Feldman, Robert

English

bepress Legal Repository

Recent Developments: Attorney Grievance Commission v. Gilbert: Attorney Disbarred for Failure to Disclose Material Information on His Bar Application

University of Baltimore School of Law

University of Baltimore Law ForumVolume 17Number 3 Spring, 1987 Article 141987Recent Developments: Attorney GrievanceCommission v. Gilbert: Attorney Disbarred forFailure to Disclose Material Information on His BarApplicationRobert FeldmanFollow this and additional works at: http://scholarworks.law.ubalt.edu/lfPart of the Law CommonsThis Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion inUniversity of Baltimore Law Forum by an authorized editor of ScholarWorks@University of Baltimore School of Law. For more information, pleasecontact snolan@ubalt.edu.Recommended CitationFeldman, Robert (1987) "Recent Developments: Attorney Grievance Commission v. Gilbert: Attorney Disbarred for Failure toDisclose Material Information on His Bar Application," University of Baltimore Law Forum: Vol. 17 : No. 3 , Article 14.Available at: http://scholarworks.law.ubalt.edu/lf/vol17/iss3/14because of intoxication but nevertheless escorted the employee to a motor vehicle and allowed him to drive away could be negligent." The Texas Supreme Court al-lowed the suit because in their view the employer had "failed to exercise reason-able care to avoid injury to third persons." (/d. slip op. at 7). The Court of Special Appeals of Mary-land in their opinion initially noticed the similarity between the appellants' cause of action and Kelly v. Gwinnell, 96 N.J. 538, 4 76 A.2d 1219 ( 1984), a case decided by the Supreme Court ofNew Jersey. After stating the issue of whether an employer who negligently "promotes and permits the intoxication of an employee at the employ-er's premises during business hours and in the course of an employer's party, and know-ingly allows the intoxicated employee to drive from his employment and negligently collide with and kill another" can be held liable, the court examined the line of cases preceding the Kelly holding. Kelly stood for the proposition in New Jersey that a host at a party could be liable to a third party for actions of "a person who was drunk and who subsequently, in a motor vehicle colli-sion, negligently injured the third party." (/d. slip op. at 3). The court in the case at bar clearly rejected such an application of the Kelly holding in Maryland, stating that Kelly did not suddenly appear, but "was the end product of a progression of deci-sions." /d. slip op. at 3. See Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1 (1959); Soronen v. Olde Milford Inn, Inc., 46 N.J. 582, 218 A.2d 630 ( 1966); Linn v. Rand, 140 N.J.Super. 212, 356 A.2d 15 (1976). The court continued that such an adoption would be "out-of-the-blue", and not war-ranted because the general progression of cases preceding the Kelly decision in New Jersey, are not present in Maryland. Fur-ther, Maryland has "not adopted Kelly nor has it seen fit, either judicially or legisla-tively, to embrace a dram shop law action." See Felder v. Butler, 292 17 4, 438 A.2d 494 ( 1981 ); State v. Hatfield, 197 Md. 249, 78 A.2d 754 (1951); Fisherv. O'Connor's, Inc., 53 Md.App. 338, 452 A.2d 1313 (1982). Continuing, the court opined that Fisher had specifically rejected the New Jersey decision in Rappaport, 53 Md.App. at 340, and that other jurisdictions shared the Maryland view. The court then examined the argument presented by the appellants regarding the "special relationship." Although the court acknowledged that the Court of Appeals of Maryland in Ashburn v. Anne Arundel County, 306 Md. 617, 510 A.2d 1078 (1986), and Lamb v. Hopkins, 303 Md. 236, 492 A.2d 1297 ( 1985), had adopted the principle that there is no liability to a third person absent a "special relationship" with a clear right to control, the court in Kuykendall found that there was "nothing in the matter sub judice to suggest that Top Notch had a right to control Wilke's ac-tions after business hours." (/d. slip op. at 6). In applying settled Maryland case law, the court found a number of factors for not imposing liability on the employer, Top Notch. The court stated that "for an employer to be vicariously liable for the acts of an employee, the employee must be acting within the scope of his or her em-ployment." Dhanraj v. Pepco, 305 Md. 623, 506 A.2d 224 (1986); Watson v. Grimm, 200 Md. 461,90 A.2d 180 (1951). First, the court found that the appellants had not indicated in their complaint that Wilkes was acting within the scope of his employment when the collision occurred. Second, the accident took place off the business premises, after working hours, and Wilkes was operating his own vehicle. Third, the court reasoned since the party was not mandatory, the party could not have been furthering a business purpose of the employer, and therefore the employer could not be held vicariously liable for the acts of its employee, Wilkes. /d. slip op. at 7. When the court examined the second argument of the appellants it noted that Otis apparently followed a California case, Brockett v. Kitchen Boyd Motor Co., 264 Cal.App. 2d 69, 70 Cal.Rptr. 136 (1968). The California court found that "affirma-tive acts" of the employer, and ordering him to drive home "imposed a duty on the employer to exercise reasonable care." /d. slip op. at 8. The Court ofSpecial Appeals of Maryland then distinguished the Otis and Brockett cases, by examining Pinkham v. Apple Computer, Inc., 699 S.W.2d 387 (Tex.App. 1985). Pinkham dealt with an employee at a company cookout. The court there in holding for Apple Com-puter, Inc. found that the company did not take any affirmative acts. Similarly, the Court of Special Appeals of Maryland found that Top Notch took no affirmative act with respect to Wilke's operation of a motor vehicle. /d. slip op. at 9. In addition to examining the appellants' arguments, the court examined the legisla-tive intent in expressly not establishing a dram shop act. The court stated that the legislature, not the courts, should create such an act. The court pointed out that re-cent annual meetings of the General As-sembly had not deemed such an act neces-sary. One explanation offered by the Court of Special Appeals of Maryland was the illogic of holding an employer liable when an employee voluntarily becomes intoxi-cated and then injures a third party while liquor licensees, those in the business of dispensing alcoholic beverages, are not civilly liable to injured third persons. See Felder v. Butler, 292 Md. 174, 438 A.2d 494 (1981); Fisher v. O'Connor's, Inc., 53 Md.App. 338, 452 A.2d 1313 (1982). The Court of Special Appeals of Mary-land has declined the opportunity to expand the law to allow the recovery of damages from employers under the circumstances of this case, which might have been called "The Employers' Dram Shop Law." The lack of an affirmative act by Top Notch, or a showing of vicarious liability by the ap-pellants was decided by the court to leave the question of imposing such liability on employers in the hands of either the Gen-eral Assembly or the Court of Appeals of Maryland in its role as "law giver". -Robert L. Kline, III Attorney Grievance Commission v. Gilbert: ATTORNEY DISBARRED FOR FAILURE TO DISCLOSE MATERIAL INFORMATION ON HIS BAR APPLICATION In Attorney Grievance Commission v. Gilbert, 307 Md. 481, 515 A.2d 454 ( 1986), Gilbert was disbarred due to his failure to disclose, what the court con-sidered, material information on his bar application. The court of appeals rendered this extreme sanction because of the seri-ousness of Gilbert's misconduct, which re-flected on his fitness to practice law. The nondisclosed item was Gilbert's answer to question ten on his 1980 ap-plication. Question ten required: "a complete list of all suits in equity, actions at law, suits in bankruptcy or other statutory proceedings, matters in probate, lunacy, guardianship, and every other judicial or administrative proceedings of every nature and kind, except criminal proceedings to which I am or have ever been a party. (If 'NONE' so state)." Gilbert at 457. The answer given was "NONE". In reality, Gilbert had filed a civil suit in the Circuit Court of Baltimore County on June 4, 1970 to recover the benefits of two in-surance policies on his wife's life, which he obtained three months prior to her mur-der. The problem with the nondisclosure, which made it material, was that Gilbert was found in the civil trial to have had a part in the murder, consequently he was denied recovery. Specifically, Judge Proc-tor, who heard the civil trial, commented in his opinion that "[T]he evidence is over-whelming that Gilbert intentionally caused the death of his wife in order to reap the Spring, 1987/The Law Forum-27 harvest, namely the proceeds of these two life insurance policies .. . "Gilbert at 459. Afterwards Judge Raymond G. Thieme, Jr. of the Circuit Court for Anne Arundel County held evidentiary hearings pursuant to Md Rule BV9 and used Judge Proctor's findings to conclude that Gilbert purpose-fully failed to disclose the civil suit and this nondisclosure was material so as to violate DR 1-lOl(a) and DR 1-102 & (4) of the ABA Model Code of Professional Re-sponsibility. A judge's factual findings are prima facie correct and will not be changed unless clearly erroneous. Attorney Griev-ance Comm. v. Kemp 303 Md. 664, 674, 496 A.2d 672 (1985). The court of appeals indicated that a person with a law degree should be able to read question ten as clearly asking for any and all involvement in civil litigation and dismissed Gilbert's claim that he had misread the question. Gilbert was not a novice with the court system as he had confrontations with the law on many occassions during a six month period in 1967. During this period, Gilbert "was charged with conspiracy to commit forgery, forgery and uttering, murder and accessory to murder, homicide and as-sault." Gilbert at 455. Out of these charges he was adjudicated guilty for forgery and uttering and he was imprisoned between November 1970 and August 1972. Shortly after these charges, Gilbert was arrested for the murder of his wife on June 4, 1967. On March 13, 1969, Gilbert and his sister were indicted for murder and conspiracy to commit murder. When Gilbert's sister was acquitted, his charges were nol prossed on June 24, 1974. Gilbert finally graduated from law school in 1980 and completed the applica-tion in question on May 20, 1980. Shortly thereafter, Gilbert's petition "for expunge-ment of all the records associated with the nol prossed indictment for his wife's mur-der" was granted on June 23, 1980. Gilbert at 455. He passed the July 1980 Bar Ex-amination and the next step was the char-acter investigation to determine a can-didate's present moral fitness to practice law in Maryland. The initial committee (character com-mittee of the third judicial circuit), on Oc-tober 21, 1980, recommended unanimously not to grant admission. The State Board of Law Examiners, pursuant to Rule 4c, con-cluded by a 3-2 vote that Gilbert be ad-mitted since he had the present moral char-acter fitness to practice law. The weight used in these proceedings is clear and con-vincing evidence. See In re Application of James G., 296 Md. 310,462 A.2d 1198 (1983). In that case, the court looked at Gilbert's hardships through the years in-cluding "the birth of a Down's Syndrome 28-The Law Forum/Spring, 1987 child during his first marriage and the fact that his first wife [was murdered]." Gz1bert at 485. In determining his present moral character, the court noted that the history of criminal action occurred 16 years ago and was within a six month period. Also, the murder charge was nol prossed, and since 1981 Gilbert had practiced in the District of Columbia without incident. However, when the civil suit came to the attention of the Attorney Grievance Com-mission (AGC), they conducted evidentiary hearings and filed a petition for disciplinary action. Gilbert insisted his nondisclosure was neither purposeful or material. Judge Thieme thought otherwise for the follow-ing reasons: Gilbert's contention that the application was done in haste was discounted because by looking at the dates of his sig-natures it was determined that at least three days transpired before the application was submitted and the non disclosure of the civil suit was purposeful because Gil-bert had many opportunities to provide this information, but did not. The court of appeals found the context of the word "material" as used in DR 1-10 l(a) had never been previously defined in Maryland. The court used several anal-ogies to other areas of law such as sum-mary judgment-"whether the resolution of any material matter of fact may affect the outcome of the case," King v. Bankered 303 Md 98, 111, 492 A.2d 688 ( 1985); and insurance- an "ommission" is material ifit would affect the insurer's decision about providing insurance or evaluating the risk." Maryland Indemnity v. Steers, 221 Md. 380, 385, 157 A.2d 803 ( 1960). The court decided to adopt the definition that the Supreme Court of North Dakota applied in In re Howe, 257 N.W. 2d 420 (N.D. 1977), which dealt with the same rule as the case at bar. Their definition of a mate-rial omission is one that "has the effect of inhibiting the efforts of the bar to deter-mine an applicant's fitness to practice law." Id. at 422. Overall, the various stan-dards reflect on how the decision-making process is affected by a particular fact or representation. The court held that the nondisclosure of the civil suit enabled Gilbert to use his ex-pungement in a self-serving manner that "plainly inhibited efforts to assess Gilbert's present moral character fitness to practice law." Gilbert at 460. Therefore, the omis-sion was clearly material. Gilbert relied on In reApplication of G.L.S., 292 Md. 378, 439 A.2d 1107 (1982) where there was nondisclosure of a criminal conviction. However, that case is easily distinguishable because G.L.S. volunteered additional in-formation during the admission process unlike Gilbert. Gilbert's other contentions were also found to have no validity. Gilbert asserted that the civil suit had no bearing on the dis-ciplinary proceedings, but the court ruled it was relevant in determining whether the omission was deliberate which has a direct bearing on one's present moral character. Gilbert also complained that his mother, father and a witness from his earlier trial should have been allowed to testify at the hearing. However, the witness' veracity was not at issue so his testimony was prop-erly excluded. The only testimony allowed from Gilbert's parents was what state of mind Gilbert had as he worked on the ap-plication and at no other time. Further-more, Gilbert contends that the disciplin-ary hearings had the effect of convicting him of his wife's murder thereby denying him due process of law. However, this is misplaced because the findings did not determine guilt or innocence, but only had a bearing on his fitness to practice law. Thus, the court of appeals has provided some guidelines as to what they consider a material omission on a bar application. If this omission reflects on a candidates truth-fulness and candor, which is the most im-portant character qualification, AGC v. Levitt, 286 Md. 238, 406 A.2d 1298 (1979), then strong disciplinary action will be called for. To determine if a purposefully dis-honest omission or misrepresentation re-quires disbarment as the proper sanction, the court will mainly look to the severity of the misconduct and any compelling exten-uating circumstances. -Robert Feldman Department of Natural Resources v. Welsh: SOVEREIGN IMMUNITY DID NOT BAR ACTION TO QUIET TITLE In a recent decision, the Court of Appeals of Maryland held that: ( 1) sovereign im-munity did not bar action to quiet title based on the Department of Natural Re-sources' allegedly unconstitutional taking, and (2) that the department had not ac-quired interest in land belonging to plain-tiff's predecessors, who had not been named as parties in earlier condemnation proceeding. Dep't. of Natural Resources v. Welsh, 308 Md. 54, 517 A.2d 722 (1986). As a result of this decision, the Rocky Gap State Park in Allegany County has lost a thirty three acre tract of land. In 1983, W. Mitchell Welsh brought suit against the Department of Natural Resources to quiet title to land. Appar-ently, in 1966, the department obtained ti-tle to a 1,000 acre tract in Allegany County through a condemnation proceeding. The 

https://scholarworks.law.ubalt.edu/cgi/viewcontent.cgi?article=1439&amp;context=lf

Recent Developments: Attorney Grievance Commission v. Gilbert: Attorney Disbarred for Failure to Disclose Material Information on His Bar Application

Abstract

Similar works

Full text

Available Versions

bepress Legal Repository

University of Baltimore School of Law