Attorney Grievance Commission v. Alison

⁵²⁵ McAULIFFE, Judge. For about two years, respondent, an attorney in Harford County, engaged in a course of professional and private conduct that was inappropriate, rude, vulgar, insulting, occasionally dangerous, and sometimes criminal. As a result, Bar Counsel filed a petition for disciplinary action, alleging not only that respondent engaged in misconduct, but also that he was incompetent, i.e., unable to render adequate legal service by reason of a mental or physical illness or infirmity. Pursuant to our direction, the charges were heard by Judge J. William Hinkel, who found by clear and convincing evidence that respondent was guilty of misconduct, but that the evidence was insufficient to show that he was incompetent.

Respondent filed exceptions to the findings of misconduct. Bar Counsel filed no exceptions, and recommended a two year suspension. Stuart L. Alison was admitted to the Bar of this State in 1978. He served as a part-time Assistant State’s Attorney in Harford County for two years following his admission, and since that time he has engaged in the private practice of law in Harford County.

He has not received any previous disciplinary sanction. The conduct with which we are here concerned had its roots in marital discord. Respondent married Mary Alison in 1988. The penultimate separation in an apparently stormy relationship occurred in June of 1985.

The couple reconciled in November of that year, but again separated in June, 1986. They are now divorced. We recount the relevant episodes, occurring between August 1985 and August 1987, as found by Judge Hinkel. 1. The Incident of August 25, 1985.

On the evening of 25 August 1985, Alison, accompanied by his 16-year-old son of an earlier marriage, followed his estranged wife, who was in a car with a man, Howard Emerick, and another woman. Alison, extremely upset because he believed Emerick was on a date with his wife, ⁵²⁶ attempted to stop the Emerick car by pulling his car in front of it. Emerick drove to the State police barrack in Bel Air with Alison following closely behind. At the barrack, an angry verbal confrontation occurred between Alison and Emerick.

After the parties were separated, Alison informed a State trooper that he was thinking of “bouncing Mr. Emerick around on his head and stomping on his tongue.” The two women departed in a police car, and Emerick left in his own car. Despite advice from the State police to Alison that he should not follow Emerick, but rather “let it drop” and go home, Alison pursued Emerick. Troopers Yogt and List followed Alison, and after traveling four or five miles decided to stop him. The troopers activated emergency lights, but Alison refused to stop.

After proceeding another two miles, Alison was forced to stop when Trooper List pulled ahead of him and slowed down. Alison was arrested and charged with driving while intoxicated. Because Alison resisted being handcuffed, three State troopers were required to effect the arrest. When the officers offered to transport Alison’s son to his home, Alison said: “don’t take anything from these mother fuckers.” At the State police barrack to which Alison was then taken for processing, Alison referred to another trooper as a “mother fucker,” because he perceived that the trooper was enjoying Alison’s predicament.

A short time later, Alison was released, and was to be driven home by a friend and fellow attorney. However, Alison fled his friend’s vehicle and proceeded on foot to his wife’s home, where he banged on the door and generally caused a disturbance. The police arrived and quelled the disturbance. Alison was subsequently convicted in the District Court of Maryland of driving under the influence of alcohol.

He appealed to the Circuit Court for Harford County, was again found guilty, and was granted probation before judgment. ⁵²⁷ 2. The “Citizen’s Arrest” of August 25, 1986. On June 25, 1986, Alison and his wife again separated. When Mrs. Alison left their home, she took much of the household furnishings and furniture, including some property belonging to Alison and his son.

Although Mrs. Alison testified that the removal of property not belonging to her was inadvertent, Alison considered it a criminal act. On August 19, he filed a complaint with the Harford County Sheriff’s Office alleging theft of his property. On August 25, Alison saw his wife driving in the town of Bel Air. He followed her until she stopped for a traffic signal, at which time he attempted to forcibly remove her from her vehicle.

According to Alison, he was effecting a citizen’s arrest in connection with what he viewed to be the felonious taking of his property. When Mrs. Alison refused to leave her car or unlock the door, Alison secured a hammer from the trunk of his car, and broke out the window of the driver’s door. He then reached in and removed the keys from the ignition, unlocked the car door, and attempted to remove his wife from the vehicle. A struggle ensued, but he was ultimately successful in wresting her hands from the steering wheel.

He attempted to force her into the back seat of his car, but was stopped by other citizens and, ultimately, by the police. The police found a nine millimeter semiautomatic handgun in the trunk of his car, together with 50 rounds of hollow point ammunition. Alison was charged with malicious destruction of property, disorderly conduct, assault, battery, and unlawful possession of a handgun. Alison was released on his personal recognizance, with the condition that he have no contact with Mrs. Alison and that he refrain from harassing her.

Notwithstanding this condition of release, Alison repeatedly telephoned, and occasionally confronted Mrs. Alison, demanding the return of his property. As a result, the State’s Attorney for Harford County filed a motion to revoke Alison’s recognizance. The motion was denied after hearing by Judge Broadnax Cameron, Jr. Judge Cameron did, however, orally instruct Alison to stay ⁵²⁸ away from his wife, and entered an injunction to that effect in the divorce case, then pending in the Circuit Court for Harford County. Alison was ultimately acquitted of all criminal charges brought in connection with this incident. 3.

The Baltimore City Forgery Proceedings. Alleging that his wife had endorsed his signature on a check payable to both of them, Alison filed a charge of forgery against his wife in the District Court of Maryland for Baltimore City. On November 14, 1986, a preliminary hearing was scheduled on that charge. Assistant State’s Attorney Thomas R. Kane, after reviewing documentation provided by Mrs. Alison and her attorney, met with Alison and informed him that he was dismissing the charges because he believed there was no criminal intent.

Alison, unhappy with that decision, referred to Kane as an “asshole.” Alison, although maintaining that there was technical merit to the charge, admitted that he filed the forgery charge to “raise the cost to her as high as he could,” and that there was an element of spite in his action. 4. The December 1986 Harassment. On two separate occasions in December, 1986, Alison deposited two or three plastic garbage bags full of trash on the porch of Mrs. Alison’s home. Alison was thereafter charged with two counts of littering, and with harassing Mrs. Alison in violation of Maryland Code (1957, 1982 Repl.

Vol., 1986 Cum.Supp.), Art. 27, § 121A. Alison, acquitted of the littering charges, was convicted of harassment. 5. Incident of 27 December 1986. On December 27, 1986, Alison again went to the home of his wife, ostensibly to demand the return of his property.

When she refused to admit him, he beat on the door for about a minute, removed a Christmas wreath from the door, and departed for his law office. En route he was stopped by Officer Terry Ford of the Bel Air Police Department who ⁵²⁹ informed Alison that he was being detained as a suspect in a possible domestic-related breaking and entering. He also advised Alison that he understood there was a court order directing Alison to stay away from his wife’s residence. Alison, concluding that officer Ford had no authority to detain him, attempted to leave.

A struggle ensued, other police arrived, and Alison was subdued and taken into custody. Alison was charged with assaulting Officer Ford, resisting arrest, and hindering a police officer. He was tried in the District Court and was convicted of all charges. On appeal to the circuit court, he was acquitted of assault and of resisting arrest, but was convicted of hindering a police officer. 6.

Misuse of Subpoena. On 8 May 1987, Alison was in the District Court of Maryland for Harford County for trial of the charges described in the immediately preceding incident. Alison saw that Thomas Barstow, a reporter for a local newspaper, was seated in the courtroom. Alison immediately had a subpoena issued and served upon Barstow, and at the commencement of his trial he requested the sequestration of all witnesses.

Barstow was required to leave the courtroom and was not able to report on Alison’s trial, as had been his expectation. Alison did not call Barstow as a witness. When asked to explain why he had caused a subpoena to be served on Barstow, Alison gave two reasons. First, he said he felt it might have been necessary to have someone familiar with the area of the arrest available to testify as to the location, and it simply did not turn out that the testimony was needed.

Second, he said he intended to harass Barstow and to prevent him from reporting on the trial. Judge Hinkel found Alison had acted solely for the latter purpose. 7. Resistance to Court Ordered Search—Language in Court. On 30 January 1987, Alison was scheduled to appear in the Circuit Court for Harford County to answer contempt ⁵³⁰ charges arising out of his alleged violation of the injunction against contacting or harassing Mrs. Alison.

As Alison approached the courtroom, he was informed by a deputy sheriff that he would have to submit to a pat-down search of his person before being admitted. Alison refused, and attempted to force his way into the courtroom. Judge Cameron was called to the scene, and he requested that Alison submit to the search. Alison again refused, and Judge Cameron ordered the search.

Alison resisted. Five deputies were required to accomplish the search. Alison was then handcuffed and carried into the courtroom. During the course of the hearing, “Alison directed a few ‘fuck you’s’ at John Karas, the lawyer for Mrs. Alison, and one toward Judge Cameron.” Judge Cameron heard none of this.

Alison was found in contempt of court and sentenced to six months in the Harford County Detention Center. He appealed, but Judge Cameron refused to set an appeal bond. On February 10, 1987, Alison was released on bond. The finding of contempt was later reversed by the Court of Special Appeals upon a determination that the order adjudging Alison in contempt was deficient because it failed to afford respondent an opportunity to purge the contempt. 8.

Verbal Abuse of Court Clerks. At or about the time of Alison’s last separation, Mrs. Alison’s sister, Susan Medley, came into possession of some of Alison’s camera equipment. Alison filed a replevin action on 31 March 1987, obtained a judgment for the return of the goods and for costs in the amount of $25.00. The attorney for Susan Medley attempted several times to pay Alison the $25.00 in costs, and informed Alison that he had the property and would turn it over to the sheriff.

Alison nonetheless insisted on having the writ issued, and refused to accept the costs, contending that the judgment for costs should have been in the amount of $40.00. ⁵³¹ On 12 June 1987, Alison went to the office of the Clerk of the District Court in Harford County, for the purpose of recording a lien of his judgment for costs, and also to attach, by way of garnishment, a bank account jointly held by Mrs. Medley and Mrs. Alison. A District Court clerk and her supervisor refused to accept the papers proffered by Alison, because a judge of the District Court had instructed the clerk not to accept any post-judgment filings in the case. Alison became verbally abusive, demanding in a loud voice that “you have to take the fucking papers.” In the presence of the clerks, he referred to the attorney for Mrs. Medley as a “son of a bitch” and an “asshole,” and used other profanities. He was described as very angry, red faced, and with clenched fists.

As Alison left the area, he said “fuck you” to the supervisor. 9. Incident of 5 August 1987—Language in Court. The final incident occurred on 5 August 1987, during a hearing before Judge H.W. Harlan, Jr. in the District Court of Maryland in Harford County. This hearing was held on Alison’s petition, for return of the handgun seized during the incident of 25 August 1986.

Judge Hinkel found that during the course of arguing a point of law, Alison exclaimed “bullshit” and was admonished by Judge Harlan. Alison immediately apologized. Alison denies that he directed any such comment to the court. Alison testified that the State’s Attorney was making a point in argument that Alison thought was “particularly absurd,” and Alison muttered “bullshit” under his breath.

He admits that the trial judge heard at least part of what he said. Discussion As previously noted, Judge Hinkel found that there was insufficient evidence to demonstrate that the respondent was incompetent within the meaning of Maryland Rule BV1 i. Bar Counsel has not filed any exception to this finding, and we accept it. In so doing, we hasten to add that we do not agree with Alison’s contention that the charge was ⁵³² prosecuted “in bad faith and without substantial justification.” Quite to the contrary, we can understand Bar Counsel’s concern with the pattern of abusive and sometimes irrational dangerous conduct that persisted over a period of two years.

As Judge Hinkel noted in his findings: It is clear that each person who became involved in this dispute was viewed by Alison as an enemy and became an object in what appears to have been a campaign of disrespect, abuse and intimidation. It made no difference if the person were a friend, relative, newspaper reporter, police officer, fellow lawyer or judge. Harassment was the order of the day. While it is true that a serious marital dispute has an awesome potential to produce irrational behavior, this was not an isolated incident.

Bar Counsel’s concern was solidly grounded in fact, and it is more than a little disturbing to us that, even at this late date, respondent has little or no appreciation of the seriousness of his transgressions. Concerning the allegations of misconduct, Judge Hinkel found that respondent violated DR 1-102(A)(5) of the Code of Professional Responsibility, and Rules 4.4 and 8.4(d) of the Rules of Professional Conduct. Two different sets of regulations are involved because the Disciplinary Rules of the Code of Professional Responsibility applied to conduct of attorneys occurring prior to January 1, 1987, and the Rules of Professional Conduct applied thereafter. DR 1-102(A)(5) and Rule 8.4(d) are essentially the same.

Each provides that it is professional misconduct for a lawyer to “engage in conduct that is prejudicial to the administration of justice.” Rule 4.4 commands respect for the rights of third persons. That rule was found to have been violated by Alison’s misuse of the subpoena to exclude the reporter, an act about which we shall have more to say. In addition to taking issue with certain of the facts found by Judge Hinkel, Alison advances three principal arguments: that he may not be sanctioned for speech that is privileged by the First Amendment; that the conduct of which complaint is made cannot properly be classified as ⁵³³ prejudicial to the administration of justice; and, that his conduct was “De Minimis when measured against the conduct of the various attorneys who have been disciplined by this court for violation of the Rules of Professional Conduct” and is therefore undeserving of sanction. We shall consider Alison’s contentions separately.

Five of the incidents we have described involve Alison’s use of profane or vulgar language. They are: incident one, when Alison referred to the State troopers as “mother fuckers,” incident three, when Alison called Assistant State’s