failed to do so because

there was a dispute as to the amount owed

and Respondent was further consumed by the

divorce proceedings initiated against him

by his wife. While the asserted dispute

was primarily the result of Respondent's

practices, this Court cannot say that the

evidence is clear and convincing that

Respondent failed to promptly pay or

deliver to his client as requested by the

client funds, securities or other

properties in the possession of the lawyer

App. 56

as required by Disciplinary Rule 9-192 (B)

(4). Neither is this Court satisfied that

the evidence is clear and convincing that,

with respect to the case of Grady Jacks,

Respondent's practices constitute illegal

conduct involving moral turpitude, that

Respondent engaged in conduct involving

dishonesty, fraud, deceit, or misrepre-

sentation, or that the conduct complained

of is prejudicial to the administration of

justice as proscribed by Disciplinary Rule

1-102 (A) (3), (4), and (5).

There is, however, clear and convincing

evidence that Respondent did violate a

Disciplinary Rule in violation of DR 1-102

(A) (1).

Anthony Jeter appeared and was gquestion-

ed briefly at a hearing before this Court

on September 1l, 1986, but complained of a

severe headache and asked to be excused. On

succeeding occasions, various excuses were

presented by Mr. Jeter as to why he was

App. 57

unable to appear before this Court to

present testimony regarding his case. This

Court therefore has before it principally

the record of the civil case, Jeter v.

Chong Nim Lee, et al., Case #29397 in the

Baltimore City Court of Common Pleas, exhibd-

its submitted by Petitioner and the

testimony of Respondent. In response to

the allegations contained in the Petition

for Disciplinary Action, Respondent con-

tends that he advised Jeter that appearing

before a jury while incarcerated (requiring

that he be accompanied at trial by a prison

guard) could affect the outcome of his

case. This Court having reviewed the

record of the proceedings in Jeter v. Chong

Nim Lee as well as the records submitted boy

The Commission regarding Jeter's complaint,

I conclude that the evidence is not clear

and convincing regarding Respondent's

violation of DR 1-162 (A) (1) (6), DR 6-161

(A) (3) or DR 7-101 (A) (1), (2) and (3).

App. 58

While this Court does not believe that Res-

pondent did all that he could in pursuing

the claim on behalf of Mr. Jeter, particu-

larly regarding the Interrogatories that

were to be answered, the void created by

Anthony Jeter's reluctance to testify or

his physical incapacity as well as the

reasonableness of Counsel's advice not to

proceed at a time when Jeter would have to

appear in front of a jury when he was obdvi-

ously incarcerated precludes this Court

from finding that Respondent acted contrary

to the best interest of his client.

In conclusion, although this Court does

not find that there has been presented

clear and convincing evidence of disnones-

ty, fraud, deceit, misrepresentation or

moral turpitude, Respondent's representa-

tion of Delores Green and Grady Jacks was

characterized by a cavalier informality,

impatience witn his clients, and a lack of

professionalism. Respondent was, no Coubt,

App. 59

distracted from his professional responsib-

ilities oy his divorce case, but used this

as an excuse in his dealings with his

clients. The same lack of zeal and dili-

gence extant in the Green and Jacks cases

is indicated in the Jeter case notwitnstand-

ing that the evidence presented does not,

in the Court's view, rise to the level

requisite in Disciplinary proceedings.

From the aforegoing [sic], I find as

follows: as to the complaint of Delores

Green, Respondent violated DR 1-102 (A)

(1), DR 6-101 (A) (3), DR 7-101 (A) (1). I

find that Respondent did not violate DR l-

102 (4) (5) and (6), DR 6-202 (A) (2), DR 7-

101 (A) (2) (3). As to tne complaint of

Grady Jacks, Respondent violated DR 1-192

(A) (1),- DR 5-183 (B), DR9-102 (B) (3). I

find that Respondent did not violate DR l-

102 (A) (2)-4 (3)6 (4) (S)e (6) DR 9-192

(B) (4). As to the claim of Anthony Jeter,

while the evidence presented indicates a

App. 60

lack of diligence by Respondent, I do not

find that the evidence is clear and

“s,s

convincing that the Respondent violated

Disciplinary Rules 1-102 (A) (1) and (6),

6-101 (A) (3) and 7-101 (A) (1) (2) and

(3).

ARRIE W. DAVIS, JUDGE

February ll, 1987

cc: Benjamin Lipsitz

Counsel for Respondent

Glenn M. Grossman

Assistant Bar Counsel

Attorney Grievance Commission

of Maryland

w

ee

App. 61

COURT OF APPEALS

OF MARYLAND

* * * * *

July 30, 1987

Glenn Grossman, Esquire

Attorney Grievance Commission

Fourth Floor, District Court Building

Annapolis, Maryland 21441

Re: Attorney Grievance Commission

of Maryland v. Alan Edgar Harris

Misc. Docket (Subtitle BV) No. 5l

September Term, 1985 7

Dear Mr. Grossman:

Please find enclosed a copy of the

Opinion and Order of the Court of Appeals

filed today in the above entitled matter.

Very truly yours,

/s/ Alexander L. Cummings

/t/ Alexander L. Cummings,

Clerk

ALC/fmw

Enclosure

cc: The Honorable Arrie E. Davis

Benjamin Lipsitz, Esquire

Alan Edgar Harris, Esquire

\s

4

App. 62

COURT OF APPEALS

OF MARYLAND

* * * * *

September 9, 1987

Benjamin Lipsitz, Esquire

Suite 182

Baltimore Federal South Building

6689 Reisterstown Road =

Baltimore, Maryland 21215

Re: Attorney Grievance Commission

of Maryland v. Alan Edgar Harris

Misc. Docket (Subtitle BV) No. 51

September Term, 1985

Dear Mr. Lipsitz:

In reference to the Motion for Recon-

Sideration which you filed on behalf of the

respondent in the above-captioned case,

please be advised that on September 8,

1987, the Court denied the Motion for Recon-

Sideration,.

Very truly yours,

/s/ Alexander L. Cummings

/t/ Alexander L. Cummings,

Clerk

ALC: Emw

Glenn Grossman, Esquire