Attorney Grievance Commission v. Dusen

McDonald, J. A lawyer must, at a minimum, be trustworthy. One who wants to be a lawyer in Maryland must disclose to the State Board of Law Examiners (“SBLE”) and this Court information that bears on that trait. Failure to satisfy those requirements may prevent admission to the bar or, when discovered, result in disbarment. We have disbarred the newly-admitted lawyer who is the respondent in this disciplinary proceeding and now set forth the reasons why we took that action.

To explain our decision, we need not catalog precisely what past indiscretions an applicant must recall and reveal in a bar application. It suffices to say that an applicant who is engaged in ongoing criminal conduct while the application is pending must disclose it to SBLE and this Court. And it is self evident that an applicant who, as a landlord, uses hidden cameras to secretly view and record his tenants in their private bedrooms in intimate moments, without their knowledge or consent, is not trustworthy. I Background A. Procedural Context On April 12, 2014, the Attorney Grievance Commission (“Commission”) charged Dennis Alan Van Dusen with violating several provisions of the Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) arising out of Mr. Van Dusen’s criminal conduct while his application for admission to the Maryland Bar was pending.

Specifically, the Commission charged Mr. Van Dusen with violating MLRPC 3.3(a) (candor toward the tribunal), 8.1(a) and (b) (material false statements ⁴¹⁷ and deliberate omissions in bar admission matters), and 8.4(a), (b) , (c), and (d) (misconduct). Pursuant to Maryland Rule 16-752(a), this Court designated Judge Anne K. Albright of the Circuit Court for Montgomery County to conduct a hearing concerning the alleged violations and to provide findings of fact and recommended conclusions of law. In January 2015, after holding an evidentiary hearing at which Mr. Van Dusen testified and was represented by counsel, the hearing judge issued her findings of fact and conclusions of law. The hearing judge concluded that Mr. Van Dusen violated MLRPC 8.1(a) and (b), and MLRPC 8.4(a), (b), (c) , and (d), but that the Commission did not prove by clear and convincing evidence that Mr. Van Dusen violated MLRPC 3.3(a).

Neither the Commission nor Mr. Van Dusen filed exceptions to the hearing judge’s findings of fact or conclusions of law. On May 7, 2015, we heard oral argument concerning the appropriate sanction. On May 8, 2015, we issued a per curiam order disbarring Mr. Van Dusen, effective immediately. 1 B. Facts The hearing judge’s fact findings are uncontested and we treat them as established. Maryland Rule 16-759(b)(2)(A).

The following summarizes those findings, the parties’ stipulations, and undisputed facts in the record: Pre-Law Background Mr. Van Dusen served in the Marines from 1966 to 1973, including service as a sergeant in Vietnam from 1970 to 1972. After his discharge from the military, he earned several advanced degrees from Penn State University and Harvard University, including degrees in computer science, applied mathematics, and engineering. During the 1970s, 1980s, and 1990s, Mr. Van Dusen was employed by several electronics businesses, designed new technologies, and started several of ⁴¹⁸ his own businesses. In 2006, Mr. Van Dusen decided to change his career path and entered law school at the University of the District of Columbia.

He graduated in 2009. Bar Application Mr. Van Dusen applied for admission to the Maryland Bar in May 2009. 2 Question 18 of his application for admission asked: Have there been any circumstances or unfavorable incidents in your life, whether at school, college, law school, business or otherwise, which may have a bearing upon your character or fitness to practice law, not called for by the questions contained in this questionnaire or disclosed in your answers? Mr. Van Dusen answered “No.” In completing the application, he acknowledged under oath that he had a duty to ensure that his responses were accurate and current at all times until he was formally admitted to the Maryland Bar. In particular, he represented in the application that he would advise SBLE immediately and in writing of any changes in the information disclosed in or sought by the application for admission, including the facts of any incident occurring subsequent to the initial filing of the application.

Mr. Van Dusen’s application was delayed as a result of the investigation by the local Character Committee. That committee, in a divided vote, recommended to SBLE that he not be admitted. A majority of the committee was concerned with Mr. Van Dusen’s perceived litigiousness and questions about his financial responsibility. SBLE undertook its own consideration of his application.

Ultimately, in April 2012, the SBLE, also by a divided vote, recommended to this Court that he be admitted to the Maryland Bar. Surreptitious Surveillance of Tenants During the time his bar application was pending Mr. Van Dusen lived in his home in Chevy Chase, Maryland. From ⁴¹⁹ September 2009 through October 2012, he rented bedrooms in his house to young women. Although common areas of the house such as the kitchen, living room, and bathrooms were shared, it was understood that each tenant had a private bedroom.

In August 2010, Mr. Van Dusen returned from a trip to Thailand with tiny cameras that could be remotely operated. Mr. Van Dusen installed the cameras in hidden locations in the bedrooms rented by his tenants. In a bedroom rented by Rebecca Prywes, a camera was hidden in a smoke detector mounted over her bed. Mr. Van Dusen was able to turn the camera to direct it to different areas of the room.

In a bedroom rented by Ala Malova, a camera was hidden in an outlet under a desk and was pointed at her bed. Ms. Malova returned home one day to find that Mr. Van Dusen had replaced her mirror in her bedroom with a larger mirror that he had purchased. Mr. Van Dusen told her that her mirror had fallen off the wall and broken and that he wanted to replace it. A second hidden camera in that room then recorded Ms. Malova’s reflection in the larger mirror.

Each camera worked on sensors that activated the camera when someone entered the room or when the lighting in the room changed. 3 The video images obtained by the cameras were transmitted to Mr. Van Dusen’s computer where he could view and retain them. Mr. Van Dusen knew that secretly recording a tenant in private without the tenant’s consent was illegal, unethical, and an invasion of the tenant’s privacy. During this proceeding, Mr. Van Dusen attributed his behavior to a number of stressors in his life that he said affected his conduct while his bar application was pending before the Character Committee. 4 ⁴²⁰ Noting that Mr. Van Dusen did not introduce evidence other than his testimony on these factors and expressing some doubt about his credibility, the hearing judge declined to credit that testimony. She did, however, find that Mr. Van Dusen was under stress generally, whether as a recent law graduate or due to the ongoing Character Committee investigation.

Court of Appeals Hearing Mr. Van Dusen’s intrusion on his tenants’ privacy remained undetected when, as noted above, SBLE ultimately recommended in favor of his admission to the Maryland Bar. In connection with that recommendation, a hearing was held in this Court on October 4, 2012. See In the Matter of the Application of Dennis Alan Van Dusen for Admission to the Maryland Bar, Court of Appeals of Maryland, Misc. Docket No. 6, September Term, 2012.

Mr. Van Dusen appeared before this Court on his own behalf. During his presentation to the Court concerning his fitness to be an attorney, Mr. Van Dusen expressly stated that, in the interim since SBLE had recommended his admission, he had not engaged in any criminal conduct. As he later admitted, when he made this statement, Mr. Van Dusen knew it to be an “absolute ... downright lie” because he knew that his video recording of his tenants without their knowledge was illegal. Following the hearing, the Court decided to admit Mr. Van Dusen to the Maryland Bar.

The swearing-in ceremony was scheduled for November 1, 2012. Discovery of the Hidden Cameras On October 12, 2012, one week after Mr. Van Dusen’s appearance before this Court but before he took the oath to join the bar, the hidden cameras were discovered. One of the tenants, Ms. Prywes, and her boyfriend, Keith Woodhams, discovered the camera hidden in the smoke detector mounted over her bed. Ms. Prywes contacted the Montgomery County ⁴²¹ Police Department and an officer arrived at the scene and took photographs of the camera and smoke detector.

The officer, Ms. Prywes, and Mr. Woodhams then left the house. After they left, Mr. Van Dusen entered Ms. Prywes’ room, saw the smoke detector with the hidden camera dangling from the ceiling, cut the smoke detector and camera down, placed the camera in a box elsewhere in the house, and replaced it with a working smoke detector. Shortly thereafter, Ms. Prywes returned to the house to retrieve her belongings and saw Mr. Van Dusen leave the house with a trash bag. Ms. Prywes later saw Mr. Van Dusen return to the house "without the trash bag.

The police attempted to interview Mr. Van Dusen that night, but he declined to answer any questions. A few days later, Mr. Van Dusen sent text messages to at least two tenants indicating that he was willing to discuss settlement with them before they filed a claim against him, but not afterward. The hearing judge found that Mr. Van Dusen sent these messages because he wanted to limit the disclosure of his activities. According to Mr. Van Dusen, he then consulted with an attorney as to whether he should still attend the November 1 swearing-in and was advised to attend the ceremony and obtain his Maryland law license.

Mr. Van Dusen testified that he was aware that this legal advice was questionable and he later fired the attorney for providing such advice. The hearing judge found Mr. Van Dusen’s testimony regarding the advice he received from this attorney to be inconsistent and not credible. Swearing-in Ceremony Mr. Van Dusen appeared in this Court on November 1, 2012 and took the oath to become a member of the Maryland Bar at that time. Mr. Van Dusen did not alert the Court — or SBLE or the Commission — concerning his use of hidden cameras to spy on his tenants, nor the police investigation that had followed its discovery a few weeks earlier by Ms. Prywes. ⁴²² Criminal Charges On December 13, 2012, a statement of charges was filed against Mr. Van Dusen in the District Court of Maryland, sitting in Montgomery County, charging him with 15 misdemeanor counts related to his surreptitious viewing and recording of his female tenants. 5 Mr. Van Dusen asked for a jury trial and the case was transferred to the Circuit Court for Montgomery County.

According to Mr. Van Dusen, he informed the District of Columbia Bar of the criminal charges and withdrew his application for admission in that jurisdiction. However, he did not inform SBLE, the Commission, or this Court. Civil Actions In December 2012 and January 2013, Ms. Prywes, Mr. Woodhams, and Ms. Malova filed civil actions against Mr. Van Dusen relating to his surreptitious viewing and recording of them. In January 2013, Ms. Prywes and Mr. Woodhams sought a prejudgment attachment of Mr. Van Dusen’s home in Chevy Chase.

The trial court initially denied the motion. In March 2013, Ms. Prywes and Mr. Woodhams refiled the motion to attach, which the court granted. Between the initial attempt to attach his house in January 2013 and the second attempt in March 2013, Mr. Van Dusen transferred title to the house from himself as sole owner to himself and his estranged wife as tenants by the entirety. (At that time, Mr. Van Dusen had been separated from his wife for approximately 10 years; his wife’s name had never been on the deed before. 6 ) Mr. Van Dusen’s wife later signed a ⁴²³ quitclaim deed transferring title back to Mr. Van Dusen as sole owner.

In an arrangement apparently negotiated between Mr. Van Dusen’s son and the attorneys for the plaintiffs in the civil actions, the property was sold to an investment company related to the son and listed for sale. Under the agreement, Mr. Van Dusen was to receive credit for three times the actual amount of money paid to the victims with the “surplus” credit applied to their liens on the property. All three plaintiffs prevailed in a jury trial on the civil actions and obtained judgments against Mr. Van Dusen. The judgment in favor of Ms. Prywes was approximately $1,000,000, the judgment in favor of Mr. Woodhams was approximately $400,000, and the judgment in favor of Ms. Malova was approximately $600,000.

As of the time of the hearing in this proceeding, Ms. Malova, Mr. Woodhams, and Ms. Prywes had collected some but not all of the judgment. Criminal Conviction On April 16, 2013, Mr. Van Dusen entered guilty pleas as to three counts of violating Maryland Code, Criminal Law Article (“CR”), § 3-902(c) (visual surveillance of an individual in a private place without consent and with prurient intent), for surreptitiously recording three different tenants on August 12, 2011, February 1, 2012, and September 16, 2012, respectively. (During the course of these disciplinary proceedings Mr. Van Dusen also admitted to illegally recording his tenants on January 21, 2012.) Mr. Van Dusen was sentenced on July 2,2013 to three years incarceration, all suspended, and placed on five years supervised probation. 7 He was also fined $2,500. The State entered a nolle prosequi as to the remaining counts.

Mental Health & Treatment In 2002, Mr. Van Dusen had been briefly hospitalized when he reportedly threatened to take his own life. In May 2010, ⁴²⁴ Mr. Van Dusen had an initial mental health evaluation and psychological consultation at the Veterans Administration Hospital. At that time he complained of various stressors, including the bar exam and his living arrangements. He declined a referral to mental health services due to his concerns about passing the character and fitness evaluation of the bar admission process.

During the hearing in this matter, the Commission offered the testimony of psychiatrist Jeffrey S. Janofsky, MD, who was accepted by the hearing judge as an expert. According to Dr. Janofsky, at the time of the surreptitious videotaping, Mr. Van Dusen was suffering from Voyeuristic Disorder and Major Depressive Disorder — Mild. Dr. Janofsky defined Voyeuristic Disorder as a sexual urge or desire to spy on others engaging in sex or undressing that is acted on with a non-consenting person or which causes clinically significant distress or impairment in social, occupation or other areas of functioning. Dr. Janofsky testified that Mr. Van Dusen had the capacity to appreciate that his conduct was wrong and to control the behavior but chose not to.

Dr. Janofsky described the treatment that he understood Mr. Van Dusen had obtained for his condition. As of the fall of 2014, Mr. Van Dusen was receiving weekly psychotherapy and taking a low dose of antidepressant medication. He was also attending a weekly meeting of Sex and Love Addicts Anonymous, a 12-step program modeled on Alcoholics Anonymous. Dr. Janofsky testified that he believed that the 12-step program would be ineffective because the group was not led by a professional. 8 ⁴²⁵ Mr. Van Dusen introduced the deposition testimony of Lawrence Stouter, a licensed clinical professional counselor, who had evaluated Mr. Van Dusen in connection with the criminal case.

Mr. Stouter was qualified by the hearing judge as an expert in professional counseling. Mr. Stouter diagnosed Mr. Van Dusen as suffering from bipolar disorder, sex addiction, and severe depressive disorder of a recurrent nature. Dr. Janofsky disagreed with Mr. Stouter’s diagnosis but agreed with Mr. Stouter’s recommendations to the extent they called for sex-specific treatment with a trained professional. The hearing judge noted areas of agreement and disagreement between Dr. Janofsky and Mr. Stouter and ultimately concluded that Dr. Janofsky’s opinions were supported by clear and convincing evidence.

II Discussion The hearing judge concluded that Mr. Van Dusen violated MLRPC 8.1(a) and (b) and 8.4(a), (b), (c), and (d), but that Mr. Van Dusen did not violate MLRPC 3.3(a). We review the hearing judge’s conclusions of law de novo — ie., without any special deference. Maryland Rule 16-759(b)(l). MLRPC 3.3 (candor toward the tribunal) MLRPC 3.3 states in relevant part: A lawyer shall not knowingly: (1) 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 lawyer; (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client ...

MLRPC 3.3, by its plain language, applies to a “lawyer.” This Court has not previously considered whether a bar applicant violates MLRPC 3.3 by making a false statement to this Court in connection with an application for admission. The hearing judge concluded that Mr. Van Dusen did not ⁴²⁶ violate MLRPC 3.3 because Mr. Van Dusen was not a lawyer when he appeared before this Court on October 4, 2012 and falsely asserted that he had not engaged in criminal conduct. The Commission has not excepted to that legal conclusion. We agree that, based on the plain language of MLRPC 3.3, the rule does not apply to an applicant.

As a comment to the rule indicates, it is directed at attorneys acting in a representational capacity. See MLRPC 3.3 Comment [1] (stating this rule “governs the conduct of a lawyer who is representing a client in the proceedings of a tribunal ... [and] when the lawyer is representing a client in an ancillary proceeding .... ”). This conclusion is also implicitly confirmed by MLRPC 8.1, which includes a substantially similar proscription against false statements that is specific to bar applicants. MLRPC 8.1 (material false statement or omission in bar admission matter) MLRPC 8.1(a) prohibits a bar applicant from