Petition for Disciplinary Action JUDGE.
Murphy, C.J., and Smith, Eldridge, Cole, Davidson, Rodowsky and Couch, JJ. Eldridge, Judge, dissenting.
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.
He was ordered to make payments toward the support of this child through the Bureau of Support Enforcement in Prince George's County. He advised the Respondent that the mother would bring the child to him and leave him for extended periods leading Maurer to believe he would be given custody of his son, but then she would appear and demand the son be returned to her. At the time of this contact, the son was with Maurer but the mother was threatening to come get him again. Maurer was interested in getting the court order changed because while he was getting back the money he was paying through the Bureau of Support Enforcement (the mother would cash the check and give it back to him) she had begun to keep progressively larger amounts of it. The mother was getting her mail at her mother's address but living with a friend. According to Maurer he knew where she was all the time. According to Respondent he did not, and they could not get service on her. Respondent prepared a Petition to change custody and Rule to Show Cause thereon, which required service by October 5, 1979. This was never served. Respondent then prepared a second Petition asking for immediate custody only. When he presented this, the Master declined to recommend it be signed because Maurer actually had the child. Four or five days later, Respondent prepared an Amended Separation Agreement in which the custody was given to Maurer. This was signed by Maurer October 10, 1979 and the mother, October 9, 1979. Thereafter, Respondent told Maurer to stop making payments of child support. Respondent did nothing to notify the Bureau of Support Enforcement about this. When contacted by the probation officer who was supervising Maurer in two unrelated criminal cases, about the fact that Maurer seemed to be seriously delinquent in his support payments, Respondent agreed to send the officer a letter explaining the situation but never sent such a letter.
"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 kept getting notices that he owed child support from his probation officer and the Bureau Support Enforcement. Each time he told the Respondent, who advised him 'he would take care of it.' Late in 1981, a warrant was issued for his arrest stating arrearages of thirty five hundred dollars. There was, in fact, some confusion about this. Because the warrant was issued for failure to appear and Respondent had requested a continuance, the warrant was quashed and at a hearing in April, 1982, Maurer was relieved of responsibility for the arrearages. There was some evidence that proceedings are now underway to bring the question of support before the court again.
"Maurer's complaint against Respondent, in his own words, is 'I 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.
(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
(6) Engage in other conduct that adversely reflects on his fitness to practice law.'
"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 ...