Attorney Grievance Commission v. DeMaio

BELL, C.J. The Attorney Grievance Commission of Maryland, the petitioner, by Bar Counsel filed, pursuant to Maryland Rule 16-751 1 of the Maryland Rules of Procedure, a Petition For Disciplinary Or Remedial Action, against Louis J. DeMaio, the respondent, in which it was charged that the respondent violated Rules 1.1, Competence, 2 3.1, Meritorious Claims and ⁵⁷³ Contentions, 3 3.3, Candor Toward the Tribunal, 4 8.1, Bar Admission and Disciplinary Matters, 5 and 8.4, Misconduct, 6 of the Maryland Rules of Professional Conduct, as adopted by Maryland Rule 16-812. Bar Counsel also alleged that the respondent violated Maryland Code (1989, 1995 Replacement Volume) § 10-306 7 of the Business and Occupation Article. We referred the case to the Honorable Stephen M. Waldron, of the Circuit Court for Harford County, for hearing. See 16-757.

The respondent, although served with process, ⁵⁷⁴ did not file an answer, prompting the entry of an order of default, and he neither appeared for, nor participated in the hearing. Following a hearing on the merits, at which testimony was elicited and exhibits considered, the hearing court made findings of fact, see 16-757(c), 8 and drew conclusions of law, as follows: “Respondent Louis J. DeMaio, was admitted as a member of the Bar of the State of Maryland on July 1,1964. In the course of his practice of law, he came to represent Thomas Oliva in a case which was filed in the Circuit Court for Hartford County, captioned Oliva v. ITT Hartford. Civil Case No. 12C-00-30330C.

In said case, Respondent, as attorney for the Plaintiff, filed a Motion to Strike, Motion for Summary Judgment, and Motion for Hearing. Said Motion[s] [were] denied by the Circuit Court on February 27, 2001. On or about March 12, 2001, Respondent noted an appeal to the Court of Special Appeals. On October 5, 2001, the Court of Special Appeals, by Chief Judge Murphy, issued a Show Cause Order requiring Respondent’s client, the Appellant, to show cause why the appeal should not be dismissed as being premature.

On or about October 19, 2001, the Respondent filed a response to the aforesaid Show Cause Order, claiming falsely that the said October 5, 2001, Order was ‘unsigned’ by the Chief Judge. On December 13, 2001, Judge Deborah Eyler signed an Order dismissing the appeal, finding it to be a premature appeal from a non-final judgment. “On January 7, 2002, Respondent filed a Motion to Modify or Rescind Order of Dismissal and Motion for Summary ⁵⁷⁵ Judgment in the Court of Special Appeals. In said Motion, the Respondent made several frivolous and unfounded representations, namely: “a. ‘For the Harford County Circuit Court and this panel refusal to administer Maryland law has in essence granted immunity to the Appellee which is a violation of their oath of office and exceeds the authority of the Court.’ “b. ‘If the panel decides not to rescind the Order to Dismiss or refuses to modified [sic] its order or refuses to grant the Appellant’s motion for Summary Judgment, this will be deemed as a denial of due process to the Appellant and a denial of due process to his attorney. For this panel to rely on void and illegal material to deny the Appellant’s motion for Summary Judgment is a violation of their oath of office and it shall be necessary to have all public officials involved in this proceedings [sic] to be held accountable and responsible and, if necessary, removed from public office.’ “This Motion was denied on March 27, 2002, by Chief Judge Joseph F. Murphy, Jr. No review of that denial was requested by the Respondent. “On or about December 19, 2002, the Respondent filed a ‘Petition to Remove’ in the Court of Appeals of Maryland, in which he sought, inter alia, to ‘remove Chief Judge Joseph Murphy, Jr. forthwith from serving as Judge in any Court of law permanently.’ In said Petition, the Respondent made several false representations: “a.

In paragraph 4, the Respondent alleged that ‘Chief Judge Joseph Murphy, Jr. on his own initiative ... without review of the record, issued an unsigned Show Cause Order why the Appeal should not be dismissed and to respond by 10-22-01.’ “b. In paragraph 6, he represented that ‘in essence, Chief Judge Joseph Murphy, Jr. personally interceded in this case and issued the Show Cause Order on behalf of the insurance industry, since ITT Hartford was not represented in the Court of Special Appeals. For Chief Judge Joseph ⁵⁷⁶ Murphy, Jr. to issue a Show Cause Order under these circumstances had to possess some ulterior motive.’ “e. In paragraph 7, the Respondent further represented erroneously that ‘it is grossly improper for Chief Judge Joseph Murphy, Jr. to unilaterally contact the insurer, who is unrepresented, without notifying the Petitioner.

If this transaction involves any monetary benefit to Judge Joseph Murphy, Jr., to supplement his salary, it is reportable income. Failure to pay federal, state, and local income tax on unreported income is a criminal offense. U.S. v. Spiro Agnew.’ “d. In paragraph 8, the Respondent refers to a potential collusion between Judge Murphy and the Clerk of the Court to remove briefs from the legal process. “e.

In paragraph 9, the Respondent alleges that certain orders which he deemed conflicting could have come about only as a result of the ‘personal intercession by Chief Judge Joseph Murphy, Jr.’ “f. In paragraph 11, the Respondent included the following unfounded inflammatory representation: ‘the egrecious [sic] administering of the law coupled with the aberrant conduct of Chief Judge Joseph Murphy, Jr. in this case warrants corrective action including removal from public office as a judge. This is not a situation of the exercise of judicial discretion but the personal involvement by a judge engaged in a scheme of unjust enrichment.’ “All of these aforesaid representations and allegations were made by the Respondent with reckless disregard as to the truth of the statements and knowing that they were false, misleading, and unfounded. The aforesaid Petition to Remove was denied by the Court of Appeals on December 30, 2002.

On or about January 21, 2003, the Respondent filed a second ‘Petition to Remove’ in the Court of Appeals of Maryland, this time seeking, inter alia, the removal of Chief Clerk Leslie D. Gradet from the position of Chief Clerk of the Court of Special Appeals. In said Petition, the Respondent once again asserted that Chief Judge Joseph Murphy, Jr. had issued an unsigned Show Cause Order and ⁵⁷⁷ further intimated that Chief Judge Murphy and the Clerk of the Court had colluded to remove briefs from the record. “As a result of this behavior, Deputy Bar Counsel for the Attorney Grievance Commission of Maryland corresponded with the Respondent, advising him that the Attorney Grievance Commission had docketed a complaint against him and requesting that he provide specific evidence supporting the allegations that he had made against Chief Judge Murphy in the aforesaid Petition to Remove. Deputy Bar Counsel requested a response by letters dated January 23, 2003, February 27, 2003, and March 13, 2003. The Respondent declined to respond to any of these letters.

On March 17, 2003, an investigator for the Attorney Grievance Commission of Maryland, namely, Sterling Fletcher, contacted the Respondent by phone in order to arrange a meeting. Mr. Fletcher indicated to the Respondent that he had not responded to Bar Counsel and he suggested that he do so. The Respondent indicated to the investigator that he did not intend to respond and he further refused to meet with the investigator.” Having found the afore going facts by clear and convincing evidence, the hearing court concluded that the respondent had violated all of the charged Rules of Professional Conduct: “By filing a premature appeal and then by making the aforesaid spurious, knowingly false, and inflammatory representations regarding Chief Judge Murphy and Chief Clerk [sic] Gradet in pleadings before the Appellate Courts, by requesting that all public officials involved in the proceeding be removed, and by filing the petitions to remove, the Respondent failed to provide competent representation to a client in violation of Rule 1.1. “By making the aforesaid spurious, knowingly false, and inflammatory representations regarding Chief Judge Murphy and Chief Clerk [sic] Gradet, the Respondent violated Rules 3.1, 3.3. 8.2, and 8.4. “By failing to respond to any of the letters from Bar Counsel and by failing to meet with the investigator for the ⁵⁷⁸ Attorney Grievance Commission of Maryland, the Respondent has violated Rule 8.1.” The petitioner took no exceptions to the findings and conclusions of the hearing court and, as we have seen, the respondent did not participate in those proceedings. The petitioner has filed Petitioner’s Recommendation for Sanction, in which it urges the respondent’s disbarment.

Noting the hearing court’s findings that the respondent made knowingly false, spurious and inflammatory representations about the Chief Judge of the Court of Special Appeals and the Clerk of that court, which it insists the record supports, and that the respondent “refused to respond to Petitioner in any substantive way, both before and after this matter was filed in this Court, despite many opportunities to do so,” it concludes that the respondent’s conduct is unmitigated. Thus, it asserts, “[t]he Respondent has given no reason for this Court to maintain him on the roll of those admitted to practice.” The petitioner relies on Attorney Grievance Commission v. Vanderlinde, 364 Md. 376, 418 , 773 A.2d 463, 488 (2001). The respondent, like the petitioner, did not file exceptions to the findings of fact and conclusions of law of the hearing court; however, he filed a Response to the Petition for Recommendation for Sanction By the State of Maryland. In it, in addition to persisting in the representations as to Chief Judge Murphy and Clerk Gradet, he challenges the basis for the Commission’s disbarment recommendation and characterizes the investigation leading to the filing of the Petition for Disciplinary or Remedial Action against him as “mediocre” and “incomplete and deficient.” As to the former, the respondent writes: “The Attorney Grievance Commission filed the current Petition before this Court recommending the Respondent should be disbarred for ‘intentional dishonest conduct.’ The Petition gives no particulars as to how, when, and where this ‘intentional dishonest conduct’ [occurred] other than to reference an attorney who was disbarred for admission to a crime, [Vanderlinde,] 364 Md. 376 , 773 A.2d 463 .

For the Attorney Grievance Commission to equate criticism of the judicial process with admission to a criminal act is not only ⁵⁷⁹ irresponsible but borders on incompetency. The charge is unsubstantiated and false.” With respect to the investigation, the respondent maintained that, not only did the petitioner fail to consider all the facts and documents in the case underlying his allegations against Chief Judge Murphy, but it “devoted all its efforts to the Respondent messenger and ignored the message in the Respondent’s petition pertaining to Chief Judge Murphy.” The respondent’s response to the petitioner’s recommendation for sanction contained other unfounded and reckless representations and allegations, two of which are just plain bizarre. First, he takes the Court to task for the manner in which it handled the respondent’s petition for the removal of Chief Judge Murphy. After noting that the Court dismissed the petition summarily, without a hearing or requiring the affidavit from Chief Judge Murphy that the petition urged be obtained as a condition precedent to his being retained, the respondent accused: “On April 22, 2003, some four months [after the respondent’s petition was dismissed], this Court directed the Attorney Grievance Commission to investigate the Respondent for any impropriety.

This Court refuse[d] to consider the merits of the Respondent’s Petition but on its own initiative referred the Petition to the Grievance Commission. It is less understood why this referral was done four months after the Petition was denied. The Respondent questions the ulterior motive of this Court. It appears this is an act of reprisal for being critical of the invasive intrusion by Chief Judge Murphy in issuing the Show Cause Order.

This Court is suppose[d] to be engaged in resolving issues and not creating new issues. The Order of this Court is retaliatory and punitive in nature and contrary to the administration of due process.” Next, the respondent presents the argument that “The Maryland Court of Special Appeals Is Dysfunctional and Possibly Illegal under the Maryland Constitution and a Denial of Due Process under the 14th Amendment to the U.S. ⁵⁸⁰ Constitution.” In support of the argument, he suggests that there are multiple courts and chief judges and, possibly illegal conduct extant: “There are actually two Maryland Court of Special Appeals, one in Annapolis and the other in Towson Maryland. There appears to be two Chief Judges, Chief Judge Murphy and ex-Chief Judge Murphy.[ 9 ] The Show Cause Order only states Chief Judge and does not specify which Chief Judge. If the Order is from ex Chief Judge, then it is clearly illegal.

Anyone can use a rubber stamp stating Chief Judge. This perhaps explains why a signed Order was never furnished to the Respondent. “The Grievance Commission did not produce the rubber stamp, copy of the Show Cause OrderExhibit — 1. It appears th[at] the Court of Special Appeals has one court docket in Annapolis and no court docket in Towson Maryland. This bifurcated Court of Special Appeals does not properly service parties on appeal but only accommodates the Chief Judge in some ex parte manner especially when the case files are physically located in Annapolis, Maryland. “If the ex-Chief Judge issued the Show Cause Order, this is an illegal order under the Maryland Constitution, Article IV, section 5a regarding mandatory retirement, states an appellate court judge fall within the ‘elected to public office’ and shall retire when he retains his seventieth birthday.

There are no exceptions for appellate court judges. Retired appellate judges cannot engage in the judicial process after age 70. The Grievance Commission chose to ignore and failed to explore this important issue. “If the ex-Chief Judge is officially retired and receives office space in Towson with free clerical and office supply and equipment, this is an economic fringe benefit and is taxable for income tax purposes for both federal and state ⁵⁸¹ income taxes. The amount included in the income tax return is the fair yearly rental of comparable office with similar services.

Failure to report this benefit is fraud in which the statute of limitation does not toll. If not disclosed and not reported as income, the taxpayer is liable for back taxes, interest and penalties. “The Respondent has raised a proper issue in the validity of the Show Cause Order and deviated from