Attorney Grievance Commission v. Sinclair
Attorney Grievance Commission v. Sinclair
Opinion of the Court
The Attorney Grievance Commission, acting through Bar Counsel, filed a petition for disciplinary action against John H. Sinclair, alleging violations of the Disciplinary Rules of the Code of Professional Responsibility. We referred the matter, pursuant to Maryland Rule BV9 b, to Judge Perry G. Bowen, Jr., of the Circuit Court for Calvert County to make findings of fact and conclusions of law. After conducting an evidentiary hearing, Judge Bowen filed his findings as follows:
“In July or early August, 1979 Gregory Powers Maurer contacted the Respondent about the matter of his son’s custody. At that time he was married to his second wife. The child in question was in the custody of his first wife.
“In December, 1979 the mother took the child and Maurer never saw her or the child again and does not know where they are.
“Maurer’s complaint against Respondent, in his own words, is T hired a so called professional and paid him lots of money to take care of one of my problems. He assured me it could be, namely the custody and the child support, everything, and I am still being pulled through the ringer because of his incompetency.’ In fact, Maurer never paid Respondent anything for this matter although Respondent was paid for other work he did for Maurer and other members of his family.
“The original jacket of the case of Maurer v. Maurer Equity #76-1482 in the Circuit Court for Prince George’s County was ordered to be returned to the clerk of that court at his request so further pleadings might be filed in it. Photocopies of the docket entries are included and marked Petitioners Exhibit # 2 for identification.
“CONCLUSIONS
Disciplinary Rule 1-102
‘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 administration of justice
“I conclude that Respondent did not engage in conduct involving dishonesty, fraud, deceit or misrepresentation. My analysis of the Respondents conduct, leads me to conclude that he did not make any statement about an existing fact which was false or about which he could not reasonably be mistaken. Nothing he did or did not do, in my opinion, was prejudicial to the administration of justice or adversely reflects on his fitness to practice law.
“I conclude that Respondent did not violate DR 1-102(A)(4)(5)(6)
Disciplinary Rule 6-101
‘Failing to Act Competently.
(A) A lawyer shall not:
(3) Neglect a legal matter entrusted to him.’
“I conclude the Respondent did violate this rule when he: 1.) Failed to respond to the inquiries of the Parole and Probation Officer who inquired about Maurer’s status. Respondent had advised Maurer not to comply with the court order to pay support. He was on both parole and probation in serious criminal cases. Having agreed to provide written confirmation of his advice to the supervising agent, Respondent’s neglect to do so, notwithstanding the repeated request, violated this Rule. 2.) Failed to notify the Bureau of Support Enforcement of the status of this child and his advice to his client. He should have known that the Bureau, in the normal course of its operations, would seek to obtain sanctions against his client. Failure to contact them and advise them about his client’s position and the advice he had given violated this Rule.
“I conclude that Respondent violated DR 6-101(A)(3)
Disciplinary Rule 7-101
‘Representing a Client Zealously.
(A) A lawyer shall not intentionally:
(2) Fail to carry out a contract of employment entered into with a client for professional services, but he may withdraw as permitted under DR 2-110, DR 5-102, and DR 5-105.
(3) Prejudice or damage of his client during the course of the professional relationship, except as required under DR 7-102(B).’
“I conclude that Respondent did not violate this rule because I can find no evidence that he intentionally failed to seek the lawful objectives of his client or intentionally failed to carry out his contract of employment. Bar Counsel, in argument, abandoned the charge of prejudice or damage. Although I conclude that some of his advise was incorrect, I believe that he intended to represent his client as best he could.
“I conclude that Respondent did not violate DR 7-10I(A)(1)(2)(3).”
Sinclair excepted to Judge Bowen’s findings that he violated Rule 6-101(A)(3) on the ground that the charges were not sufficiently specific to inform him of the misconduct with which he was charged, as required by Rule BV9 c. We disagree. We think the disciplinary petition sufficiently apprised Sinclair of the misconduct with which he was charged.
After careful consideration of the evidence in the case, we agree with Bar Counsel’s recommendation that a public reprimand is the appropriate sanction. See Attorney Griev. Comm’n v. Montgomery, 296 Md. 113, 460 A.2d 597 (1983); Attorney Griev. Comm’n v. Askin, 285 Md. 302, 402 A.2d 486 (1979); Attorney Griev. Comm’n v. Demyan, 278 Md. 240, 363 A.2d 966 (1976).
IT IS SO ORDERED: RESPONDENT SHALL PAY ALL 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 JOHN HOWELL SINCLAIR.
Dissenting Opinion
dissenting:
The majority concludes, and I agree with the conclusion, that Sinclair violated DR 6-101(A)(3) by advising his client to ignore the court order to pay support, by failing to notify the Bureau of Support Enforcement of this advice and of the status of his client’s child, and by failing to provide sufficient notification of his client’s position to the probation officer. In my view, however, the majority is incorrect in holding that a reprimand is the appropriate sanction. Rather, I believe that Sinclair should be subjected to the same sanction as this Court imposes today in the case of Attorney Griev. Comm’n v. Maraño, 299 Md. 633, 474 A.2d 1332, namely suspension from the practice of law in Maryland for a thirty-day period.
I see no difference between the seriousness of the misconduct found in Sinclair and that found in Maraño so as to warrant a reprimand in the former case and a thirty-day
Sinclair’s client, Maurer, obtained professional services for two purposes: to gain custody of his child from his ex-wife and to terminate his support obligations. To date, custody of the child remains with the mother. In addition, while Maurer has been released from his duty to pay support, this only was achieved after a warrant was issued for Maurer’s arrest. Thus, despite the trial judge’s conclusion to the contrary, Maurer suffered injury as a result of his attorney’s negligent conduct.
The following facts are particularly relevant. Sinclair failed within the required time period to serve Maurer’s ex-wife with a Rule to Show Cause because, according to Sinclair, her whereabouts were unknown. Nevertheless, four days after the final deadline for service, Maurer’s ex-wife appeared in Sinclair’s office to sign an amended separation agreement giving custody to Maurer. However, because Sinclair failed to secure court approval of the agreement, legal custody remained with the mother. Sinclair further jeopardized his client’s attempt to gain custody by failing to take an exception to the recommendation of the Domestic Relations Master denying the petition for immediate custody. Sinclair also was negligent in advising his client that he was no longer under a legal obligation to make support payments. Not only did Sinclair fail to secure a court order so stating, but he continued to advise his client to ignore notices from the Bureau of Support Enforcement informing him that his payments were in arrears. Furthermore, when Sinclair was questioned by Maurer’s probation officer, Sinclair assured the officer that the obligation had been terminated and that he would
When a client is unable to gain custody of his child and is almost hauled off to jail as a result of his attorney’s negligent representation, the attorney’s misconduct is as serious as that of an attorney whose negligence causes his client to lose the benefit of insurance proceeds. Thus, I can not agree with the majority’s conclusion that Sinclair should receive a reprimand while Maraño receives a suspension from the practice of law. I find no principled basis for the different sanctions imposed by the majority in the two cases. In my view, the appropriate sanction for Sinclair, as for Maraño, is suspension from the practice of law for a period of at least thirty days.
Reference
- Full Case Name
- ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. John Howell SINCLAIR
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- 9 cases
- Status
- Published