Attorney Grievance Commission v. Garfield

HARRELL, Judge. Pursuant to Maryland Rule 16-709(a) 1 , Bar Counsel, on behalf of the Attorney Grievance Commission (Petitioner) and at the behest of the Review Board, filed with this Court a petition for disciplinary action against Craig Steven Garfield, Esquire (Respondent). 2 In the petition, Bar Counsel alleged violations of the Maryland Rules of Professional Conduct (MRPC) 1.1, 1.3, 1.4, 1.16, and 8.4(d) in connection with ⁹⁰ Respondent’s representation of Artinus Shands 3 , Darron C. Addison, Lillian Johnson, Samuel C. Veney, Drucella Mann, Diane Postal, and Robert Yinger (the latter in two separate matters). 4 ⁹¹ This Court referred the matter to Judge John M. Glynn of the Circuit Court for Baltimore City to conduct an evidentiary hearing and make findings of fact and conclusions of law in accordance with Md. Rules 16-709(b) 5 and 16-711(a) 6 . After an evidentiary hearing held on 24 September 2001, the hearing judge found by clear and convincing evidence that Respondent violated MRPC 1.1, 1.3, 1.4(a), 1.16, and 8.4(d). Petitioner, pursuant to Md. Rule 16-711(b)(2) 7 , filed with this Court exceptions to the findings of facts and conclusions of law, and a recommendation for sanction (2 year suspension and specific conditions for reinstatement).

Respondent filed a reply to Petitioner’s exceptions and a recommendation for sanction (urging an unspecified “remedial form of sanction,” though earlier he proposed a conditional public reprimand). ⁹² I. From the evidentiary record below, the hearing judge, in a memorandum dated 11 October 2001, explained the following: In his complaint, Bar Counsel contends that the Respondent engaged in professional misconduct as defined by Rule 16-701 (k) of the Maryland Rules of Procedure in cases involving: Renee B. Johnson [ (for her son, Artinus Shands) ], Darr[o]n C. Addison, Lillian Johnson, Samuel C. Veney, D[ruce]lla Mann, Diane Postal and Robert Yinger, in two (2) separate matters. At hearing, Bar Counsel voluntarily dismissed the allegations with respect to Samuel C. Veney. It should be noted that the Mann, Postal, and Yinger cases were brought to the attention of Bar Counsel voluntarily by Respondent. All of the matters which remain for consideration by the Court were civil matters.

It is undisputed that these cases were either dismissed for want of prosecution or barred by limitations as a result of Respondent’s professional lapses. 8 During all relevant periods, the Respondent did not maintain professional liability insurance. Bar Counsel alleges that Respondent behaved unethically and unprofessionally in violations of the following Maryland Rules of Professional Conduct: Rule 1.1 Competence Rule 1.3 Diligence ⁹³ Rule 1.4 Communication Rule 1.16 Declining or Terminating Representation Rule 8.4 Misconduct By pleading, Respondent admits Ms violation of Rule 1.1 but adds that at all times he “would deny that he does not possess the required legal knowledge or skill to competently represent his clients.” Respondent admits the alleged violation of Rule 1.3 regarding Diligence; Respondent admits the alleged violation of Rule 1.4 regarding Communications; only with respect of sub[ Jsection (a), but denies violating subparagraph (b) of the Rule; Respondent admits violating Rule 8.4 regarding Misconduct; Respondent denies that he violated Rule 1.16 regarding Declining or Terminating Representation. Continuing, the hearing judge noted that “Respondent’s presentation focused on the issue of mitigation,” 9 and summarized his evidence: [Respondent] called as witnesses, Richard E. Vincent, Director of Lawyer Counseling for the Lawyer Assistance Committee of the Bar; and Dr. John E. Davis, an expert in psychiatry 10 and substance abuse. He also testified on Ms ⁹⁴ own behalf regarding his personal history with particular emphasis on his contention that his abuse of cocaine was at the root of his professional derelictions.

Both expert witnesses and Respondent contended that the root cause of Respondent's] professional failures was his drug abuse. They emphasized that he cooperated fully with Bar Counsel, apologized for his failings, and offered to make his clients whole. Richard Vincent contended that in cases involving drug abuse, it is particularly important that a “hammer” continue to hang over the head of the drug abuser to ensure continued compliance with a program that requires the avoidance of drug use. Both witnesses stated that during the period of his professional derelictions, the Respondent was struggling through a very bad divorce, and for a time was involved in an additional relationship which he found emotionally overwhelming.

Likewise, they testified that they had worked extensively with Respondent and that he had “embraced the recovery program.” He continues to be supervised by Dr. Davis to insure that he not use illegal drugs and regularly attends therapy and meetings of Narcotics Anonymous. Dr. Davis believed that the Respondent’s use of drugs, in the context of his family and social problems, created a psychological state of extreme distractibility. Dr. Davis concluded that it was Respondent’s drug use that caused him to miss various filing deadlines resulting in the dismissal of all lawsuits in the cases alleged by Bar Counsel. However, he testified that since seeking drug treatment and acknowledging his drug abuse problems which date back to the mid 90’s, he is now handling only criminal cases.

Respondent’s defaults occurred principally between the period of 1998 and 2000. Earlier, he was functioning effectively as an attorney. Respondent emphasized that he feels great remorse and hopes to compensate his former clients for the consequences of his failures. Also, he indicated that he was amenable to supervision by another attorney, if he ⁹⁵ were permitted to continue to practice law in the State of Maryland.

Based on the evidence presented and inferentially satisfied to a clear and convincing standard, the hearing judge concluded that Respondent “violated the Maryland Rules of Professional Conduct as alleged, with the exception of Rule 1.4(b) with respect to which,” the hearing judge found “no specific evidence was offered.” In addition, although Respondent “challenged the allegations concerning Rule 1.16,” the judge found that “the record support[ed] a finding that he violated th[at] rule.” It was “plain” to the hearing judge, “that [Respondent’s] continued representation of clients was impaired by the use of drugs, thereby violating the rules of professional conduct.” “Accordingly,” he found “Respondent in violation of Rules 1.1, 1.3,1.4(a), 1.16, and 8.4[ (d) ].” The hearing judge went on to explain that “[t]he central issue in this case eoncem[ed] whether the Respondent’s drug abuse was the root cause of subsequent professional derelictions.” On that issue, the hearing judge concluded that: [t]he record clearly establishes, and the Court is persuaded by [a] preponderance of the evidence, that for two decades Mr. Garfield practiced criminal law successfully in the courts of the State of Maryland and was regarded both by his fellow practitioners and the Bench as an asset to the Bench, Bar and Community. The Court is persuaded by a preponderance of the evidence that Respondent’s professional failures were substantially the result of drug abuse. While he may have struggled with his domestic and relationship problems, it was his drug abuse that pushed him across the line which separates those who struggle and succeed, if only barely, from those who fail.... Respondent’s expert witnesses and the testimony of Respondent support these findings.

They are also supported by the timing of Respondent[’]s failures which seem related to his most severe drug abuse, and by the nature of those ⁹⁶ failures, which seem the product of his inability to focus on detailed office responsibilities. This is particularly true in those areas of the law which he was the least experienced and expert. The Court will not presume to speculate about exactly how Respondent’s other struggles played into his addiction, and how they all worked to undermine his professionalism. It seems plain on this record in this case, that but for drug abuse, Respondent would have been an unlikely candidate for professional discipline.

(Footnote omitted). Respondent filed no exceptions to the hearing judges findings of fact or conclusions of law. On 29 October 2001, Respondent recommended a sanction of a public reprimand subject to “continued drug therapy,” monitoring by Mr. Vincent’s office, limitation of his practice to criminal law, and “supervision by an attorney subject to reporting requirements to Bar Counsel.” Petitioner, on 2 November 2001, filed with the Court exceptions challenging the hearing judge’s finding that he was “ ‘persuaded by a preponderance of the evidence that Respondent’s professional failures were substantially the result of drug abuse.’ ” According to Petitioner, the hearing judge’s findings “[we]re inconsistent with the evidence from the Respondent’s own testimony and the testimony from Respondent’s own expert.” Based on Standard 4.42 of the ABA Standards for Imposing Lawyer Sanctions, Petitioner recommended a sanction of a two year suspension from the practice of law. 11 On 20 November 2001, Respondent filed a reply to Petitioner’s exceptions disagreeing “with Petitioner’s claim that [the hearing judge’s] findings were inconsistent with the evidence,” and suggesting “that a remedial form of sanction would be more appropriate.” ⁹⁷ II. We recently explained in Attorney Grievance Comm’n v. Snyder, 368 Md. 242, 253 , 793 A.2d 515, 521 (2002), that “[a]s the Court of original and complete jurisdiction for attorney disciplinary proceedings in Maryland, we conduct an independent review of the record.” (Citing Attorney Grievance Comm’n v. Garland, 345 Md. 383, 392 , 692 A.2d 465, 469 (1997)).

See also Attorney Grievance Comm’n v. Wallace, 368 Md. 277, 288 , 793 A.2d 535, 542 (2002) (quoting Garland). “The hearing judge’s findings of fact will be accepted unless we determine that they are clearly erroneous.” Id. (citing Attorney Grievance Comm’n v. Sachse, 345 Md. 578, 589 , 693 A.2d 806, 811 (1997) (quoting Attorney Grievance Comm’n v. Boyd, 333 Md. 298, 303 , 635 A.2d 382, 384 (1994))). As to “the hearing judge’s conclusions of law, however, ‘our consideration is essentially de novo,’ as ‘the ultimate determination ... as to an attorney’s alleged misconduct is reserved for this Court.’ ” Attorney Grievance Comm’n v. Thompson, 367 Md. 315, 322 , 786 A.2d 763, 768 (2001) (alteration in original) (quoting Attorney Grievance Comm’n v. Briscoe, 357 Md. 554, 562 , 745 A.2d 1037, 1041 (2000); Attorney Grievance Comm’n v. Glenn, 341 Md. 448, 470 , 671 A.2d 463, 473 (1996)). The only exception in this matter was taken by Petitioner regarding the hearing judge’s finding that Respondent’s “professional failures were substantially the result of drug abuse.” This exception relates to whether we should treat Respondent’s drug addiction as a mitigating factor in our determination of the appropriate sanction for Respondent. 12 ⁹⁸ III.

When considering sanctions, it is well settled that: [t]he purpose of disciplinary proceedings is to protect the public rather than to punish the erring attorney. The public interest is served when this Court imposes a sanction which demonstrates to members of this legal profession the type of conduct that will not be tolerated. By imposing such a sanction, this Court fulfills its responsibility to insist upon the maintenance of the integrity of the Bar and to prevent the transgression of an individual lawyer from bringing its image into disrepute. Therefore, the public interest is served when sanctions designed to effect general and specific deterrence are imposed on an attorney who violates the disciplinary rules.

Attorney Grievance Comm’n v. Dunietz, 368 Md. 419, 428 , 795 A.2d 706, 711 (2002) (internal quotations omitted) (quoting Wallace, 368 Md. at 289 , 793 A.2d at 542-43 (citations omitted)). See also Attorney Grievance Comm’n v. Lane, 367 Md. 633, 642 , 790 A.2d 621, 626 (2002); Attorney Grievance Comm’n v. Harris, 366 Md. 376, 405 , 784 A.2d 516, 532-33 (2001); Attorney Grievance Comm’n v. Zdravkovich, 362 Md. 1, 31-32 , 762 A.2d 950, 966 (2000). “ ‘Of course, what the appropriate sanction for the particular misconduct is, in the public interest, generally depends upon the facts and circumstances of the case,’ ” Dunietz, 368 Md. at 428-29 , 795 A.2d at 711 (citation omitted), and “tak[es] account of any particular aggravating or mitigating factors.” Attorney Grievance Comm’n v. Glenn, 341 Md. 448, 484 , 671 A.2d 463, 481 (1996) (citing Attorney Grievance Comm’n v. Myers, 333 Md. 440, 447 , 635 A.2d 1315, 1318 (1994)). In this case, the hearing judge, based on evidence presented by Respondent, found that Respondent’s professional failures “were substantially the result” of his drug abuse. That finding is significant because we “have recognized addiction to drugs as a mitigating factor when the addiction is ‘to a substantial degree responsible for the conduct of the attorney.’ ” Attorney Grievance Comm’n v. Mandel, 316 Md. 197 , ⁹⁹ 201, 557 A.2d 1329, 1331 (1989).

Indeed, even in cases otherwise warranting disbarment, we have held that “ ‘compelling extenuating circumstances,’ ” specifically, “serious and utterly debilitating mental or physical health conditions,” including drug addiction, can justify a lesser sanction. Attorney Grievance Comm’n v. Vanderlinde, 364 Md. 376, 413-14 , 773 A.2d 463, 485 (2001). See also Attorney Grievance Comm’n v. Williams, 335 Md. 458, 474 , 644 A.2d 490, 497 (1994) (“We have said that a sanction less severe than disbarment is not warranted absent evidence that the addiction, to a substantial extent, was the responsible, precipitating and root cause of the misappropriation.”). Petitioner took exception to the hearing judge’s finding on this matter, maintaining that his finding was “inconsistent” with Respondent’s testimony and the testimony of Respondent’s expert.

We disagree. As we explained at supra page 97, we review the factual findings of a hearing judge under a clearly erroneous standard. In determining whether the findings here meet that standard, we recognize that the judge “may elect to pick and chose which evidence to rely upon” and that “an attorney in a disciplinary proceeding need only establish factual matters in defense of an attorney’s position by the preponderance of evidence, including whether mitigating circumstances existed at the time of the alleged misconduct.” 13 ¹⁰⁰ Attorney Grievance Comm’n v. Hines, 366 Md. 277, 291 , 783 A.2d 656, 664 (2001) (quoting Attorney Grievance Comm’n v. Sheridan, 357 Md. 1, 17-18 , 741 A.2d 1143, 1152 (1999) (citation omitted)). In rendering his finding regarding Respondent’s substance abuse, the hearing judge relied, in part, on the testimony of Dr. Davis (Respondent’s therapist and an expert in psychology with a focus on substance abuse) and Mr. Vincent (director of the Lawyer Assistance Program for the Maryland State Bar Association), both of whom emphatically stated that, but for his addiction, Respondent would not have perpetrated the seven instances of professional misconduct admitted to have occurred here.

In particular, when asked his opinion “as to whether there was a connection” between Respondent’s substance abuse and the miscondhct “alleged in Bar Counsel’s petition,” Dr. Davis described it as “a one-to-one correlation.” According to Dr. Davis, [t]he connection is that once you begin to use these substances and use them in large doses or use them regularly, it begins to create changes in brain function. And the changes that occur in brain function are primarily distracti-bility so that when you’re using these drugs, they have not only an acute effect, that is the effect from the drug that’s in the blood stream, but they have a post-acute effect. ... They injure the brain networks and the networks don’t work right, and it takes a while for the body to heal and repair these. He gave a history of repeated use of these drugs, of the cocaine to go up, the tranquilizers to come down so he could sleep.

And that kind of up and down creates disruption of the normal function of the brain pathways. But the practical result of that is that you spend an inordinate amount of time just kind of controlling yourself and functioning. And the niceties that we normally look out [sic] that require higher brain function are not working very well. And when you’re hung over, you’re not functioning very well in other aspects of your life. ¹⁰¹ ... [H]e was not as attentive on his game under those conditions as he would be normally, and so several of these cases fell through the cracks, and it’s perfectly understandable.

In Dr. Davis’s opinion, “based on thirty years of experience,” “but for the substance abuse, [Respondent] would not have had these problems.” “[I]f you take the drug out of it,” Dr. Davis explained, Respondent “would have been able to function. When you add that and you incapacitate him physically and mentally with the drugs and the substances and the acute and post-acute effects of the drugs, then not many people could deal with that. And he couldn’t.” Likewise, Mr. Vincent testified that “at one time” Respondent’s failure to file complaints and prosecute cases “didn’t happen in his practice.” According to Mr. Vincent, when he “looked for a cause” of Respondent’s professional problems, “substance abuse reared its ugly head, and there it was. These things didn’t happen earlier.” Thus, Respondent’s substance abuse was “the only cause” Mr. Vincent pin-pointed for the professional failures.

Based on this testimony, it was not clearly erroneous for the hearing judge to conclude, by a preponderance of the evidence, that Respondent’s drug addiction caused his professional failures in the seven personal injury cases. Respondent provided clear and convincing evidence, through the testimony of his witnesses, that he suffered from a drug addiction and that his escalating addiction caused him to violate the MRPC as charged. We overrule Petitioner’s exception to the hearing judge’s finding on that matter. We turn to the determination of the appropriate sanction to impose for Respondent’s violation of MRPC 1.1, 1.3, 1.4(a), 1.16, and 8.4(d).

Citing Standard 4.42 of the ABA Standards for Imposing Lawyer Sanctions, see supra note 11, Bar Counsel recommends that Respondent be suspended for two years from the practice of law, that his reinstatement be conditioned upon his submitting proof that each of his clients ¹⁰² in the personal injury matters “have been made whole or have otherwise had their losses satisfied,” and that, if reinstated, he continue to be monitored “by the lawyer counseling committee of the Maryland State Bar Association with quarterly reports to Bar Counsel for a period of two years subsequent to” his reinstatement. Respondent, we suppose, urges us to impose a public reprimand, subject to his continued drug therapy, monitoring by the Lawyer Assistance Program for the Maryland State Bar Association, a limitation' his practice be confined to criminal law, and supervision by an attorney subject to reporting requirements to Bar Counsel. In determining the appropriate sanction in attorney grievance actions, we may consider a number of mitigating factors, including: absence of a prior disciplinary record; absence of a dishonest or selfish motive; personal or emotional problems; timely good faith efforts to make restitution or to rectify consequences of misconduct; full and free disclosure to disciplinary board or cooperative attitude toward proceedings; inexperience in the practice of law; character or reputation; physical or mental disability or impairment; delay in disciplinary proceedings; interim rehabilitation; imposition of other penalties or sanctions; remorse; and finally, remoteness of prior offenses. Thompson, 367 Md. at 330 , 786 A.2d at 772 -73 (quoting Attorney Grievance Comm’n v. Jaseb, 364 Md. 464, 481-82 , 773 A.2d 516, 526 (2001) (quoting Glenn, 341 Md. at 488-89 , 671 A.2d at 483 (citations omitted))).

See also Standard 9.3 of the ABA Standards for Imposing Lawyer Sanctions, reprinted in ABA/BNA Lawyer’s Manual on Professional Conduct, at 01:839-01:840. In addition, “a less severe sanction than that ordinarily dictated may be appropriate when an attorney is able to establish the existence of compelling circumstances.” Attorney Grievance Comm’n v. Kenney, 339 Md. 578, 588 , 664 A.2d 854, 858 (1995). As we explained at supra page 98-99, an attorney’s substance abuse may constitute such a compelling circumstance, thereby mitigating the sanction in his or ¹⁰³ her ease, provided the addiction is found to