Attorney Grievance Commission v. Garland

³⁸⁵ RAKER, Judge. The Attorney Grievance Commission, acting through Bar Counsel, filed a petition for disciplinary action against Thomas A. Garland, Respondent, for violation of the Rules of Professional Conduct. The petition alleged that Respondent violated Rules 8.4(b) and 8.4(d). 1 Bar counsel recommends an indefinite suspension. Pursuant to Maryland Rule BV9(b), 2 we referred the matter to Judge Clayton Greene, Jr. of the Circuit Court for Anne Arundel County to make findings of fact and conclusions of law.

Following an evidentiary hearing, Judge Greene found that Respondent had violated Rules 8.4(b) and 8.4(d). Respondent filed exceptions to Judge Greene’s findings. I. The charges in this matter arose out of Respondent’s conduct in August, 1992, resulting in his conviction for driving under the influence of alcohol and driving on a suspended license, and his subsequent failure to comply with the order of the circuit court commanding him to report to the Prince George’s County D.W.I. treatment facility. Although these convictions were reversed on appeal, Bar Counsel proceeded ■with this disciplinary action.

After an evidentiary hearing in ³⁸⁶ this disciplinary matter, Judge Greene made the following findings of fact and conclusions of law: “1) The Respondent was admitted as a member of the Maryland Bar on October 1, 1959. The Review Board, pursuant to BV-7 of the Maryland Rules of Procedure, directed Bar Counsel to file charges against the Respondent relating to disciplinary actions stemming from the outcome of court proceedings in Anne Arundel County before the Honorable Lawrence H. Rushworth. “2) The Complainant, Joseph Murtha, Esquire, Senior Assistant State’s Attorney for Howard County, notified Bar Counsel in a letter dated November 3, 1993 of the Respondent’s conviction and the Respondent’s failure to report to the Prince George’s County D.W.I. Facility on October 8, 1993. “3) Further, that on or about October 29, 1993, the Circuit Court for Anne Arundel County issued a bench warrant as a result of Respondent’s failure to report to the D.W.I. facility. “4) That on or about December 17, 1993, Judge Rush-worth determined that the Respondent violated the terms of his probation and imposed a six (6) month sentence to be served at the Howard County Detention Center. “5) On or about September 21, 1993, the Respondent was convicted during a court trial before the Honorable Lawrence H. Rushworth of the Circuit Court for Anne Arundel County on charges of driving under the influence of alcohol and driving while suspended. Judge Rushworth was specially assigned to hear the charges against Mr. Garland because the judges of the Circuit Court for Howard County all had recused themselves. The facts presented at the trial on September 21, 1993 revealed that the Respondent operated a dark sedan in a residential community at night in an erratic manner.

The Respondent’s vehicle passed another vehicle on a curve. The Respondent’s front tire was flat and the vehicle crossed the double yellow line. Trial Transcript, p. 22. The independent witness who observed the driving described the odor emanating from the vehicle as ³⁸⁷ the smell of “burning rubber.” When the vehicle came to rest, the witness described the driver as sitting up and then falling back over to the right while the vehicle was parked.

Trial Transcript, p. 25. Officer Denton was called to the scene because of a reported driver slumped over the steering wheel of a vehicle. Upon arriving at the scene, the officer observed the vehicle parked at the curb with a flat tire and the driver was slumped sideways in the driver’s seat. Trial Transcript, p. 31.

The hood was hot to the touch. The officer identified the driver of the vehicle to be the Respondent, Thomas A. Garland. Trial Transcript, pp. 30-34. The Respondent had a strong odor of alcohol on his breath, his eyes were glassy and watery, his face was red and flushed, his eyes were bloodshot, and his speech was slurred and the Respondent was confused.

The Respondent stumbled getting out of the vehicle and used the car for support when getting out. Trial Transcript, p. 34. With regard to the field sobriety test, the Respondent was asked to recite the ABCs and the officer stated that the Respondent responded as if he were singing a song “... all of the letters were slurred together.” When the officer asked the Respondent if he had had anything to drink, the Respondent replied that he had had nothing to drink. Trial Transcript, p. 43.

The Respondent refused to take the breathalyzer test. Trial Transcript, p. 44. “After considering the motions and arguments of the State and the defense, Judge Rushworth determined, using the Reasonable Doubt Standard, that the Respondent was guilty of driving while under the influence of alcohol on August 26, 1992 and driving while suspended on September 6,1992 based upon another factual scenario. “6) On October 1, 1993, Judge Rushworth sentenced the Respondent to six (6) months incarceration with all but thirty-three (33) days suspended. The Respondent was ordered to serve the thirty-three days at the Prince George’s County D.W.I. Facility to commence on October 8, 1993. Additionally, the Court imposed a $500.00 fine and placed the Respondent on supervised probation for four (4) ³⁸⁸ years under the supervision of Richard Vincent, Director of Lawyer Counseling for the Maryland State Bar Association.

The Respondent was ordered not to operate a motor vehicle and the Court set an appeal bond of $25,000.00. “7) At sentencing, Judge Rushworth stated that alcoholism has “misdirected Mr. Garland’s ability to pursue his profession and the conviction for driving under the influence of alcohol was his third offense.” The judge further stated at sentencing that the Respondent should be kept off the street because, in the judge’s opinion, he was a “loose cannon.” In pronouncing his sentence, the judge stated in open court that the Respondent must surrender himself Friday, a week (October 8, 1993) to the Prince George’s County D.W.I. Facility for thirty-three (33) days. The judge suspended the sentence with the assurance that immediately upon release, the Respondent would contact Richard Vincent for supervision of his drinking problem. Judge Rushworth also ordered that the Respondent was not to drive. Sentencing Transcñpt, p. 13.

In setting the appeal bond at $25,000.00, the trial judge stated that he believed that the Respondent had an alcoholism problem to address even though the Respondent did not believe he had one. Judge Rushworth further stated that the Assistant State’s Attorney had reported to him that he had smelled alcohol on the Respondent’s breath on occasions when the Respondent was in court within the past year and that the $25,000.00 appeal bond would be appropriate to protect the interests of society. At least twice, the trial judge directed the Respondent to surrender to the D.W.I. facility no later than 5:00 p.m. on October 8,1993. Assistant State’s Attorney Murtha was directed to prepare a written order.

The written order was signed on October 5, 1993. The written order directed the Respondent to appear at the D.W.I. facility at 9:00 a.m. on October 8, 1993, as opposed to 5:00 p.m. The written order was postmarked to the Respondent on October 7, 1993. The Respondent testified that he received the written order late in the afternoon of October 8, 1993.

On October 8,1993, the Respondent did not report to the D.W.I. facility. ³⁸⁹ The Respondent admits that he never made an effort to report to the Prince George’s County D.W.I. Facility on October 8, 1993. He did not call Judge Rushworth after receiving the order on October 8,1993 and he never contacted Mr. Bennett or the director of the Lawyer Counseling Service for Maryland State Bar Association as directed by the Court. The Respondent did not report to the D.W.I. facility or call them. “8) On October 8, 1993, the Respondent appeared in the Circuit Court for Baltimore County engaged as counsel in the trial of a case before the Honorable J. Norris Byrnes. “9) Respondent filed a Notice of Appeal on November 1, 1993. The Respondent did not file for a stay of the execution of the sentence of Judge Rushworth dated October 1, 1993. “10) The Respondent, after having been found in violation of his probation, was incarcerated on or about December 17, 1993.

After incarceration, the Respondent was released pursuant to a Writ of Habeas Corpus filed by him. “11) In August, 1994, the Court of Special Appeals overturned the convictions rendered by Judge Rushworth on the basis of the denial of the Respondent’s right to a speedy trial. The Court of Special Appeals declined to review any other issues. DISCUSSION “At the BV-10 Hearing, the Respondent contended that by virtue of the reversal of the criminal conviction, the Respondent is innocent of all charges and that his alleged misconduct was before the Court of Special Appeals and they chose not to reach the point. Moreover, the Respondent contends that since Judge Rushworth’s written order was mailed October 7, 1993 and received in the late afternoon of October 8,1993, it was impossible for him to comply with the Court’s Order to report to the facility by 9:00 a.m. on October 8, 1993.

Accordingly, the Respondent further ³⁹⁰ contends that the written order expired by its own terms when it reached the Respondent. “Bar Counsel contends that the Respondent’s conduct is in violation of the Rules of Professional Conduct, specifically Rule 8.4____ “It is professional misconduct for a lawyer to: (b) commit a criminal act that reflects adversely on the lawyer’s honesty and trustworthiness or fitness as a lawyer in other respects; (d) engage in conduct that is prejudicial to the administration of justice.” Bar Counsel has abandoned any contention that the Respondent is incompetent as defined by Maryland BV-l(i). “The Court finds that the Respondent by his actions has violated Rule 8.4, sub-section (b) and Rule 8.4, subsection (d). The reversal by the Court of Special Appeals does not control the disciplinary proceeding. A criminal conviction is not required to find a violation of Rule 8.4. See Attorney Grievance Commission v. Deutsch, 294 Md. 353 , 450 A.2d 1265 (1982) where the Court made reference to former rule DR 1-102(A)(3).

The Court’s position was confirmed in Attorney Grievance Commission v. Proctor, 309 Md. 412 , 524 A.2d 773 (1987) when the Court stated that all that is required is clear and convincing evidence of conduct that constitutes the commission of the offense. The evidence presented at the Respondent’s trial is both clear and convincing that on August 26, 1992 he operated a motor vehicle at night, erratically, while under the influence of alcohol. This was at least the Respondent’s third alcohol related driving offense. The Respondent violated Judge Rush-worth’s probation by failing and refusing to enter into alcohol counseling, either through the D.W.I. facility or under the supervision of Mr. Vincent.

Not only were the Respondent’s actions criminal, but they likewise demonstrated conduct prejudicial to the administration of justice. In a situation where an attorney refuses to obey the lawful order of a court, it shows obvious contempt for the very same court of which the Respondent is an officer. “The Respondent’s contention that he did not receive the judge’s order timely is totally void of any merit. The judge ³⁹¹ recited in open court at the time of sentencing his concerns about the Respondent’s need for treatment for alcoholism. The judge directed the Respondent to report to the D.W.I. Facility in Prince George’s County no later than 5:00 p.m. on October 8, 1993.

Further, to ensure that the Respondent would comply with the Court’s Order, the sentencing judge set an appeal bond of $25,000.00 with the direction that he wanted to keep the Respondent off the street, describing the Respondent as a “loose cannon.” Instead of complying with the Court’s Order, the Respondent flagrantly ignored the Order. Instead of reporting to the D.W.I. facility on October 8, 1993 or seeking counseling from the director of Lawyer Counseling for the Maryland State Bar, the Respondent went about his normal pursuits of practicing law in Baltimore County on the date he was required to seek treatment. His conduct was clearly prejudicial to the administration of justice and in violation of the Rules of Professional Conduct. “Wherefore, it is this 14th day of August, 1996, found by the Circuit Court for Anne Arundel County, for the reasons set forth herein, that the Respondent, Thomas A. Garland, has violated the following cited disciplinary rules of the Code of Professional Responsibility; to wit: Rule 8.4(b) and 8.4(d).” Bar counsel took no exceptions to Judge Greene’s findings. He states that “Respondent’s conduct demonstrates that he knowingly engaged in criminal conduct, driving under the influence of alcohol and with a suspended license....

Likewise, his total disregard for the order of the court requiring him to report for treatment subsequent to his conviction shows contempt for the court and interference with the proceedings of that body.” Bar Counsel recommends that this Court impose an indefinite suspension. Respondent filed exceptions to Judge Greene’s findings of fact and conclusions of law. Respondent prays that the matter be dismissed and no sanction be imposed. ³⁹² II. This Court has original and complete jurisdiction over disciplinary proceedings.

Attorney Griev. Comm’n v. Kent, 337 Md. 361, 371 , 653 A.2d 909, 914 (1995). In this regard, we make an independent and in-depth review of the entire record, with particular attention to the evidence relating to the disputed factual findings. Bar Ass’n v. Marshall, 269 Md. 510, 516 , 307 A.2d 677, 680-81 (1973).

A hearing court’s findings of fact are prima facie correct and will not be disturbed unless they are shown to be clearly erroneous. Attorney Griev. Com’n v. Goldsborough, 330 Md. 342, 347 , 624 A.2d 503, 505 (1993). The ultimate decision as to whether an attorney has engaged in professional misconduct rests with this Court.

Attorney Griev. Comm’n v. Joehl, 335 Md. 83, 88 , 642 A.2d 194, 196 (1994). Respondent filed the following exceptions to Judge Greene’s findings: 1. The Hearing Judge completely failed to consider and make findings of fact with respect to Respondent’s position that he was denied fundamental due process of law in the proceedings of the Inquiry Panel under Rule B.V.6, the minimum requirements of which are spelled out in that Rule. 2.

The Hearing Judge indulged in a fact finding expedition relative to a case which had been reversed on Appeal in order to support the efficacy of an Order of Court (the failure of compliance with which is the nub of Petitioner’s case) which Order was itself invalidated by the reversal. 3. The Hearing Judge was in error in determining as a matter of law that the Order of Judge Rushworth received by Respondent on October 8, 1993 was effective to require any compliance by him. We will address his exceptions seriatim. 1. Respondent argues before this Court that Judge Greene failed to consider and make findings with respect to his ³⁹³