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Attorney Grievance Commission v. Ficker3/10/1998
result of procedures that he put in place.
AGC has excepted to those findings and conclusions. As to Rule 5.1, it argues that the court reached inconsistent conclusions. In the Jordan case, discussed above, which involved a failure to appear in the Circuit Court for Frederick County on March 6, 1990, Judge Ferretti found that the failure arose from the lack of any procedure designed to avoid such lapses, and AGC maintains that the same finding should be made with respect to the Klein case. Such a finding, it continues, would establish a violation of Rules 3.4 and 8.4 as well. More specifically, it contends that the evidence showed that Ficker did not assign the case to Allen in a timely and proper manner. Klein was a serious case - a third offender to be tried before a jury - and neither Allen nor McClellan were prepared to try it.
We shall deny AGC's exceptions with respect to Rules 1.3., 3.4, and 8.4, but shall sustain the exception as to Rule 5.1. On the evidence before him, Judge Ferretti's finding that the Klein case had been assigned to Mr. Allen was not clearly erroneous. It was, therefore, Allen's responsibility to be present. Ficker in no way ratified Allen's failure to appear. He did not fail to act with reasonable diligence or to obey an obligation owed to the circuit court, and he therefore did not engage in conduct prejudicial to the administration of justice.
We do not agree, however, that there was no violation of Rule 5.1. Section (b) of that rule requires a lawyer having supervisory authority over another lawyer to "make reasonable efforts to ensure that the other lawyer conforms to the rules of professional conduct," and section (c) makes the supervisory lawyer responsible for the subordinate's violation if the supervising lawyer "knows of the conduct at a time when its consequences can be avoided or mitigated but failed to take reasonable remedial action."
As AGC points out, the Klein case cannot be viewed in a vacuum. Although what happened here is somewhat different from what occurred in Jordan, the two cases, together, demonstrate the gross deficiencies in Ficker's operation, deficiencies that almost guaranteed both kinds of problems. In Jordan, the problem was in assigning cases at the last minute to a novice attorney not capable, under the circumstances, of providing competent representation. Here, the problem was in assigning too many cases to too few lawyers, mostly at the last minute. Accepting The Honorable Judge Ferretti's finding that the case was, in fact, assigned to Allen, it becomes evident that Allen was scheduled by Ficker to be in two courts, in different counties, at the same time. When the problem was brought to the attention of Burfield - the person authorized by Ficker to deal with it - it was "resolved" by sending over to try the case a lawyer who knew nothing about the case, whose appearance had not even been entered, who had not ever met the client, and who did not even have the file. However bright and experienced the lawyer may be, that kind of system is not conducive to providing competent representation. When imposing it on young, inexperienced lawyers, the problem becomes exponentially worse.
Ficker essentially operated his practice like a taxicab company, with Williams or Burfield as the dispatcher. What he apparently, and inexcusably, failed to realize is that, while perhaps any competent taxi driver can transport a passenger from one point to another on a moment's notice, legal services cannot routinely be dispensed on that basis with an acceptable degree of competence. As the direct result of Ficker's practices, not only was the court inconvenienced but Klein was faced with the unacceptable prospect of ei
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