Attorney Grievance Comm'n v. Weinberg

Attorney Grievance Commission of Maryland v. Asher Newton Weinberg, AG No. 1, September Term 2022. Opinion by Eaves, J. ATTORNEY DISCIPLINE – SANCTION – INDEFINITE SUSPENSION The Supreme Court of Maryland found that, in his representation of a client in a criminal matter, Respondent: (1) made false statements in pleadings with the court, regarding the victim’s ability to identify the client as the perpetrator of crimes against the victim; (2) knowingly and recklessly made false statements that impugned the integrity of various judges who conducted proceedings in the criminal case against his client; and (3) in committing the aforementioned acts, committed misconduct that had the potential to bring the legal system into disrepute. The Supreme Court concluded that Respondent violated the following Maryland Attorneys’ Rules of Professional Conduct: 3.3 (Candor Toward the Tribunal), 8.2 (Judicial and Legal Officials), and 8.4 (Misconduct). The Supreme Court concluded that the appropriate sanction is an indefinite suspension with the right to apply for reinstatement after six months from the beginning of the period of suspension.

Circuit Court for Montgomery County Case No. C-15-CV-22-001132 Argued: May 5, 2023 IN THE SUPREME COURT OF MARYLAND* AG No. 1 September Term, 2022 __________________________________________ ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. ASHER NEWTON WEINBERG ___________________________________________ Fader, C.J., Watts, Hotten, Booth, Biran, Gould, Eaves, JJ. ___________________________________________ Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Opinion by Eaves, J. 2023-08-31 11:21-04:00 ___________________________________________ Gregory Hilton, Clerk Filed: August 31, 2023 * At the November 8, 2022, general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Appeals to the Supreme Court of Maryland. The name change took effect on December 14, 2022. On March 14, 2022, the Attorney Grievance Commission of Maryland (the “Commission”), acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action (the “Petition”) against Respondent, Asher N. Weinberg, a member of the Maryland Bar, arising out of his representation of Megan B. Lemons and Bar Counsel’s subsequent investigation.

The Commission alleged that Respondent violated the following Maryland Attorneys’ Rules of Professional Conduct (“MARPC”)1: • 19-301.1 Competence (1.1); • 19-301.2 Scope of Representation and Allocation of Authority between Client and Attorney (1.2); • 19-301.16 Declining or Terminating Representation (1.16); • 19-303.3 Candor Toward the Tribunal (3.3); • 19-303.4 Fairness to Opposing Party and Attorney (3.4); • 19-308.2 Judicial and Legal Officials (8.2); and • 19-308.4 Misconduct (8.4). Pursuant to Maryland Rule 19-722(a), this Court referred the matter to the Circuit Court for Montgomery County and designated the Honorable Kathleen M. Dumais (the “hearing judge”) to conduct an evidentiary hearing and make findings of fact and conclusions of law. After a two-day hearing held on December 12 and 13, 2022, the hearing judge found clear and convincing evidence that Respondent violated Rules 1.1; 1.2(d); 3.3(a)(1); 8.2(a); and 8.4(a), (c), and (d), as alleged by the Commission.2 The 1 Effective July 1, 2016, the Maryland Lawyers’ Rules of Professional Conduct, which employed the numbering format of the American Bar Association Model Rules, were renamed the MARPC and recodified without substantive modification in Title 19, Chapter 300 of the Maryland Rules. For ease of reference and comparison with our prior opinions and those of other courts, we will refer to the MARPC using the numbering of the model rules, as permitted by Rule 19-300.1(22). 2 Prior to the hearing, Bar Counsel withdrew the allegations that Respondent violated Rules 1.16(a)(1), 3.4(c), and 8.4(b). hearing judge also found four aggravating factors and four mitigating factors.

Bar Counsel recommends that Respondent be indefinitely suspended from the practice of law with a right to apply for reinstatement in one year. Respondent has filed exceptions to the hearing judge’s Findings of Facts and Conclusions of Law. For the reasons discussed below, we shall sustain Respondent’s exceptions to Rules 1.1 and 1.2, overrule Respondent’s exceptions to Rules 3.3, 8.2, and 8.4, and indefinitely suspend Respondent with the right to apply for reinstatement after six months from the beginning of the period of suspension. I HEARING JUDGE’S FINDINGS OF FACT The hearing judge found that Respondent was admitted to the Bar of the Supreme Court of Washington in 2003 and, in his first year as a lawyer, he was a full-time volunteer and operated several legal clinics in Tacoma, Washington.

He then worked as a public defender in Yakima County, Washington, for approximately five years. After that, Respondent worked for the Confederated Tribes and Bands of the Yakama Nation “representing tribal members and focusing mostly on criminal law.” On July 30, 2013, Respondent was admitted to the Maryland Bar. The hearing judge found that, over the course of Respondent’s career in Washington and in Maryland, he has handled “hundreds and hundreds” of criminal cases. A. Representation of Megan B. Lemons On November 15, 2019, Megan B. Lemons was charged with armed robbery and related offenses that occurred at a 7-Eleven in Anne Arundel County on October 15, 2019.

Important to the State’s case against Ms. Lemons was the identification of the alleged 2 robber by Kaija Hirsch, a cashier at the 7-Eleven. At the time of the robbery, Ms. Hirsch was behind the check-out counter when an unknown woman approached her, asking to buy an item located behind the counter. As Ms. Hirsch turned to retrieve the item, the woman knocked Ms. Hirsch to the ground. Once Ms. Hirsch was on the ground, the woman jumped over the counter and held a knife to Ms. Hirsch’s throat.

The woman proceeded to take money out of the cash register before fleeing on foot. Shortly thereafter, the police questioned Ms. Hirsch about the identity of the robber. Ms. Hirsch described the robber as a “White female with olive toned skin[,]” and a wide build, standing somewhere between 5’ 7” to 5’ 8” tall. Additionally, the police posted a still photo taken from the 7-Eleven’s security camera online, asking the public to help identify the suspect.

Eventually, a police investigation led to Ms. Lemons being identified as the purported robber. She was arrested in Virginia and extradited to Maryland. On January 27, 2020, a bond review hearing was held in the District Court of Maryland for Anne Arundel County before the Honorable Danielle M. Mosley. Judge Mosley ordered that Ms. Lemons be held without bond and imposed several special conditions, including the condition that Ms. Lemons not contact or harass Ms. Hirsch.

One month later, a grand jury sitting in Anne Arundel County indicted Ms. Lemons and her case was transferred to the Circuit Court for Anne Arundel County. The transfer order included Ms. Lemons’ regular bond conditions and the special condition that she have no contact with Ms. Hirsch. After the case was transferred to the circuit court, Respondent entered his appearance on February 23, 2020, on behalf of Ms. Lemons. A few days after doing so, he filed a Motion to Review and Reduce Bond.

The circuit court held a hearing on March 3 6, 2020, at which the Honorable Robert J. Thompson ordered that Ms. Lemons be released on home detention with the condition that she be allowed to travel for “legal, medical, and home detention appointments only.” During the disciplinary hearing, Respondent claimed that because Judge Thompson did not include the special condition that Ms. Lemons have no contact with Ms. Hirsch in the home detention order, it was Respondent’s understanding that “[Judge Thompson] was striking” the no-contact order. The hearing judge found, however, that Judge Thompson did not alter or strike the no-contact order imposed upon Ms. Lemons by Judge Mosley. Throughout Respondent’s preparation of Ms. Lemons’ case for trial, he consistently asserted that the police wrongly identified Ms. Lemons as the robber and that she, therefore, was innocent. In an email to Glen Neubauer, the Assistant State’s Attorney assigned to the matter, Respondent stated, in pertinent part: I have left another message for the detective, even though he has yet to ever return one of my calls.

I want him to come down to the hospital, or I will drive Megan there to meet him. Someone from your side should actually meet her in person, and compare her to the person in the video. If he won’t meet us, i will contact the [Ms. Hirsch], and ask her to meet us, and see if she recognizes Megan. If you have another idea, let me know. * * * Brian,[3] feel free to contact me by phone or e-mail.

I will continue to try to get a hold of the detective. 3 “Brian,” who was copied on the email to Mr. Neubauer, is Brian Marsh, a Deputy State’s Attorney and Mr. Neubauer’s supervisor in the State’s Attorney’s Office for Anne Arundel County. 4 (All sic in original). Mr. Neubauer did not respond to the email, so Respondent reached out to Ms. Hirsch directly and sent her the following text message: Ms. Hirsch. My name is Asher Weinberg. I am investigating the 7-11 robbery where you were the victim.

If you are available to talk, please call or text me. Or, if you have an email address, I would like to send you some photos, and see if you recognize the person as the robber. I would also like to find out more information about the height of the woman in relationship to you. Thank you.

Ms. Hirsch responded to the text message, and, in the following week, the two began communicating about the robbery via text messages and phone calls. During one of the text-message exchanges, Respondent sent Ms. Hirsch several photographs of different women and asked whether she could identify any of the women as the robber. Ms. Hirsch told Respondent that she could not give him a definitive answer. Eventually, Respondent set up an in-person meeting between Ms. Hirsch and Ms. Lemons, and he sent the following text message to Ms. Hirsch: Megan can no longer afford to be on the ankle bracelet, which means she may need to turn herself back into jail on Monday.

If you could meet with us tomorrow or Friday, that would be very helpful! I can drive her down to wherever you want, at anytime you want. I hate to be pushy but with Covid, the courts are not having any trials until probably November or December, and if she id truly innocent, I don’t want her sitting in jail until then. Thank you.

(All sic in original). In response, Ms. Hirsch agreed to meet with Ms. Lemons. On June 5, 2020, Respondent personally transported Ms. Lemons to an agreed-upon location. In total, the meeting lasted 15 minutes, and Respondent, Ms. Lemons, Ms. 5 Hirsch, and a friend of Ms. Hirsch were present.

During that time, Respondent questioned Ms. Hirsch about the description of the robbery suspect. Although Ms. Hirsch observed that the robber was closer to the height of the Respondent than to Ms. Lemons’ height, Ms. Hirsch still definitively could not rule out Ms. Lemons as the suspect. At his disciplinary hearing, Respondent testified that, although he did not specifically ask Ms. Hirsch that question, Ms. Hirsch did not tell him that Ms. Lemons was not the robber. Two days after the meeting, Respondent texted Ms. Hirsch the following: “Good evening.

I am filing a motion tomorrow to try and get [Ms. Lemons] release. May I say that when we meet, you could not identify her as your attacker? Would that be accurate?” (All sic in original). Ms. Hirsch did not respond to this text message.

Respondent then called Ms. Hirsch, but she was unable to give a definitive answer as to whether she could identify Ms. Lemons as the robber. Ms. Hirsch was, however, able to say that she perceived the robber to be taller and heavier than Ms. Lemons. The hearing judge found that, based on [Ms. Hirsch’s] testimony and the copies of the written communications, at no point did Ms. Hirsch tell Respondent that Ms. Lemons was not the individual who committed the robbery or give him consent to make that representation on her behalf. In accepting Ms. Hirsch’s testimony in its entirety, the Court finds that during her verbal and written exchanges with the Respondent, she never gave the Respondent a definitive answer as to whether Ms. Lemons was the individual who committed the robbery.

Ms. Hirsch testified consistently that, at the time of the robbery, she perceived the robber to be taller and heavier because of the terror she felt being robbed at knifepoint. The Court credits Ms. Hirsch’s testimony that she was never certain about the robber’s identity and never made any affirmative statements to the Respondent regarding whether Ms. Lemons was or was not the individual who committed the robbery. 6 B. Respondent Files Various Motions with the Circuit Court for Anne Arundel County Continuing to believe that Ms. Lemons was misidentified as the robber, Respondent filed with the circuit court a “REQUEST FOR HEARING IN JUNE BEFORE DEFENDANT BECOMES HOMELESS AND IS LIVING ON THE STREET IN ORDER TO DETERMINE WHETHER PROBABLE CAUSE STILL EXISTS TO HOLD MS. LEMONS” (the “Motion” or “June 18 Motion”). In the Motion, Respondent argued that the State did not have probable cause to continue its detention of Ms. Lemons.

In support of his proposition, Respondent represented to the court that Ms. Hirsch “will testify that after seeing [Ms. Lemons] in person, she is 100% positive that [Ms. Lemons] was NOT the robber.” At the disciplinary hearing, however, Respondent admitted that Ms. Hirsch never made that statement and “never conveyed to him that she would testify that Ms. Lemons was not the robber.” Thus, the hearing judge found that Respondent knowingly and intentionally misrepresented that Ms. Hirsch would testify with 100% certainty that “Ms. Lemons was NOT the robber.” Shortly after filing the Motion, Respondent filed a Petition for Writ of Habeas Corpus4 (“Habeas Petition”), asking for Ms. Lemons’ release. In the Habeas Petition, Respondent claimed the following: 7. Defense Counsel arranged for Ms. Lemons and the victim of the robbery to meet. After meeting with Ms. Lemons, the victim spoke to Counsel by phone and stated with absolute certainty, Ms. Lemons was not the robber.

She is prepared to testify to this. 4 Respondent filed the Petition for Writ of Habeas Corpus in a civil case that was assigned Case No. C-02-CV-20-1400. 7 * * * 14. The victim of the robbery, Kaija Hirsch will testify that Ms. Lemons was not the robber. Because receipt of the Habeas Petition was the first time that the State became aware that Respondent had arranged for Ms. Lemons and Ms. Hirsch to meet, the State filed in response a request for the circuit court to inquire about the meeting. The court held a hearing before the Honorable Mark W. Crooks, in which the parties addressed the June 5, 2020, meeting between Respondent, Ms. Lemons, and Ms. Hirsch.

Judge Crooks expressed concerns about the meeting and the potential evidentiary issues that it may have created: [T]his Court finds that the original order controlled throughout the order that was put in place, which was a no contact order provision, and not withstanding Judge Thompson – presumably, it might have had to do with Covid, I don’t know, but had some habeas or bond review, and concluded that there were limited exceptions to the no bond house arrest to meet with counsel, and medical appointments, and that kind of thing. And this Court interprets that as being an umbrella that would have forced all of the ability – even that alone would have forced all the ability for the victim to meet with the Defendant, which in no case is appropriate. (Alteration in original). During the disciplinary hearing, Respondent acknowledged that he arranged the meeting and transported Ms. Lemons to the meeting location.

Respondent testified that, while making the arrangements for, and during, the meeting, he was operating under the assumption that the order for home detention superseded the initial order, as well as the restrictions imposed on Ms. Lemons, including the no-contact order. At the hearing, Respondent alternatively claimed that he was unaware of the no-contact order until the 8 hearing before Judge Crooks, stating that, “I don’t believe I had that knowledge [of the no- contact order] at that – when I brought [Ms. Lemons] to meet with Ms. Hirsch, I don’t believe I was aware that there was any kind of no-contact order in place.” The hearing judge did not find Respondent’s testimony credible and found that, “as of June 3, 2020, . . . Respondent knew or should have known the no-contact order was in place[]” and that he “assisted Ms. Lemons in violating the order.” The hearing judge further stated, [i]n addition to his inconsistent statements and evolving explanations, the Court has considered the Respondent’s extensive experience representing criminal defendants, and that it is standard for a court to issue a no contact provision between a victim and defendant in a criminal case. The Respondent had access to Ms. Lemons’ entire court file through the Maryland Electronic Court (“MDEC”) e-filing system, and, knowing of Ms. Lemons’ bond status and conditions, filed a Motion to Reduce Bond on February 27, 2020.

Following the hearing with Judge Crooks, the State filed on October 6, 2020, a motion in limine, arguing that Respondent’s presence at the meeting between Ms. Lemons and Ms. Hirsch made him a potential trial witness and that the court should “preclude [the defense’s] use of anything obtained at, or as a result of, the meeting [the Respondent] set up between [Ms. Lemons] and the victim, Kaija Hirsch.” (Second alteration in original). The Honorable Pamela K. Alban heard arguments on the State’s motion. Over Respondent’s objection, Judge Alban found that Respondent’s conduct violated the court’s no-contact order and that he made himself a potential witness for the State. Judge Alban stated the following: You committed – potentially committed a crime here by the initial interview with the victim and so based on that, and as I look at the interactions, the 9 results, I don’t need to rehash all of it again for you but the problem becomes that the effects of what occurs after your meetings, I think opens the door and allows Ms. (sic) Neubauer more latitude in cross examination and potential witness calling.

Thus, Judge Alban struck the Respondent’s appearance and directed the parties to then- County Administrative Judge, the Honorable Laura S. Ripken,5 for a hearing to postpone the trial. Judge Alban advised that, before Judge Ripken, Ms. Lemons could have the matter postponed or elect to proceed without counsel. Ms. Lemons opted to have her trial postponed to December 17, 2020, and a bond hearing was set for October 16, 2020. At the October 16 bond hearing, Ms. Lemons was represented by Maria E. Mena.

The parties appeared before Judge Ripken to review Ms. Lemons’ home detention status. Although he was no longer Ms. Lemons’ attorney of record, Respondent appeared in the courtroom’s gallery and attempted to address the court on behalf of Ms. Lemons. Judge Ripken denied his request to be heard and reminded him that his appearance had been stricken. At the conclusion of the hearing, Judge Ripken revoked the bond for Ms. Lemons and scheduled a further bond hearing to allow Ms. Lemons time to find another home monitoring company that she could afford and that would be acceptable to the court.

The subsequent bond hearing was held before the Honorable Richard R. Trunnell on October 19, 2020. Present at the hearing was Ms. Lemons, Ms. Mena, and the Respondent, who again was seated in the gallery of the courtroom. At the conclusion of the hearing, Judge Trunnell ruled that Ms. Lemons could be released from the Anne Arundel Detention Center to a private house arrest program to which she had been 5 Judge Ripken has since been elevated to the Appellate Court of Maryland. 10 accepted. Judge Trunnell directed the attorneys of record, Mr. Neubauer and Ms. Mena, to submit an order that comported with his ruling for his signature.

Following the hearing, however, Respondent used his personal email to send a proposed order for Ms. Lemons’ home detention monitoring to Judge Trunnell’s chambers. In response to that email, Judge Trunnell’s chambers sent Respondent a letter advising him not to contact his chambers regarding Ms. Lemons’ matter unless or until his appearance had been reinstated.6 Although he was no longer Ms. Lemons’ attorney of record, during the disciplinary hearing, Respondent told the hearing judge that he sent the proposed home detention monitoring order to Judge Trunnell’s chambers because he did not have access to a laptop to file the order using MDEC. He also stated that Ms. Mena, who is not well versed in using technology,7 dictated the order while he was typing it, and that she gave him permission to send the order on her behalf. The order, however, had the Respondent’s signature block.

Respondent also told the hearing judge that he had authority to send the order because Judge Alban had no authority to strike his appearance.8 6 Respondent attempted to be reinstated as Ms. Lemons’ attorney on two separate occasions. First, on October 14, 2020, Respondent filed a motion purportedly on behalf of Ms. Lemons, requesting that the court order “Attorney Asher Weinberg be recognized as Attorney for Defendant in this matter[.]” The court did not rule on the motion. Second, on October 22, 2020, Ms. Mena filed a motion requesting that the court reinstate Respondent as attorney for Ms. Lemons. The court denied the motion.

At the disciplinary hearing, Respondent testified that “Ms. Mena, she’s essentially 7 computer illiterate. I do a lot of her IT stuff. I’ll write emails for her [and] I’ll write some motions for her.” 8 Although the hearing judge found that, during the disciplinary hearing, Respondent repeatedly challenged Judge Alban’s authority to strike his appearance, that “question 11 C. Respondent Speaks to Ms. Hirsch After His Appearance Has Been Stricken Eventually, Ms. Lemons reached a plea agreement with the State and her case was scheduled for a hearing on February 5, 2021. A few days before the plea hearing, however, Respondent sent Ms. Hirsch one last text message about Ms. Lemons: Thank you for your honesty with the State.

You are now guilty of victimizing an innocent woman as the real robber is. I’m sure Glen [Neubauer] convinced you that megan was guilty, even though everyone who saw the video said it looked nothing like megan. But glen tried to cover that up. Megan has to take a plea to something she didn’t do to stay out of jail.

Thanks again. You can go to court on Friday morning and watch the “justice.” I’ll bet he told you “it’s for her own good. She needs the help.” Even though you know it wasn’t her, and never told him that. If the real robber kills her next victim, don’t bother feeling guilty.

(All sic in original). Ms. Hirsch provided a copy of that text message to Mr. Neubauer, and the State filed the next day a motion requesting that the court order Respondent not to have any contact with Ms. Hirsch or any other State’s witness. As the matter of State v. Lemons was resolved on February 5, 2021, with Ms. Lemons entering an Alford plea to second-degree assault and theft from $100 to $1,500, no further hearing was held on the State’s motion, and the court, therefore, did not issue a ruling. The hearing judge credited Ms. Hirsch’s testimony that Respondent’s final text message “hurt” because she thought she was “doing the right thing by trying to be honest [was] not before the Court.” Thus, the hearing judge did not make a finding of fact as to this particular point by Respondent. 12 and helping[] . . . figure out whether or not[] . . .

Megan was [the robber].” The judge also found that Respondent’s text was “inappropriate,” “[could] be considered harassing[,]” and “show[ed] extremely poor judgment.” D. Respondent’s Statements About Multiple Judges After the Conclusion of State v. Lemons Six months after the conclusion of State v. Lemons, Respondent made statements that the hearing judge found impugned the integrity of Judge Alban, the Honorable J. Michael Wachs, and the Honorable William C. Mulford II.9 First, Respondent made repeated statements about Judge Alban during an August 6, 2021, hearing in the case of State v. Delvon Harrod, II.10 Second, Respondent sent an email to the County Administrative Judge, the Honorable Glenn L. Klavans,11 repeating the statements he made about Judge Alban during the August 6 hearing and including statements about Judges Wachs and Mulford. Third, Respondent created a flyer with statements about Judges Alban and Wachs. As to all of these matters, the hearing judge found that “Respondent does not deny making the statements or that the statements impugned the integrity of Judge Alban, Judge Wachs, and Judge Mulford. Rather, he asserts the statements were true, though he offered no proof of the statements[.]” 9 Judge Mulford retired on February 14, 2022, and now sits as a Senior Judge. 10 This matter was before the Circuit Court for Anne Arundel County, Case No. C- 02-CR-18-002457. 11 Judge Klavans retired on April 19, 2023, and now sits as a Senior Judge. 13 1.

Respondent’s statements during the August 6, 2021, hearing On August 6, 2021, Respondent appeared before Judge Alban for a bond review hearing on behalf of the defendant in State v. Harrod. At the hearing, Respondent asked Judge Alban to recuse herself. In support of his request, Respondent stated the following: You[, Judge Alban,] are a liar, you are biased, you have demonstrated bias, you have stepped into the shoes of the State’s Attorney on occasion, you refuse to apply the law when it doesn’t suit your purposes or when you don’t agree with it. You are complicit in kidnapping and basically you are corrupt for a judge.

So I have to ask you that you recuse yourself. (All sic in original). Judge Alban denied Respondent’s request. Throughout the hearing, Respondent renewed his request for Judge Alban to recuse herself, repeating that Judge Alban was “a liar,” “biased,” “corrupt,” “complicit in kidnapping,” and improperly stepped “into the shoes of the State’s Attorneys” and that, therefore, Mr. Harrod, could not get a fair hearing.

Judge Alban again denied his request, and the hearing in the Harrod case resumed. The hearing judge found that the Respondent’s statements about Judge Alban “were not opinions and that they were made with reckless disregard as to their truth or falsity and that each of the statements impugned Judge Alban’s integrity.” 2. Respondent’s August 8, 2021, email correspondence with Judge Klavans On August 8, 2021, Respondent sent Judge Klavans an email that stated the following: Good afternoon, I am writing to request that a number of the Judges in your courthouse be permanently recused from any case I am named in, due to their corruption which has spread though rot in the judiciary of Anne Arundel Circuit Court. 14 Among these are: Pam Alban. While on the bench, she has lied, acted as a State’s attorney, demonstrated bias towards the state, and is complicit in kidnaping.

She also refuses to apply the law when it does not suit her personal beliefs, even thought the law was very clear on the issues at hand. When I asked her to recuse herself at my hearing, on Friday, she stated that she did not see any of that in her actions. That is either another lie, or more bias. Judge Wachs: His demonstrated bias against the Defense Bar, his hypocrisy, and his refusal to apply the law has caused permanent harm to my some of my clients.

Judge Mulford: His bias against me, his allowing, along with Pam Alban, State’s attorney to lie to the Court, and commit fraud upon the Court all remove him from the ability to be fair and impartial to me or my clients. Additionally, as part of my goal to expose the corruption within your Court, and to try and bring about a political action against them, I shall be distributing the attached flyer, or similar, in front of your courthouse on random morning and lunch times. Please help to protect my client’s constitutional rights, and what is left of the integrity of the Court in your country. (All sic in original).

In addition to the above, Respondent also claimed that Judge Alban allowed “[Mr. Neubauer] to lie to the Court [] and commit fraud upon the Court” as demonstrated by the Respondent’s testimony that Mr. Neubauer filed a response to the Respondent’s motion that did not cite case law and that, according to the Respondent, Mr. Neubauer stated that the witnesses in the Lemons matter all changed their positions regarding the identification of Ms. Lemons as the robber after speaking with the Respondent. (Alterations in original). 15 Judge Klavans responded to the email in which he explained that recusal is left to the individual judge. He denied Respondent’s request to permanently recuse Judges Alban, Wachs, and Mulford from hearing cases where he appeared as counsel. 3. Respondent’s August 2021 flyer Attached to Respondent’s email to Judge Klavans was a copy of a flyer he intended to circulate outside of the courthouse.

The flyer had photographs of Judges Wachs and Alban with an “X” superimposed over each of their images. Beneath each photograph were the words, “Bias, Lawless, Criminality[.]” In addition, the flyer included a link to a website named “AnneArundelCorruptCourts.com.”12 Also at the bottom of the flyer there was a tagline, “Anne Arundel Circuit Court – Where our Constitution Comes to Die[,]” and a QR code13 that directed users to a publicly available Change.org petition14 calling on former Maryland Governor Larry Hogan to recall Judges Wachs and Alban for “violat[ing] 12 It is not discernable from the record what the content of the website was. 13 “QR Code, in full Quick Response Code, [is] a type of bar code that consists of a printed square pattern of small black and white squares that encode data[.] QR Codes are often used in advertising to encode a URL of a Web site[.] QR Codes are usually read with . . . [the] camera on mobile telephones, which then use special software to decode the pattern[,]” allowing the user to go directly to the Web site. Erik Gregersen, QR Code, Britannica (April 03, 2023), https://www.britannica.com/technology/QR-Code archived at https://perma.cc/5Y8H-GTW9. 14 Change.org is a website that allows individuals to create their own petitions to advance what they believe are important social causes. Change.org, https://www.change.org/about archived at https://perma.cc/RK6J-528U. 16 their oath of office.”15 (Alteration in original).

Respondent disseminated the flyer to Judge Klavans and several attorneys and posted it on the listserv16 for the Maryland Criminal Defense Attorneys’ Association. After considering Respondent’s testimony at the disciplinary hearing, the hearing judge found that the statements Respondent made in the email to Judge Klavans and on the flyer regarding Judges Alban and Wachs were “not opinion, and . . . [were] made . . . with reckless disregard as to [their] truth or falsity.” II HEARING JUDGE’S CONCLUSIONS OF LAW The hearing judge found by clear and convincing evidence that Respondent violated Rules 1.1; 1.2(d); 3.3(a)(1); 8.2(a); and 8.4(a), (c), and (d). A. Rules 1.1 and 1.2 Rule 1.1 states: “An attorney shall provide competent representation to a client. Competent representation requires legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” Meanwhile, Rule 1.2(d) states: An attorney shall not counsel a client to engage, or assist a client, in conduct that the attorney knows is criminal or fraudulent, but an attorney may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of law. 15 During Respondent’s disciplinary hearing, the Change.org petition to recall Judges Alban and Wachs was available to public.

Currently, however, the Change.org petition is no longer accessible. 16 A listserv, as used by the Maryland Criminal Defense Attorney’s Association, is a “[d]iscussion list” that allows online community members to “send a message to the list for distribution to all subscribers.” About Discussion Lists: Building Virtual Communities, https://www.lsoft.com/products/about_discussionlists.asp archived at https://perma.cc/ NNG4-LDMX. Recipients of a message can opt to respond to the message and engage in a back-and-forth discussion. See id. 17 According to the hearing judge, Respondent violated Rule 1.1 and 1.2(d) because he “knew about the no contact order . . . when he assisted his client in violating the no contact order by arranging the meeting with Ms. Hirsch, transporting Ms. Lemons to the meeting, and facilitating communication between Ms. Lemons and Ms. Hirsch on June 5, 2020.” B. Rule 3.3 Rule 3.3(a)(1) states that an attorney shall not knowingly “make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the attorney[.]” The hearing judge found that Respondent violated Rule 3.3(a)(1) when he filed the June 18th Motion and the Habeas Petition. In the Motion, the hearing judge found that Respondent knowingly and intentionally misrepresented the fact that Ms. Hirsch was “100% positive” that Ms. Lemons was not the robber; and, in the Habeas Petition, that Respondent knowingly and intentionally misrepresented that Ms. Hirsch had “stated with absolute certainty” that Ms. Lemons was not the robber.

C. Rule 8.2 Rule 8.2(a) states: An attorney shall not make a statement that the attorney knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer, or public legal officer, or of a candidate for election or appointment to judicial or legal office. The hearing judge found that Respondent made oral and written statements that were made with reckless disregard as to their truth or falsity in violation of Rule 8.2(a) when he made statements about: (1) Judge Alban at the August 6, 2021, hearing in State v. Harrod, (2) 18 Judges Alban, Wachs, and Mulford in his August 8, 2021, email to Administrative Judge Klavans, and (3) Judges Alban and Wachs in the flyer attached to an email to Judge Klavans, which was also publicly disseminated and made available on a public website. D. Rule 8.4 Rule 8.4 states, in pertinent part, that it is professional misconduct for an attorney to “(a) violate or attempt to violate the Maryland Attorneys’ Rules of Professional Conduct;” “(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;” and “(d) engage in conduct that is prejudicial to the administration of justice[.]” First, the hearing judge found that Respondent violated Rule 8.4(a) when he violated multiple rules under the MARPC. Second, she also found that Respondent violated Rule 8.4(c) by making “false statement[s] knowing that [they were] untrue.” Specifically, the hearing judge concluded that the violations of Rule 3.3 constitute violations of Rule 8.4(c).

Finally, the hearing judge concluded that Respondent’s statements, including those made directly to Judge Alban, in the email to Judge Klavans, and in the flyer violated Rule 8.4(d). Quoting from Attorney Grievance Commission. v. Basinger, 441 Md. 703, 713 (2015), the hearing judge stated that Respondent’s statements “were neither inartful slips of the tongue nor spoken in the heat of an oral altercation[,]” and that his conduct “br[ought] the legal profession into disrepute.” E. Aggravating and Mitigating Factors The hearing judge found four aggravating factors: (1) a pattern of misconduct; (2) multiple violations of the rules of professional conduct; (3) submission of false evidence, 19 false statements, or other deceptive practices during the attorney disciplinary process; and (4) substantial experience in the practice of law. The hearing judge also found four mitigating factors: (1) absence of a prior disciplinary record; (2) absence of a dishonest or selfish motive; (3) remorse; and (4) unlikelihood of repetition of the misconduct. III STANDARD OF REVIEW “This Court has original jurisdiction and complete jurisdiction in attorney discipline proceedings and conducts an independent review of the record.” Att’y Grievance Comm’n v. Jackson, 477 Md. 174, 182 (2022).

We review a hearing judge’s findings of fact for clear error. See Md. Rule 19-740(b)(1). If, however, the respondent has not filed exceptions to the hearing judge’s findings of fact, this Court may accept the findings of fact as established. See Md. Rule 19-740(b)(2)(A).

We review a hearing judge’s conclusions of law without deference and determine whether clear and convincing evidence establishes that a lawyer violated the MARPC. See Md. Rule 19-740(b)(2); Md. Rule 19-727(c). In the matter before us, Bar Counsel has not filed any exceptions; however, pursuant to Rule 19-728(b), Respondent has filed exceptions to the hearing judge’s findings and conclusions. IV EXCEPTIONS In providing context for his exceptions, Respondent characterizes his conduct and representation of Ms. Lemons as passionate and zealous advocacy on behalf of a mistakenly identified and accused perpetrator of the crimes against Ms. Hirsch.

He acknowledges that he “admittedly went too far to protest what he believed to be a 20 miscarriage of justice” and went “overboard in protesting his removal from the case of a woman considered innocent[.]” Respondent also describes his conduct as “[t]inged with hyperbole[,]” “provocative[,]” and an “exercise[ in] poor judgment [which]. . . he regrets.” But he faults the hearing judge for dismissing as reckless his complaints about Ms. Lemons’ treatment by the circuit court and not examining the merits of the rulings of the circuit court in Ms. Lemons’ criminal case to determine whether his conduct was sanctionable. Specifically, Respondent excepts to the hearing judge’s findings of fact and conclusions of law which we have summarized as follows: 1. Respondent argues that the hearing judge refused to examine the circuit court’s judicial rulings concerning his removal as Ms. Lemons’ attorney. Among those rulings, Respondent believes the hearing judge was required to consider whether: (1) the circuit court improperly required him to provide competent evidence to support the allegations he made; and (2) the circuit court was required to hold an evidentiary hearing before striking his appearance as Ms. Lemons’ attorney.17 In addition, Respondent argues that the hearing judge failed to require Bar Counsel to produce clear and convincing evidence that Respondent’s statements were uttered with actual knowledge of their falsity or that they recklessly disregarded the truth.

He urges us to find that, in accordance with New York Times v. Sullivan, 376 U.S. 254 (1964), Bar Counsel had the burden to show “actual malice” with respect to the statements he made, and that Bar Counsel failed to do so.18 2. The hearing judge had no basis to find that Respondent violated the no contact order because that restriction was only in a commitment order that was vacated when Judge Thompson signed a Release from Commitment and 17 In his Supplemental Memorandum, Respondent provides an additional exception that, in summary, contends that the hearing judge presumed Respondent’s statements were false, and that she shifted the burden to Respondent to prove they were true, and that she failed to examine the merits of Respondent’s complaint. We address these points in the broader exception raised here. 18 In this exception, Respondent raises two issues: (1) Ms. Lemons’ Sixth Amendment right to counsel of her own choosing; and (2) his right to criticize the circuit court judges and their rulings. We will address them separately. 21 issued a home detention order that did not include the restriction.

In addition, because the home detention order permitted Ms. Lemons to leave home to attend legal appointments, the meeting with Ms. Hirsch qualifies as a legal appointment. 3. The hearing judge erroneously required Respondent to prove “to [the hearing judge’s] satisfaction” that he accurately recounted Ms. Hirsch’s statements as to the identity of the robber in his pleadings before the circuit court and those made during his arguments to Judge Alban. Pursuant to Maryland Rule 1-311(b), when he signed his various motions to release Ms. Lemons from jail, Respondent had a good-faith basis to believe that Ms. Hirsch would testify consistently with the language in those motions. And, as he testified at his disciplinary hearing, Ms. Hirsch stated in a phone call that “it was not Meghan…[t]he robber was much bigger than her[, w]alk was different . . . . she said it wasn’t her.” 4.

That, while he was “unceremoniously discharged,” the hearing judge should not have punished him for (1) attempting to speak up for Ms. Lemons before Judge Ripken, (2) offering information to Judge Trunnell, or (3) sending the last “caustic text” to Ms. Hirsch. Respondent contends that he is being punished for going “above and beyond to fight for a client divested of fundamental rights.” With respect to the exceptions, we conclude that Respondent’s exceptions as to Rules 3.3(a)(1), 8.2(a), and 8.4(d) have no merit and we shall overrule them. Respondent’s exceptions as to Rules 1.1 and 1.2(d), however, are well-taken, and we shall sustain them. We explain our reasons below.

V ANALYSIS It is helpful to bifurcate Respondent’s exceptions into those that encompass more general allegations versus those that directly challenge specific findings or conclusions made by the hearing judge. Thus, we proceed accordingly. 22 A. General Exceptions 1. The Hearing Judge had No Obligation to Review the Circuit Court’s Rulings as to Ms. Lemons’ Sixth Amendment Right to Counsel of her Choice Respondent spent a significant portion of his exceptions arguing that Judge Alban’s removal of him as Ms. Lemons’ attorney violated Ms. Lemons’ Sixth Amendment right to counsel of her choice. Citing State v. Goldsberry, 419 Md. 100 (2011), Respondent argues that the hearing judge should have found that Judge Alban “lacked any legally-sufficient basis for overriding a defendant’s Sixth Amendment right to choose her own counsel.” In Goldsberry, we stated that the presumption in favor of the right to counsel of one’s own choosing may be overcome “not only by a demonstration of actual conflict but by a showing of a serious potential for conflict.” 419 Md. at 118 (quoting Wheat v. United States, 486 U.S. 153, 164 (1988)).

Here, however, Judge Alban’s ruling to strike Respondent’s appearance as Ms. Lemons’ attorney was not subject to review by the hearing judge. That process is covered under our rules governing appeals in criminal cases.19 Rather, the hearing judge’s responsibility was to determine whether Respondent’s conduct violated the MARPC by clear and convincing evidence.20 19 See Md. Rule 4-408 (“An application for leave to the Appellate Court shall be governed by Rule 8-204”); see also Md. Rule 8-204(b)(2)(A) (generally an “application [for leave to appeal] shall be filed within 30 days after entry of the judgment from which the appeal is sought.”). 20 The role of the hearing judge in an attorney disciplinary matter is to help determine “a lawyer’s fitness to practice law[.]” Att’y Grievance Comm’n v. Green, 278 23 Respondent suggests that the hearing judge still was required to review Judge Alban’s ruling to determine whether Respondent’s criticisms of that ruling and Judge Alban were warranted. If Respondent’s criticisms were factual commentary on Judge Alban’s ruling, or if he had simply criticized her for getting the law wrong, we would agree. However, Respondent (1) called Judge Alban a liar, (2) accused her of being biased and acting as the prosecutor, (3) accused her of “refus[ing] to apply the law when it doesn’t suit [her] purpose or when [she does not] agree with it; (4) said she was “complicit in kidnapping,” and (5) accused her of being corrupt.

Whether those accusations qualify as misconduct does not turn in any way on the correctness of Judge Alban’s ruling. Because the hearing judge properly declined to review the legality of the circuit court’s decision to strike Respondent’s appearance, we find no error. Thus, we overrule this exception. 2. Respondent is not being Punished for Zealously Representing Ms. Lemons Respondent argues that, despite “much evidence that [Ms. Lemons] was completely innocent,” her Sixth Amendment rights were “trampled on” by Judge Alban, and because he hoped that Ms. Hirsch would exonerate his client, this Court should not punish him for his conduct in going “above and beyond to fight [to prevent Ms. Lemons from being] divested of fundamental rights.” This Court, therefore, should find that “the vigorous defense he provided is worthy of commendation, not condemnation.” We do not agree that Respondent is being punished for zealously representing Ms. Lemons.

Md. 412, 414–15 (1976); see also Md. Rule 19-300.1 (observing that the MARPC define an “attorney’s professional role[]” not the rights of their client(s)). 24 In his exceptions, Respondent raised this issue with respect to his last email to Ms. Hirsch in which he blamed her for Ms. Lemons’ pleading guilty. He also notes that “he exercised poor judgment in a brief but caustic text.” Although Respondent initially was charged with an ethical violation arising from sending the text to Ms. Hirsch pursuant to Rule 3.4,21 Petitioner voluntarily dismissed that allegation. And nothing in the record reflects that the hearing judge found a violation of Rule 3.4 based on Respondent harassing Ms. Hirsch. Here, our holdings in this matter with respect to violations of the MARPC with which Respondent has been charged also do not concern any alleged harassment of Ms. Hirsch by Respondent pursuant to Rule 3.4 or any other MARPC.

Therefore, Respondent has not shown by a preponderance of the evidence that he is being punished for zealously representing Ms. Lemons, and we overrule this general exception. B. Specific Exceptions 1. Rules 1.1 and 1.2(d): Respondent did not Violate the No-Contact Order when he Arranged the Meeting between Ms. Lemons and Ms. Hirsch An attorney violates Rule 1.1 if they “fail[] to comply with court orders.” Att’y Grievance Comm’n v. Parris, 482 Md. 574, 592 (2023). An attorney also violates Rule 1.2(d) if they “assist the client in breaking the law.” Att’y Grievance Comm’n v. Culver, 381 Md. 241, 275 (2004).

In this case, the hearing judge found that Respondent simultaneously violated Rules 1.1 and 1.2(d) when he arranged the meeting between Ms. 21 Pursuant to Rule 3.4(c), an attorney shall not “knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.” 25 Lemons and Ms. Hirsch in violation of the no-contact order believed to be in effect at the time of the meeting on June 5, 2020. We do not agree with the hearing judge that there was clear and convincing evidence that the no-contact order was still in effect, and we will sustain Respondent’s exceptions that he violated these two rules. Below, we provide some context as to the timeline of events that perhaps created some of the confusion about the status of the no-contact order. Respondent offers several reasons in support of his exception that he did not violate the no-contact order and that he also did not assist Ms. Lemons in doing so.

First, he claims that he