Attorney Grievance Commission v. Greenleaf

WATTS, J. This attorney discipline proceeding concerns a Maryland lawyer who solicited for sexual acts a person whom the lawyer believed to be under the age of consent. Robert John Greenleaf (“Greenleaf’), Respondent, while serving as the Chief Deputy Clerk of the Court of Special Appeals of Maryland, used the Internet to solicit for sexual acts a law enforcement officer who was posing as a fourteen-year-old or fifteen-year-old girl. Greenleaf s actions came to the attention of the Attorney Grievance Commission (“the Commission”), Petitioner. On March 14, 2013, in this Court, Bar Counsel filed a “Petition for Disciplinary or Remedial Action” against Green-leaf, charging him with violating Maryland Lawyers’ Rule of Professional Conduct (“MLRPC”) 8.4 (Misconduct).

On March 18, 2013, this Court assigned this attorney discipline ¹⁵⁴ proceeding to the Honorable Paul M. Bowman (“the hearing judge”) of the Circuit Court for Kent County. On July 25, 2013, the hearing judge conducted a hearing. On September 19, 2013, the hearing judge filed in this Court an opinion including findings of fact and conclusions of law, concluding that Greenleaf had violated MLRPC 8.4(b) (Criminal Act), 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation), 8.4(d) (Conduct Prejudicial to the Administration of Justice), and 8.4(a) (Violating the MLRPC). On April 8, 2014, we heard oral argument.

For the below reasons, we disbar Greenleaf. BACKGROUND In his opinion, the hearing judge found the following facts, which we summarize. On November 8, 1979, this Court admitted Greenleaf to the Bar of Maryland. Between 1987 and 2004, Greenleaf served as an Assistant State’s Attorney for Dorchester County, an Assistant State’s Attorney for Caroline County, an interim State’s Attorney for Caroline County, and a Senior Assistant State’s Attorney for Dorchester County.

On January 6, 2004, Greenleaf became the Chief Deputy Clerk of the Court of Special Appeals. Greenleaf s office was located at the Robert C. Murphy Courts of Appeal Building. On March 8, 2010, Detective Sergeant Louis Gary Yamin (“DS Yamin”) of the Baltimore Police Department was working undercover for the Cyber and Electronic Crimes Unit. DS Yamin had a Yahoo Messenger account with the username “ravens_girl2003,” which was connected to a Yahoo profile for a female named “Beth.” On March 8, 2010, as “Beth,” DS Yamin entered a Yahoo Messenger chat room entitled “Maryland Romance.” In the chat room, a person with the user-name “delmarvanl9901” initiated a private chat with “Beth,” who almost immediately sent the message “14/f/balto. md[,]” which is Internet language for identifying oneself as a fourteen-year-old female in the Baltimore area. “delmarvanl9901” began discussing sexual topics. “Beth” sent “delmar ¹⁵⁵ vanl9901” two photographs that depicted a young teenage girl. “delmarvanl9901” sent a photograph of himself.

In addition to sending the two photographs, “Beth” e-mailed “delmarvanl9901,” who sent a reply e-mail. DS Yamin learned that Greenleaf was using the IP address from which “delmarvanl9901” had sent the reply e-mail. The IP address belonged to the Maryland Judiciary. DS Yamin matched the photograph that “delmarvanl9901” had sent with a photograph of Greenleaf from the Motor Vehicle Administration’s database.

Thus, it was established that while the Chief Deputy Clerk of the Court of Special Appeals, Greenleaf used a State-owned computer in the Robert C. Murphy Courts of Appeal Building to communicate with “Beth.” Greenleaf believed that “Beth” was a fourteen-year-old or a fifteen-year-old girl. 1 “Beth” repeatedly referred to her age and stated that she was a high school student. The hearing judge expressly rejected Greenleafs allegation that he believed that “Beth” was an adult who was “role-playing” by posing as a fourteen-year-old or a fifteen-year-old girl. On approximately one hundred fifty separate dates, Green-leaf and “Beth” e-mailed and/or chatted with each other. On nearly half of those dates, Greenleaf used his computer at the Robert C. Murphy Courts of Appeal Building to communicate with “Beth.” Greenleafs and “Beth’s” conversations were “consistently sexually explicit.” For example, Greenleaf asked “Beth” to describe her pubic hair, sexual history, bra size, and whether she was taking birth control. 2 Greenleaf often discussed arranging a meeting with “Beth” and described the sexual acts in which he wanted to engage with “Beth.” Greenleaf ¹⁵⁶ “groomed” “Beth” for sexual activity by telling “Beth” that she seemed more mature than a fourteen-year-old or fifteen-year-old girl.

In December 2010, on four separate occasions, Greenleaf sent “Beth” links to pornographic videos. Greenleaf last communicated with “Beth” on January 25, 2011. Finally, in January 2011, Greenleaf was arrested and was placed on administrative leave. On April 1, 2011, Greenleaf was permitted to retire from his position as the Chief Deputy Clerk of the Court of Special Appeals.

On May 31, 2012, Greenleaf tendered an Alford plea 3 to a charge of attempting to violate Md.Code Ann., Crim. Law (2002, 2012 Repl. Vol.) (“CR”) § 11-203 (Sale or Display of Obscene Item to Minor). Green-leaf received probation before judgment.

STANDARD OF REVIEW In an attorney discipline proceeding, this Court reviews for clear error the hearing judge’s findings of fact, and reviews without deference the hearing judge’s conclusions of law. See Md. R. 16-759(b)(2)(B) (“The Court shall give due regard to the opportunity of the hearing judge to assess the credibility of witnesses.”); Attorney Grievance Comm’n v. Reno, 436 Md. 504, 508 , 83 A.3d 781, 783 (2014) (“[T]his Court reviews for clear error a hearing judge’s findings of fact[.]”); Md. R. 16-759(b)(l) (“The Court of Appeals shall review de novo the [hearing] judge’s conclusions of law.”). This Court determines whether clear and convincing evidence establishes that a lawyer violated the MLRPC. See Md. R. 16-757(b) (“The [Commission] has the burden of proving the averments of the petition by clear and convincing evidence.”). ¹⁵⁷ DISCUSSION A. Findings of Fact The Commission does not except to any of the hearing judge’s findings of fact.

Greenleaf excepts to the hearing judge’s finding that he believed that “Beth” was a fourteen-year-old or a fifteen-year-old girl. 4 We overrule Greenleafs exception, as the hearing judge did not clearly err, or err at all, in finding that Greenleaf believed that “Beth” was a fourteen-year-old or a fifteen-year-old girl. The record unequivocally demonstrates that “Beth”: (1) identified herself as a fourteen-year-old girl; (2) repeatedly referred to her age; (3) stated that she was a high school student; and (4) sent two photographs that depicted a young teenage girl. 5 Although Greenleaf told “Beth” that he thought she was a woman in her thirties, the hearing judge credited DS Yamin’s opinion that Greenleaf made the statement as part of his grooming “Beth” for sexual activity, not because Greenleaf actually believed that “Beth” was a woman in her thirties. The record is replete with evidence sufficient to establish that “Beth” identified herself as a fourteen-year-old girl; and, thus, there was sufficient evidence for the hearing judge to have independently rejected Greenleafs claim to have believed Beth a “woman.” Moreover, although a person must state that he or she is an adult to enter a Yahoo Messenger chat room, common sense dictates that a minor could enter a Yahoo Messenger chat room by falsely stating that he or she is an adult. We find no basis to disturb the hearing judge’s express rejection of Greenleafs allegation that he believed ¹⁵⁸ that “Beth” was an adult who was “role-playing” by posing as a fourteen-year-old or a fifteen-year-old girl.

In addition to excepting to certain findings of fact, in an apparent attempt to establish mitigating circumstances, Greenleaf alleges additional facts: (1) he performed well as the Chief Deputy Clerk of the Court of Special Appeals; (2) at the time of his misconduct, he had just returned from sick leave, and was “trouble[ed]” at work because he had been transferred to a secluded office that was away from other employees; (3) he completed “mental health counseling” as a condition of probation; (4) he “suffered ignominy” because of his misconduct; and (5) he “has shown remorse” for his misconduct. The hearing judge did not find that Greenleaf: (1) performed well as the Chief Deputy Clerk of the Court of Special Appeals; (2) suffered from any personal or emotional problems; (3) attempted any kind of rehabilitation; (4) endured any embarrassment; or (5) showed any remorse. As this Court stated in Attorney Grievance Comm’n v. Davy, 435 Md. 674, 694 , 80 A.3d 322, 333-34 (2013): [Ajbsent indications that [a] hearing judge did not consider purported evidence of mitigating factors, where a hearing judge omits the purported evidence of mitigating factors from [the hearing judge’s] opinion, [this Court] may interpret the omission to mean that the hearing judge did not credit the purported evidence of mitigating factors. (Citation and internal quotation marks omitted).

Here, the hearing judge neither credited nor rejected the alleged facts. 6 The record demonstrates that the hearing judge allowed Greenleaf to testify on his own behalf and proffer at length. We see no indication that the hearing judge did not consider Greenleaf s remarks. Given the nature of Greenleaf s proffer and testimony — ie., he performed well at work, he was in a secluded office, and he suffered embarrassment — it is evident ¹⁵⁹ that the hearing judge did not find this information to be mitigating. Even if the facts that Greenleaf alleges were accurate, it strains credulity that some of them — such as Greenleaf s work performance or his being moved to another office — would constitute mitigating factors.

Thus, we do not adopt as mitigating factors the facts that Greenleaf alleges. B. Conclusions of Law The Commission does not except to any of the hearing judge’s conclusions of law. Greenleaf excepts to the hearing judge’s conclusion that he violated CR § 3-324 (Sexual Solicitation of Minor). 7 We overrule Greenleafs exception and uphold all of the hearing judge’s conclusions of law as to the MLRPC. MLRPC 8.4(b) (Criminal Act) “It is professional misconduct for a lawyer to ... commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects[.]” MLRPC 8.4(b).

Under CR § 3-324(b), “[a] person may not, with the intent to commit a violation of ... [CR] § 3-307[,] ... knowingly solicit ... a law enforcement officer posing as a minor[ ] to engage in activities that would be unlawful for the person to engage in under ... [CR] § 3-307[.]” Under CR § 3-307(a)(4), “[a] person may not ... engage in a sexual act with another if the victim is 14 or 15 years old, and the person performing the sexual act is at least 21 years old[.]” Under CR § 3-307(a)(5), “[a] person may not ... engage in vaginal intercourse with another if the victim is 14 or 15 years old, and the person performing the act is at least 21 years old.” ¹⁶⁰ Here, clear and convincing evidence supports the hearing judge’s conclusion that Greenleaf violated MLRPC 8.4(b) by violating CR § 3-324(b). 8 When he was at least twenty-one years old, Greenleaf knowingly solicited DS Yamin (who was posing as “Beth,” a fourteen-year-old or fifteen-year-old girl) for sexual acts and/or vaginal intercourse; for example, Greenleaf asked: “Beth, do you want to have sex with me?” 9 Violating CR § 3-324(b) undeniably adversely reflects on a lawyer’s fitness to continue to practice law. We reject Greenleafs ludicrous contention that he did not violate CR § 3-324(b) because he did not intend to violate CR § 3-307 by immediately engaging in intercourse with “Beth” “then and there[,]” but instead was “preparing] for the future [.]” (Emphasis in original). CR § 3-324(b) simply requires that, at the time of the solicitation, a person intends to violate CR § 3-307 at some point in the future — even if the person does not intend to immediately violate CR § 3-307. MLRPC 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation) “It is professional misconduct for a lawyer to ... engage in conduct involving dishonesty, fraud, deceit[,] or misrepresentation!;.]” MLRPC 8.4(c).

Here, clear and convincing evidence supports the hearing judge’s conclusion that Greenleaf violated MLRPC 8.4(c) by using his computer at the Robert C. Murphy Courts of Appeal Building to communicate with “Beth.” Greenleafs use of the computer in the workplace during work time to violate CR ¹⁶¹ § 3-324(b) constituted conduct involving dishonesty. The Court of Special Appeals would neither expect, condone, nor excuse the use of a court computer for the purpose of solicitation of a minor for sex. Such egregious conduct in violation of a criminal statute designed to protect children clearly involved dishonesty as to Greenleafs appropriate use of time and equipment. Greenleaf could not have reasonably expected to disclose this activity and remain employed as the Chief Deputy Clerk of the Court, or, for that matter, employed in any capacity by the Court.

That said, a lawyer may, at times, make incidental personal use of computer equipment in the workplace without violating MLRPC 8.4(c). Use of computer equipment on multiple occasions — for nearly half of the one hundred fifty dates spanning almost eleven months, from March 8, 2010 through January 25, 2011 — to commit the crime of solicitation a minor for sex involved dishonesty as to Greenleafs employer, the Maryland Judiciary (specifically, dishonesty as to his workplace activities). 10 In sum, it is the extensive use of the computer over a protracted course of time ¹⁶² and that Greenleaf clandestinely used the computer to commit a crime, the solicitation of a minor — i.e., that he secretly committed an offense in the workplace for which he knew his employment could be terminated — that causes us to conclude that his conduct constituted dishonesty in violation of MLRPC 8.4(c). 11 MLRPC 8.4(d) (Conduct Prejudicial to the Administration of Justice) “It is professional misconduct for a lawyer to ... engage in conduct that is prejudicial to the administration of justice[.]” MLRPC 8.4(d). Generally, a lawyer violates MLRPC 8.4(d) where the lawyer’s conduct negatively “impacts ... the public’s perception ... of the courts or legal profession.” Reno, 436 Md. at 509 , 83 A.3d at 784 (citation and internal quotation marks omitted). Here, clear and convincing evidence supports the hearing judge’s conclusion that Greenleaf violated MLRPC 8.4(d).

Greenleaf solicited for sexual acts a person whom he believed to be a fourteen-year-old or fifteen-year-old girl. Greenleaf was arrested and charged, and entered an Alford plea to a charge of attempting to violate CR § 11-203. Greenleaf s misconduct tarnished the public’s perception of both the legal ¹⁶³ profession and Greenleafs employer, the Maryland Judiciary 12 . MLRPC 8.4(a) (Violating the MLRPC) “It is professional misconduct for a lawyer to ... violate ... the” MLRPC.

MLRPC 8.4(a). Here, clear and convincing evidence supports the hearing judge’s conclusion that Greenleaf violated MLRPC 8.4(a). As discussed above, Greenleaf violated MLRPC 8.4(b), 8.4(c), and 8.4(d). C. Sanction The Commission recommends that we disbar Green-leaf.

Greenleaf asks that we reprimand him, “or, at worst,” indefinitely suspend him from the practice of law with the right to apply for reinstatement after one year. This Court sanctions a lawyer not “to punish the” lawyer, but instead “to protect the public and the public’s confidence in the legal profession!)]” Attorney Grievance Comm’n v. Worthy, 486 Md. 633 , 643, 84 A.3d 113, 119 (2014) (citation and internal quotation marks omitted). This Court protects the public by: (1) “deterr[ing]” other lawyers from engaging in similar misconduct; and (2) suspending or disbarring a lawyer who is “unfit to continue” to practice law. Attorney Grievance Comm’n v. Gerace, 433 Md. 632, 649 , 72 A.3d 567, 577 (2013) (citation omitted).

In determining an appropriate sanction, this Court considers: “(a) the duty violated; (b) the lawyer’s mental state; (c) the potential or actual injury caused by the lawyer’s ¹⁶⁴ misconduct; and (d) the existence of aggravating or mitigating factors.” American Bar Association, Standards for Imposing Lawyer Sanctions (“ABA Standards”) at III.C.3.0 (1992) (paragraph breaks omitted). 13 Aggravating factors include: (a) prior disciplinary offenses; (b) dishonest or selfish motive; (c) a pattern of misconduct; (d) multiple offenses; (e) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the [Commission]; (f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process; (g) refusal to acknowledge wrongful nature of conduct; (h) vulnerability of victim; (i) substantial experience in the practice of law; (j) indifference to making restitution; [and] (k) illegal conduct[.] ABA Standards at III.C.9.22 (paragraph breaks omitted). Mitigating factors include: (a) absence of a prior disciplinary record; (b) absence of a dishonest or selfish motive; (c) personal or emotional problems; (d) timely good faith effort to make restitution or to rectify consequences of misconduct; (e) full and free disclosure to [the Commission] or cooperative attitude toward proceedings; (f) inexperience in the practice of law; (g) character or reputation; (h) physical disability; (i) mental disability or chemical dependency including alcoholism or drug abuse when: (1) there is medical evidence that the [lawyer] is affected by a chemical dependency or mental disability; (2) the chemical dependency or mental disability caused the misconduct; (3) the [lawyer’s recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and (4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely[;] (j) delay in disciplinary proceedings; (k) imposition of other ¹⁶⁵ penalties or sanctions; (l) remorse; [and] (m) remoteness of prior offenses. ABA Standards at III.C.9.32 (paragraph breaks omitted). This Court has disbarred lawyers who violated MLRPC 8.4(b) by committing crimes that adversely reflected on the lawyers’ fitness to continue to practice law, even if: (1) the lawyers did not violate MLRPC 8.4(c); and (2) this Court noted few (if any) aggravating factors.

In Attorney Grievance Comm’n v. Sheinbein, 372 Md. 224, 261, 249-50 , 812 A.2d 981, 1002, 995-96 (2002), without noting any aggravating factors, this Court disbarred a lawyer who committed the crime of obstructing and hindering a police officer by helping a murder suspect flee the country. Similarly, in Attorney Grievance Comm’n v. Painter, 356 Md. 293, 307, 305 , 739 A.2d 24, 32, 31 (1999), this Court disbarred a lawyer who committed the crimes of battery and illegally transporting a handgun. The lawyer had abused his spouse and child. See id. at 305 , 739 A.2d at 31 .

This Court stated: “[D]omestic violence is a serious problem in our society.” Id. at 302 , 739 A.2d at 29 (citation omitted). This Court noted one aggravating factor: a prior disciplinary offense, for which the lawyer received “a private reprimand^]” Id. at 301 , 739 A.2d at 29 . In another case in which a lawyer committed a crime, Attorney Grievance Comm’n v. Dechowitz, 358 Md. 184, 193, 186, 191 , 747 A.2d 657, 661, 658, 660 (2000), without noting any aggravating factors, this Court disbarred a lawyer who committed the crime of possession of marijuana with the intent to distribute, and thus “was a drug dealer.” In Dechowitz, id. at 192, 193, 747 A.2d at 661 , this Court accepted the lawyer’s concession that he had violated MLRPC 8.4(c), and stated that possession of drugs with the intent to distribute “generally results in disbarment.” Here, as to the duty violated and Greenleaf s mental state, Greenleaf intentionally solicited for sexual acts “Beth,” whom he believed to be a