ATTORNEY GRIEV. COM'N OF MARYLAND v. Myers

ROBERT M. BELL, Judge. The respondent, Howard Stuart Myers, was charged, in a petition for disciplinary action, filed by Bar Counsel, on behalf of the Attorney Grievance Commission, with violating Rules ⁴⁴² 3.3(a)(1) 1 and Rule 8.4(c) 2 of the Rules of Professional Conduct. The rules were violated, the petition alleged, by a response the respondent gave to a question posed by the District Court judge concerning his traffic record. Specifically, it averred that in response to the question, “if he had ever gotten a ticket before?” the respondent “falsely stated, under oath, that he had not had a ticket since he was 19 years old.” 3 The falsity of the statement was revealed when the District Court judge’s review of the respondent’s driving record via the computer terminal revealed “speeding violations of which respondent was found guilty on August 13,1987, August 24,1988 and June 7, 1990 with (1) current point.” A hearing was held on the petition at which the respondent testified.

The court concluded, “by clear and convincing evidence that Mr. Myers’ false and misleading testimony before Judge Wittstadt demonstrates a violation of Maryland Rules of Professional Conduct 3.3(a) and 8.4(c).” On the other hand, the court found “that since Mr. Myers did not know his driving record, and so testified, his responses to Judge Wittstadt were negligent or intentional misrepresentations and that the respondent knew he was being less than candid.” The court also found that, despite the testimony of a forensic ⁴⁴³ psychiatrist called by the respondent, the respondent’s conduct was not caused by any adjustment disorder. 4 On the first time this matter was before this Court, the respondent excepted to the hearing court’s findings of fact, arguing that it had equivocated as to whether his representations were intentional or negligent. The respondent maintained that this, in and of itself, was proof positive that there was no clear and convincing evidence that his misrepresentations were, in fact, intentional. Rather than dismiss the charges, as the respondent urged we do, we remanded the case to the hearing court “for a factual determination of whether the statements, which [it] found were false and misleading, were negligently uttered or constituted intentional misrepresentations.” On remand, the hearing court conducted a further hearing. At that hearing, the respondent testified that he did not deliberately intend to deceive the trial judge when he misrepresented his driving record.

The hearing court found this testimony to be at variance with the respondent’s prior testimony admitting that he did not know what his record was before representing the number of points he had on his driver’s record. In its “Supplemental Findings and Conclusions of Trial Court,” therefore, the hearing court found, “based on clear and convincing evidence, that Mr. Myers did deliberately misrepresent his record to Judge Wittstadt in the District Court when he said to him that he had no points on his driving record.” I. The respondent has filed an exception. He maintains that there is a fatal variance between the charge that was actually brought by Bar Counsel and that which was authorized by the ⁴⁴⁴ Review Board. 5 The disciplinary petition, the respondent points out, alleged: 3. After the guilty finding Judge Wittstadt asked the Respondent about his driving record. 4.

Respondent falsely stated, under oath, that he had no points. 6 On the other hand, the respondent finds significant that the complaint made by Judge Wittstadt referenced, not a misrepresentation of the number of points the respondent had, but rather whether he had any traffic violations since he was 19 years old and that neither the Inquiry Panel nor the Review Board found that he misrepresented the number of points he had. The Inquiry Panel found “that the Respondent intentionally misrepresented his driving record to Judge Wittstadt ... while under oath.” Because the Review Board adopted that finding, while making no other, and on that basis authorized the filing of charges, the respondent submits that he was improperly charged by Bar Counsel; he should not have been charged with falsely stating that he had no points, that conduct being “additional conduct which had not been the subject of recommendations by either the Inquiry Panel or Review Board.” He urges dismissal of the petition.

II

To be sure, as the petitioner recognizes, attorneys charged with misconduct must be afforded the “basic elements of due process — notice and the opportunity to defend in a full and fair hearing.” Att’y Griev. Comm’n v. Stewart, 285 Md. 251, 259 , 401 A.2d 1026, 1030 (1979), citing Bar Ass’n of ⁴⁴⁵ Baltimore v. Posner, 275 Md. 250, 255, 339 A.2d 657, 659-60 , cert. denied 423 U.S. 1016 , 96 S.Ct. 451 , 46 L.Ed.2d 388 (1975); Maryland State Bar Ass’n v. Frank, 272 Md. 528, 538, 325 A.2d 718, 723-24 (1974). “Of course, due process considerations dictate that attorneys are entitled to notice of the charges against them when disciplinary proceedings begin.” Att’y Griev. Comm’n v. Goldsborough, 330 Md. 342, 352 , 624 A.2d 503, 508 (1993), citing In re: Ruffalo, 390 U.S. 544, 550-51 , 88 S.Ct. 1222, 1226 , 20 L.Ed.2d 117, 122 (1968). Rule BV9C reflects that concern.

Its requirement that “[t]he charges ... be sufficiently clear and specific reasonably to inform the attorney proceeded against of any misconduct charged” is designed to insure that the attorney is afforded notice and the opportunity to defend him or herself against the charges. The notice to which the attorney is entitled is of the factual allegations against which the attorney must defend. Att’y Griev. Comm’n v. McBurney, 282 Md. 116, 123-24 , 383 A.2d 58, 62-63 (1978).

Thus, while “it is the ‘complaint that an attorney has committed an act of misconduct,’ ie., the operative facts alleged by the complainant as constituting the misconduct, that is referred to the Inquiry Panel,” Att’y Griev. Comm’n v. Keister, 327 Md. 56, 68 , 607 A.2d 909, 915 (1992), it is the factual allegation the Inquiry Panel finds reason to believe and as to which the Review Panel directs charges be filed, of which the attorney must be informed and against which he or she must defend. Once directed to do so, Bar Counsel frames the formal charges. He is not, however, required simply to parrot the Review Board.

All that is required is that the charges filed reflect the factual basis for which authorization was given. In this case, the charges brought by Bar Counsel focused on the respondent’s driving record. So, too, did the letter from Judge Wittstadt and the findings of the Inquiry Panel, which the Review Board adopted. An intentionally false response to a question concerning whether a driver has points on his or her record is as much a misrepresentation of that driver’s record as an intentionally false statement made in answer to a question concerning when the driver last received a traffic ⁴⁴⁶ ticket.

Moreover, the Wittstadt letter enclosed a tape of the District Court proceedings. Thus, notwithstanding Judge Wittstadt’s specific reference to the respondent’s comments concerning when last he received a ticket, “the operative facts alleged ... as constituting the misconduct” included both the letter and the tape of the proceedings. Consequently, Bar Counsel’s letter to the respondent defining the scope of the Inquiry Panel’s task appropriately focused on the respondent’s driving record. And it was that general focus, not whether the respondent misrepresented the number of points he had, that both the Inquiry Panel and the Review Board maintained throughout their respective proceedings.

In short, what was being inquired into was whether the respondent intentionally misrepresented his driving record. Falsely stating that he had no points was one way of making such a misrepresentation. While, as the respondent correctly observes, we have said that “Bar Counsel may, file only such charges, supported by the facts found, as are ‘directed’ by the Review Board [but wjhere ... the Review Board does not direct, either expressly or implicitly, its filing, a respondent may challenge that charge at anytime,” Keister, 327 Md. at 73 , 607 A.2d at 917 , in this case, there is no basis for a challenge. 7 The respondent’s exception is overruled. We now proceed to consider the appropriate sanction for the conduct which the hearing judge found to have been proven by clear and convincing evidence.

III

It is well-settled that the purpose of disciplinary proceedings is to protect the public rather than to punish the erring attorney. Att’y Griev. Comm’n v. Goldsborough, 330 ⁴⁴⁷ Md. at 364, 624 A.2d at 513 ; Att’y Griev. Comm’n v. Protokowicz, 329 Md. 252, 262-63 , 619 A.2d 100, 105 (1993); Att’y Griev.

Comm’n v. Myers, 302 Md. 571, 580 , 490 A.2d 231, 236 (1985); Att’y Griev. Comm’n v. Velasquez, 301 Md. 450, 459 , 483 A.2d 354, 359 (1984); Att’y Griev. Comm’n v. Montgomery, 296 Md. 113, 119 , 460 A.2d 597, 600 (1983). We have recognized that the public interest is served when this Court imposes a sanction which demonstrates to members of the legal profession the type of conduct that will not be tolerated.

Att’y Griev. Comm’n v. Kerpelman, 288 Md. 341, 382 , 420 A.2d 940, 959 (1980), cert. denied, 450 U.S. 970 , 101 S.Ct. 1492 , 67 L.Ed.2d 621 (1981). Moreover, such a sanction represents the fulfillment by this Court of its responsibility “to insist upon the maintenance of the integrity of the bar and to prevent the transgression of an individual lawyer from bringing its image into disrepute.” Maryland St. Bar Ass’n v. Agnew, 271 Md. 543, 549 , 318 A.2d 811, 814 (1974). Therefore, the public interest is served when sanctions designed to effect general and specific deterrence are imposed on an attorney who violates the disciplinary rules.

See Protokowicz, 329 Md. at 262-63 , 619 A.2d at 105 ; Att’y Griev. Comm’n v. Owrutsky, 322 Md. 334, 355 , 587 A.2d 511, 521 (1991); Att’y Griev. Comm’n v. Alison, 317 Md. 523, 540-41 , 565 A.2d 660, 668 (1989). Of course, what the appropriate sanction for the particular misconduct is, in the public interest, generally depends upon the facts and circumstances of the case.

Att’y Griev. Comm’n v. Babbitt, 300 Md. 637, 642 , 479 A.2d 1372, 1375 (1984) (the facts and circumstances of a case will determine how severe the sanction should be); Montgomery, 296 Md. at 120 , 460 A.2d at 600 ; Att’y Griev. Comm’n v. Pollack, 289 Md. 603, 609 , 425 A.2d 1352, 1355 (1981). The attorney’s prior grievance history, as well as facts in mitigation, constitute part of those facts and