Important Maryland Cases: Fellner v. Bar Association of Baltimore City

By | June 27, 2012

Newer Maryland attorneys, this is the case to which the “old-timers” in your office may reference as the “slug” case. Every Maryland attorney needs to know this case.

In Fellner v. Bar Association of Baltimore City, 213 Md. 243 (1957), the Court of Appeals disbarred an attorney based upon proof that he had employed slugs as a means of stealing parking meter time from the City of Baltimore in a municipal lot. Fellner stands for two main propositions valid to this day:

1)  that a criminal conviction for conduct prejudicial to the administration of justice is not necessary to disbar an attorney for that conduct; and

2) even relatively small thefts or misappropriations of money or benefits/services valued in money may result in disbarment.

In Maryland, prosecutions of attorney discipline cases now occur before the Maryland Court of Appeals after a substantial administrative process before the Attorney Grievance Commission.  The Court of Appeals generally delegates the conduct of an evidentiary hearing to a Circuit Court.  Bar Counsel exists as a state agency.  These facts were not the case in 1957; at that time, local Bar Associations had standing to prosecute attorney discipline cases before courts of general jurisdiction.  Those courts would make not only findings of fact but also specific recommendations of discipline including disbarment in certain cases; the Court of Appeals would review the proceedings and the recommendations.

In Fellner, the Supreme Bench of Baltimore City (equivalent to a Circuit Court elsewhere in the State and today named the Circuit Court for Baltimore City) made a factual finding that Fellner had used slugs as a means of stealing parking time.  While the evidence was not absolutely clear, the logical conclusion based on the operation of the parking meter was that the last coin into the meter was a valid nickel, visible through an window on the meter known as a “Scotch Eye“, but that the motorist had used quarter-sized slugs to obtain parking time.  The meters charged 5 cents per hour; two quarter-sized slugs followed by a valid nickel would cost only 5 cents for 10 hours of parking (plus the price of the slugs, whose value was not determined.

Upon investigation of several slug incidents at the meter, motorist and attorney Fellner was arrested and the vehicle in question was registered to Fellner’s wife.  (The opinion did not identify the opinion of either Mr. or Mrs. Fellner.)  Mr. Fellner was charged with a violation of the Maryland Annotated Code, Art. 27 (the old Criminal Law article before recodification), section 74.  At the time, the articles and sections of the Annotated Code of Maryland were often numbered in alphabetical order, i.e. attorneys were covered in article 10, while crimes were covered in article 27, etc.  Apparently, this method did not appear self-evidently insane to prior General Assemblies of Maryland.  Most numbered articles have been recodified into topical articles, i.e. Criminal Law article, Transportation article, etc.  It is unclear from at-hand resources what precise crime section 74 defined, though I’d be grateful for any “old-timers” with a still-intact Article 27 who can so advise; I do not believe that it was theft/larceny itself but another crime.

Regardless, Fellner did not admit to the crime and was not convicted thereof either, but instead pled nolo contendere, certainly not the last Marylander to attempt that plea with mixed success.  Maryland law at the time provided for disbarment upon a conviction of a crime of moral turpitude.  The Court of Appeals noted, however, that it was not upon the court disposition itself but rather the testimony of the same witnesses in the disciplinary proceeding that supported a finding of conduct “prejudicial to the administration of justice” which phrase later became incorporated into Maryland Rule of Professional Conduct 8.4(d) (cognate to the ABA Model Rule.)  It was not the nolo contendere plea but the actual evidence itself that demonstrated conduct prejudicial.

In today’s misconduct rule 8.4, conduct that involves deception or deceit is misconduct even if it does not involve prejudice to the administration of justice, per se.  The Court of Appeals has, however, interpreted a number of forms of conduct as prejudicial to the administration of justice even if that conduct does not implicate either deceit or the court system itself, such as willful failure to file federal income tax returns.

Back to Fellner.  The Court also addressed the point regarding the arguably trivial size of the amount of damage to the Mayor and City Council of Baltimore and the severity of the sanction, namely disbarment.  Citing its prior Meyerson decision, the Court of Appeals reaffirmed that no “… moral character qualification for Bar membership’ is more important than truthfulness and candor.”  The Court noted that Mr. Fellner gave a fictitious name to law enforcement and denied in his disciplinary pleadings any involvement in the offense up through the disciplinary proceeds themselves, but was found with a bag of slugs inside the car in question.  Fellner refused to take the stand in the disciplinary hearing, however, a fact that the Court of Appeals noted as adverse to his disciplinary case since, unlike in a criminal proceeding, an attorney-respondent has no right to practice law or to remain silent within the attorney disciplinary context.  Finding the recommendation of the Supreme Bench well-reasoned and amply justified by precedent and evidence, the Court of Appeals disbarred Fellner.

This case is fairly well known as the “slug case” but Mr. Fellner’s bad acts included more than just stealing parking time with one 25 cent slug; he lied to the police, formed an apparent scheme by which to continue to steal parking time and refused to take the stand in his own defense at the disciplinary proceeding even after the Court had accepted a nolo contendere plea in his criminal case.  Fellner is still good law and the Court of Appeals has cited it many times even in recent decades (you can Shepardize the case to confirm this.)  The triviality of the size of the theft – literally mere coins’ value of parking time – did not in any way mitigate the wrongful character of the attorney’s acts.

If you have a law license, and especially if you supervise other attorneys’ conduct, you should read Fellner as, despite major procedural changes since 1957, it is still good law in this State.

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