Attorney Grievance Commission of Maryland v. Goodman

⁴⁸³ GREENE, J. On June 26, 2003, the Attorney Grievance Commission, acting through Bar Counsel, filed a petition with this Court for disciplinary or remedial action against Respondent, Ellis H. Goodman. Bar Counsel charged Respondent with violating several Maryland Rules of Professional Conduct (MRPC), alleging that he filed a complaint in the District Court of Maryland and signed the name of a different attorney (David Herman) to the complaint, without that attorney’s knowledge or permission. The Commission also alleges that Respondent attempted to negotiate a settlement with opposing counsel while pretending to be David Herman and that Respondent intentionally misled the trial judge to make him think that David Herman was the attorney who had filed the action and that Respondent was merely standing in for Mr. Herman. In particular, the petition alleged that Respondent violated MRPC 3.3(a)(1) (Candor Toward Tribunal), 1 MRPC 3.4(c) (Fairness to Opposing Party and Counsel), 2 MRPC 8.1(a) (Bar Admission and Disciplinary Matters), 3 8.4(b),(c), and (d) (Misconduct), 4 and Md.Code Ann., Crim.

Law Art. Section 8-606. 5 ⁴⁸⁴ Pursuant to Maryland Rule 16-752(a) 6 , we referred the matter to Judge Shirley Watts, of the Circuit Court for Baltimore City, to make findings of fact and proposed conclusions of law. Judge Watts held an evidentiary hearing on October 29, 31, and November 19, 2003, and concluded that Respondent violated the following Rules of Professional Conduct: 3.1(a)(1), 3.3(c), 7 and 8.4(c), as well as Md.Code Ann., Crim. Law Art., Sec. 8-606. In addition, Judge Watts found one mitigating factor present in this case.

Respondent filed exceptions to the factual findings and conclusions of law and recommended that the appropriate sanction for his conduct should be a stern reprimand. The Attorney Grievance Commission excepted to the failure of Judge Watts to find specifically that Respondent violated Rule 8.4(b), and has recommended that Respondent be disbarred. We overrule all of Respondent’s exceptions and sustain the exception of the Commission. Moreover, we conclude that the appropriate sanction in this case is disbarment. ⁴⁸⁵ I. The Hearing Judge’s Opinion FINDINGS OF FACT The findings of fact made by Judge Watts can be summarized as follows.

Respondent has been a member of the Maryland Bar since June 23, 1966, and has been employed as an Assistant Public Defender (APD) in Baltimore City. Respondent has not been the subject of prior disciplinary proceedings. In 1991, Respondent founded a charity called “Heroes of Hope,” an organization that helps children and families living through a life threatening illness. He founded the charity because of his experience with the life threatening illness of his surrogate son, Bobby Herman. 8 Bobby is the biological child of David Herman, the Maryland attorney whose name Respondent used to file the case that became the subject of these disciplinary proceedings.

Mr. Herman and Respondent had been friends and law partners for many years and when Mr. Herman divorced and moved away from Maryland, his son Bobby remained in Maryland with Respondent and his wife. Respondent created the InterMall project, consisting of advertising kiosks in shopping malls, in order to raise funds for Heroes of Hope. Fairfield Communities, Inc. (Fairfield) purchased advertising space from InterMall. According to Respondent, Fairfield failed to pay the amount billed for the space provided.

Thereafter, Respondent filed an action in the District Court of Maryland on behalf of InterMall, seeking to recover $1,491.00 from Fairfield. He later amended the complaint to increase the damages amount to $2,176.80. On both complaints, Respondent listed the name of D. David Herman as the attorney for the plaintiff. Respondent did not state his own name on either of the complaints.

Respondent also sent ⁴⁸⁶ a letter and four subpoenas to the District Court of Maryland, identifying David Herman as the attorney for the plaintiff. The letter was printed on letterhead stating “Law Offices of D. David Herman.” Respondent testified that he created the letterhead for use in the InterMall suit. Mr. Herman did not know of the InterMall suit and did not give Respondent permission to use his name on the pleadings. Thomas W. Jones, Esq., was the attorney for Fairfield and the complainant in the case at bar.

During telephone negotiations with Mr. Jones, Respondent represented himself as David Herman. On October 17, 2002, the day the case was scheduled to go to trial, Respondent, pretending to be Mr. Herman, negotiated a settlement over the phone with Mr. Jones. Later that day, Mr. Herman left a message for Mr. Jones stating that Mr. Herman would be unable to attend the trial and that Ellis Howard Goodman would be there instead, representing InterMall. When Mr. Jones met Respondent, he became suspicious because he recognized Respondent’s voice as the voice known to him as Mr. Herman.

Mr. Jones called Mr. Herman in Hawaii and discovered that Mr. Herman was unaware of this case, was not the attorney for the plaintiff, and had not given Respondent permission to use his name. When the case was called, Respondent informed the judge that he was handling the case and then attempted to place the settlement on the record. Respondent implied that Mr. Herman was the attorney in the case but would not be present for trial. Mr. Jones then asked to speak with the judge in chambers.

Mr. Jones told the judge that Respondent had been posing as Mr. Herman and that he would not go forward with the settlement in light of the misrepresentations. Respondent denied the accusations, by either shaking his head or saying, “no, that’s not true.” When Respondent testified at the disciplinary hearing, he admitted that he was not candid with the judge about filing the case under Mr. Herman’s name. Specifically, Judge Watts found that “Respondent did not acknowledge to Judge Chiapparelli that he had been impersonating Mr. Herman (and that Mr. Herman was not, in fact, the attorney of record in the case) and Respondent ⁴⁸⁷ specifically denied the Complainant’s accusations on this point.” Judge Chiapparelli decided to place the trial at the end of his docket. When the case was called, Respondent did not appear and Judge Chiapparelli dismissed the case.

The case has not been refiled. Mr. Jones filed a Complaint with Bar Counsel. Respondent then called Mr. Jones to apologize for his conduct. Judge Watts specifically found that, Respondent engaged in intentional dishonesty and deceit when he filed the pleadings and requested subpoenas in this case and repeatedly misrepresented the identity of counsel of record in this case to Mr. Jones.

The Court also finds that the Respondent engaged in intentional dishonesty and deceit before Judge Chiapparelli when he denied having been posing as Mr. Herman and failed to advise the Court that Mr. Herman was not in fact the attorney of record in the InterMall case. The Court finds that the Respondent misrepresented the identity of counsel of record, at least in part, because as an APD, he was generally prohibited from engaging in the private practice of law, and in part, because he thought his actual appearance in court would not be necessary. The Respondent, a recently appointed APD, did not want to have his appearance recorded in a civil case because he believed that such action was against the policy of the Public Defender’s office. The Respondent did not seek the permission of any supervisor in the Office of the Public Defender to participate in the case.

The Respondent testified that he believed that the case would be settled and that it would not actually be necessary for him to appear in court. Additionally, the Respondent did not want to appear as both a witness and counsel in the case; and this thought affected his decision to use Mr. Herman’s name. The record establishes that the Respondent had logical reasons that motivated his dishonest and deceitful behavior. MITIGATION Respondent argued that his misconduct was caused by health problems.

In particular, he argued that he had an ⁴⁸⁸ inability to think clearly, which was caused by low blood sugar and a bad reaction to some medication he was taking. Dr. Kroopnick, Respondent’s internist, testified about these matters. Judge Watts decided that there was, no medical evidence that the Respondent had low blood sugar during the relevant period of time. Further, there is no evidence that the Respondent was unable to think clearly during the time period in question.

The Respondent filed the lawsuit on April 17, 2002, and misrepresented his identity to Mr. Jones up until the day of trial on October 17, 2002. The evidence establishes that during this time he functioned as a competent APD and showed no evidence of confusion or disorientation in any other aspect of his life. Judge Watts noted that Dr. Kroopnick was not able to produce a single test that verified that Respondent had low blood sugar during the relevant time period. She concluded that Dr. Kroopnick’s testimony (that Respondent’s behavior in this case was caused by low blood sugar and a bad reaction to medication) was “without merit.” Respondent also presented the testimony of Dr. Adler, a psychologist who performed a psychological evaluation of Respondent, at the request of Dr. Glass, a psychiatrist to whom Respondent had been referred after notifying Dr. Kroopnick of the instant case.

Dr. Adler testified that diabetes, history of chronic pain, financial stress, and depression and anxiety contributed to Respondent’s behavior in this case. He admitted on cross-examination, however, that he did not know how long Respondent had suffered from “depressive thinking,” and that he could not confirm that Respondent had depression or anxiety during the relevant time period. Dr. Adler also testified that Respondent had a “somewhat bizarre over-attachment” to his charity, but did not say that the attachment caused Respondent’s behavior in the instant case. Judge Watts noted that the testimony of Dr. Tellefsen, Bar Counsel’s rebuttal witness, confirmed that Respondent had an obsessive attachment to his charity and dysthymic disorder, or chronic depressed mood.

Although Dr. Tellefsen testified on ⁴⁸⁹ cross-examination that it was “probably unlikely” that Respondent would have engaged in the deceit if the matter had concerned any entity other than his charity, she did not conclude that any mental condition or disorder caused Respondent’s behavior. In fact, as noted by Judge Watts, Dr. Tellefsen testified that she was “unable to find any mental condition that was impairing Respondent’s ability to function at the time.” Judge Watts concluded that the record did not establish that any mental health disorder caused Respondent’s behavior. She also concluded that none of the other problems experienced by Respondent (car accidents, bankruptcy, financial stressors, pain and sleep medication, diabetes, depression) caused his behavior in this case. The judge noted that the record “establishes Respondent’s behavior was motivated by his desire not to interfere with his job as an APD, his belief that the case would be settled, and his desire not to appear as both a witness and the attorney of record.” Respondent urged the court to find that his misrepresentations were not for personal gain, but for the benefit of his charity.

Judge Watts declined to make such a finding, noting that InterMall had been funded “almost entirely” by Respondent and that the project did not generate a profit and was not generating enough sales to have been financially viable at the time of the lawsuit. Judge Watts also noted that the record reflected Respondent’s recent history of personal financial difficulty. For mitigation purposes, Respondent also presented the testimony of his employer, Stephen Harris, Public Defender for the State of Maryland. Judge Watts found that Respondent had established that “he performed his job as an APD in a conscientious and diligent manner and Mr. Harris is willing to have him continue in the position.” Finally, Respondent presented evidence that Mr. Herman would have represented InterMall pro bono if Respondent had asked him.

Judge Watts found that Mr. Herman’s willingness to have taken the case did not mitigate Respondent’s conduct. ⁴⁹⁰ CONCLUSIONS OF LAW Judge Watts concluded that Respondent violated MRPC 3.3(a)(1), 3.4(c), and 8.4(c) and Section 8-606 of the Criminal Law Article of the Annotated Code of Maryland. Specifically, Judge Watts wrote: The Respondent made a false statement to the Court when he filed the Complaint, Amended Complaint and subpoena requests in the name of another attorney in disregard for his obligation to be truthful to the Court and thereafter in Court misled the tribunal to believe that he had not been impersonating the other attorney. The Respondent engaged in deceitful and dishonest conduct when he misrepresented his identity to opposing counsel. In filing the lawsuit and in his representations and omissions to Judge Chiapparelli, the Respondent made false statements of material fact in violation of Rule 3.3(a)(1), disregarded obligations to be truthful in violation of Rule 3.4(c), and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(c).

In misrepresenting his identity to opposing counsel, the Respondent engaged in dishonest and deceitful behavior in violation of rule 8.4(c). In addition, the Court finds that the Respondent willfully made a false entry in a public record in violation of section 8-606 of the Criminal Law Article of the Annotated Code of Maryland.

II

Standard of Review This Court has original jurisdiction over attorney disciplinary matters. Attorney Grievance Comm’n v. Harris, 371 Md. 510, 539 , 810 A.2d 457, 474-475 (2002). The hearing judge’s findings must be supported by clear and convincing evidence. Attorney Grievance Comm’n v. Monfried, 368 Md. 373, 388 , 794 A.2d 92, 100 (2002).

Although we conduct an independent review of the record, we accept the hearing judge’s findings of fact unless they are clearly erroneous. Attorney Grievance Comm’n v. Garfield, 369 Md. 85, 97 , 797 A.2d 757, 763-64 (2002). We review the hearing judge’s proposed conclusions of law de novo. Attorney Grievance ⁴⁹¹ Comm’n v. McLaughlin, 372 Md. 467, 493 , 813 A.2d 1145, 1160 (2002).

III

Discussion Bar Counsel filed exceptions 9 challenging Judge Watts’s failure to find specifically that Respondent violated MRPC 8.4(b). MRPC 8.4(b) provides that it is professional misconduct for an attorney to “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” In view of the fact that Judge Watts found that Respondent willfully made a false entry in a public record, in violation of section 8-606(b)(l) of the Criminal Law Article, we agree with Bar Counsel on this matter. The hearing judge, also, should have concluded that Respondent violated MRPC 8.4(b). Respondent filed a number of exceptions, which we will summarize and address.

Respondent first lists a number of factual findings that he believes Judge Watts failed to make. 10 They consist of Respondent’s long history as an attorney and a discussion of his past contributions to the profession and to charity. They also include a discussion of Respondent’s recent financial troubles and a statement that the Public Defender’s office is willing to continue to employ him. Respondent also claims that Judge Watts failed to make a finding that he had a ⁴⁹² “bizarre over-attachment” to his charity and that he has acknowledged that it was wrong for him to represent himself as Mr. Herman. Judge Watts found that Respondent had been an attorney since 1966 and that he had never been the subject of a disciplinary proceeding.

She also discussed his charity work, his financial difficulties, his employer’s willingness to retain him, his over-attachment to his charity, and the fact that he called opposing counsel to apologize for pretending to be Mr. Herman. Respondent also argues that Judge Watts should have found that his actions “were not motivated by financial gain or undertaken for a selfish motive,” and that no individual or entity lost money as a result of Mr. Goodman’s actions, other than that InterMall was denied the recovery that it claimed. We see no reason why the record in this case requires Judge Watts to have made those findings. It is clear that the judge was aware of the relevant facts.

Furthermore, there is no reason the judge should be forced to believe any testimony that Respondent acted completely unselfishly. Judge Watts specifically noted that InterMall had been funded “almost entirely” by Respondent and that it was not generating enough sales to have been financially viable at the time of the lawsuit. Judge Watts also noted that the record reflected Respondent’s recent history of personal financial difficulty. She did not, however, find that Respondent’s behavior was motivated by a desire for personal gain.

Rather, she discussed the fact that as an APD, Respondent would not have been permitted to represent InterMall without permission, the belief that he could get away with the deception because he thought he would not have to appear in court, and the desire to avoid being both a witness and an attorney in the case. Judge Watts then concluded that “Respondent had logical reasons that motivated his dishonest and deceitful behavior.” We cannot say that a refusal to find that Respondent’s behavior was not motivated by a desire for personal gain was