Attorney Grievance Commission v. Hermina

⁵⁰⁷ WILNER, Judge. Acting through Bar Counsel, the Attorney Grievance Commission filed a petition for disciplinary action against respondent, John Hermina, charging him with violating several of the Maryland Rules of Professional Conduct (MRPC). Pursuant to Maryland Rule 16-752(a), we referred the petition to Judge Maureen Lamasney, of the Circuit Court for Prince George’s County, to conduct a hearing and make findings of fact and proposed conclusions of law. After a three-day hearing, Judge Lamasney filed a Statement of Findings of Fact and Conclusions of Law in which she concluded that Hermina had violated MRPC Rules 1.1 (Competence); 1.3 (Diligence); 3.2 (Expediting Litigation); 3.3(a)(1) (Making False Statement of Material Fact to Tribunal); 3.4(c) (Knowingly Disobeying Obligation Under Rules of Tribunal); 3.4(d) (Frivolous Discovery Request, Failure to Comply with Proper Discovery Request); 3.5(a)(8) (Conduct Intended to Disrupt Tribunal); 8.2(a) (False Statement as to Qualification or Integrity of Judge); 8.4(a) (Violating Rules of Professional Conduct); 8.4(c) (Conduct Involving Dishonesty, Fraud, Deceit, or Misrepresentation); and 8.4(d) (Conduct Prejudicial to Administration of Justice).

Judge Lamasney found two extenuating circumstances to exist, one dealing specifically with the violation of MRPC Rule 3.2, and one, more general, dealing with Hermina’s character and contributions he had made to various causes. Both parties filed exceptions attacking various findings made by the judge. We shall find merit in most, but not all, of the exceptions filed by Hermina. BACKGROUND The charges against Hermina arose from a lawsuit that he filed on behalf of Kevin Reed against the Baltimore Life Insurance Company (BLIC), Reed’s former employer, and David Griffin, BLIC’s manager of client relations.

The suit, ⁵⁰⁸ which was one of seven that Hermina had filed against BLIC, was filed in May, 1997, in the Circuit Court for Montgomery County and was eventually tried before a jury in June, 1998, with Judge Martha Kavanaugh presiding. The nature of that action is described in the opinion of the Court of Special Appeals in Reed v. Baltimore Life, 127 Md.App. 536 , 733 A.2d 1106 (1999), affirming the trial court judgments. BLIC was represented by Barrett Freedlander, who was general counsel to BLIC, and by David Erb and Philip Barnes. Reed’s complaint included allegations of defamation, intentional infliction of emotional distress, and tortious interference with business relations.

BLIC filed a counterclaim alleging breach of contract, breach of fiduciary duty, and fraud on Reed’s part. All or most of this stemmed from Reed’s dismissal as a life insurance sales agent due to BLIC’s conclusion that he had engaged in a number of highly improper practices with respect to universal life policies that he had sold. At the end of the plaintiff’s case, Judge Kavanaugh entered judgment for Griffin on all claims against him and for BLIC on the claim of intentional infliction of emotional distress. The jury then found for BLIC on the defamation and tortious interference claims and on its counterclaim against Reed, finding on the counterclaim that Reed had committed fraud and that he had breached his fiduciary and contractual duties to BLIC.

A money judgment was entered against Reed on the counterclaim. The course of the litigation was extremely contentious and often uncivil. The lawyers traded accusations against one another regarding a variety of pre-trial, and often wholly extraneous, matters, which no doubt made Judge Kavanaugh’s job much more difficult than it needed to be. Some of those disputes required Judge Kavanaugh to determine which lawyer to believe, and, in most instances, she did not find Hermina’s statements to be credible.

Indeed, it appears that Bar Counsel’s petition was triggered by an Opinion and Order entered by Judge Kavanaugh at the conclusion of the litigation, in response to a motion filed by BLIC for sanctions against Hermina. Judge Kavanaugh forwarded a copy of her ⁵⁰⁹ opinion to Bar Counsel. Although she denied the request for sanctions, she found Hermina’s conduct to be “egregious.” She stated, among other things, that he never provided any discovery to the defense, despite his representations to the contrary, that he did receive discovery from BLIC despite his protestations to the contrary, that “he lied to the Court concerning these issues,” that he falsely accused the court of having an ex parte conference on jury instructions, and falsely accused the courtroom staff of removing documents from the court file. The proceeding before Judge Lamasney was also a contentious one, involving accusations, counter-accusations, and a great deal of disputed evidence.

Judge Kavanaugh, Mr. Freedlander, Mr. Erb, Mr. Barnes, and Mr. Hermina testified, along with other witnesses, and dozens of documents and trial transcript excerpts were admitted. Judge Lamasney also had to make credibility decisions; she resolved most of those credibility issues in favor of Bar Counsel’s witnesses and expressly found some of Hermina’s testimony not to be credible. She said, in that regard: “The Court finds that the testimony of Judge Kavanaugh, Mr. Freedlander, Mr. Barnes and Mr. Erb to be credible. Therefore, this Court rejects the respondent’s version of events and accepts the testimony of Judge Kavanaugh, Mr. Erb, Mr. Barnes and Mr. Freedlander.” 1 MRPC Rule 3.3(a)(1) provides that a lawyer shall not knowingly make a false statement of material fact or law to a tribunal.

Judge Lamasney found that Hermina misrepresented three basic things to the trial court: (1) that he had filed a set of interrogatories in May, 1997, which were never answered when, in fact, he never filed those interrogatories; (2) that he had not received requested documents from BLIC in response to discovery when, in fact, he had received those documents; and (3) that a pre-trial protective order entered ⁵¹⁰ by Judge Rupp had precluded him from conducting discovery when, in fact, the order was a limited one and did not preclude him from conducting discovery. She also found that those misrepresentations were deliberate and intentional, and not negligent. 2 MRPC Rule 3.4(c) provides that a lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on the assertion that no valid obligation exists. Rule 3.4(d) precludes a lawyer from making a frivolous discovery request and from failing to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party. Judge Lamasney found that Hermina did not provide discovery after receiving a timely request and that his reasons for that failure were without merit and constituted a violation of both the discovery Rules and a scheduling order entered by the court.- That, she concluded, constituted a violation of MRPC 3.4(c) and (d) as well.

She also found that Hermina had failed to participate in a pre-trial conference ordered by the court in its scheduling order, and that failure constituted a separate violation of MRPC 3.4(e). MRPC Rule 3.2 requires a lawyer to make reasonable efforts to expedite litigation consistent with the interests of the client. Early in the course of the litigation, Judge Weinstein, then the county administrative judge, issued a scheduling order and an order for mandatory pre-trial conference. Those orders, among other things, required the parties to cooperate in the preparation of a joint pre-trial statement, to be filed with the court by March 20, 1998, and to meet and confer at least a week before then in order to prepare that statement.

Judge Lamasney found that the purpose of that requirement was to expedite the litigation and that, by refusing to cooperate in the preparation of the joint statement and ⁵¹¹ to participate in the pre-trial conference, Hermina had violated MRPC 3.2. MRPC 3.5(a)(8) provides that a lawyer shall not engage in conduct intended to disrupt a tribunal. Judge Lamasney found that, by objecting to the introduction of documents on the basis that he had not received them, when, in fact, he had received them, by moving for a mistrial based on the assertion that BLIC had failed to answer interrogatories that Judge Lamasney found had not been sent, and by moving to disqualify Judge Kavanaugh for unsupportable reasons, Hermina had violated that Rule. She concluded that those actions “were intended to and did disrupt the orderly progress of the trial.” MRPC 8.2(a) provides that a lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.

On July 11, 1998, Hermina wrote a letter to Mr. Erb, in which he at least suggested that Erb, Barnes, and Judge Kavanaugh had an ex parte conference “during which the proposed jury instructions were discussed.” Judge Lamasney found that the accusation of an ex parte conversation concerned the integrity of Judge Kavanaugh and was made with reckless disregard of its truth. MRPC Rule 1.1 requires that a lawyer provide competent representation to a client, ie., the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Rule 1.3 requires that a lawyer act with reasonable diligence and promptness in representing a client. Hermina maintained that, on May 19, 1997, he sent a set of interrogatories in the Reed case to Mr. Freedlander, which Freedlander never answered.

Crediting Freedlander’s testimony that no such interrogatories were sent at that time and that the only interrogatories he ever received in Reed were sent in December, 1997 and were answered, Judge Lamasney found that Hermina’s failure to file those interrogatories “[a]ffected his ability to prepare for trial” and thereby violated those Rules. ⁵¹² The MRPC 8.4(a), (c), and (d) violations rested on the facts underlying the other violations. In relevant part, Rule 8.4 declares it to be unprofessional conduct for a lawyer (a) to violate any of the MRPC Rules, (c) to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation, and (d) to engage in conduct that is prejudicial to the administration of justice. Judge Lamasney found that “[biased on the factual findings made,” Hermina violated those Rules. Hermina’s exceptions comprise 39 pages and go into great detail concerning the evidence relating to some of Judge Lamasney’s findings.

We need not be so specific in order to consider the issues before us. The principal basis of his exceptions is that the evidence does not support those findings and therefore does not support Judge Lamasney’s conclusions with respect to the Rule violations. We agree in part. Although there clearly was unprofessional conduct on Hermina’s part, it did not constitute a violation of some of these Rules.

DISCUSSION The initial complaint in Reed was filed May 1, 1997. On September 12 of that year, following a scheduling conference, Judge Weinstein — the county administrative judge — entered a scheduling order that, among other things, required written discovery to be served by December 29, and for discovery to be completed by January 26,1998. A joint pre-trial statement was to be filed by March 20, 1998, in preparation for a pretrial conference on March 27. In an accompanying Order for Mandatory Settlement/Pre-Trial Conference, the court directed the parties and trial counsel to meet at least two weeks before that conference and endeavor to settle the case.

If the parties were unable to agree on a time and place for the meeting, the order directed that it be at 9:00 a.m. in the courthouse lobby on March 13, 1998 (two weeks before the scheduled conference). The accompanying order also set forth the kind of information the joint pre-trial statement was to contain, including a statement by each party of all claims and defenses the party was submitting for trial, the nature of the alleged injury and damages claimed, a list of the party’s ⁵¹³ witnesses and trial exhibits, and agreed and disputed voir dire questions and jury instructions. MRPC 3.3(a)(1) and 3.5(a)(8) The violations of these Rules found by Judge Lamasney rest on common facts. The MRPC 8.3(a)(1) violation was based on her finding that Hermina had, on a number of occasions, falsely stated to the court that BLIC had failed to respond to his discovery requests, and that those statements were “intentionally false.” The MRPC 3.5(a)(8) violation was based on Judge Lamasney’s finding that Hermina had intentionally disrupted the trial by objecting to documents on the ground that he had not received them, when, in fact, he had, by moving for a mistrial on the ground that BLIC had failed to respond to interrogatories that Judge Lamasney found had never been sent, and by moving to recuse Judge Kavanaugh in the middle of trial because she did not believe his version with respect to those matters.

On May 19, 1997, Hermina sent a certified letter to Freed-lander. There is frequent reference to that letter, but we are unable to locate it in the record. Hermina claimed that he enclosed with the letter two sets of interrogatories — one, a set of 26 interrogatories entitled Plaintiff Reed’s First Set of Interrogatories, in the Reed case, and one in the Kreh case, which was among the six other actions Hermina had filed against BLIC. Freedlander contended that the only interrogatories enclosed with that letter were those in the Kreh case and that he never received any First Set of Interrogatories in Reed .

Freedlander testified that the only interrogatories he ever received in Reed was a set of four interrogatories, captioned Plaintiff Reed’s Second Set of Interrogatories, that he received on December 29,1997 and answered. There was a clear dispute in the evidence regarding whether the May 19 letter enclosed a set of interrogatories in the Reed case. Hermina did not file a notice in the Reed case that the First Set of Interrogatories had been filed until May, 1998 — a year after he claimed they were filed and barely a ⁵¹⁴ month before trial. 3 This dispute first arose, of course, during the litigation, and Judge Kavanaugh had found that interrogatories in the Reed case were not sent with that May 19 letter. Judge Lamasney, after listening to testimony from Hermina, his brother (who was also his partner), and his secretary, as well as from Freedlander, Erb, and Barnes, and considering a number of documents bearing on the matter, found likewise.

That was essentially a credibility determination based on disputed evidence, and we shall not disturb it. Although we accept the finding that the First Set of Interrogatories were not, in fact, sent on May 19, we do not accept the finding that Hermina deliberately and intentionally misled Judge Kavanaugh in asserting that they were sent at that time (Rule 3.3(a)(1)) or that his motion for mistrial based on Freedlander’s failure to answer those interrogatories amounted to an attempt to disrupt the trial (Rule 3.5(a)(8)). There appears to be no dispute that interrogatories in the Kreh case were enclosed with that letter. Hermina believed that interrogatories in the Reed case were enclosed as well, and there is some independent evidence to support that belief, even though Judges Kavanaugh and Lamasney found, as a fact, that the interrogatories were not sent. 4 Judge Kavanaugh never found ⁵¹⁵ a deliberate misstatement.

She noted that there was no evidence that he had sent the first set of interrogatories in a timely manner, and commented that “[y]ou may have mismailed them. I am not sure what you did.” We sustain the finding that no interrogatories were enclosed with the May 19 letter and that what are labeled the First Set of Interrogatories were never, in fact, served on Freedlander, but we reject the finding that Hermina’s representation to the contrary was deliberate and intentional, rather than negligent. There is not, to us, clear and convincing evidence that Hermina did not honestly, even if erroneously, believe that he had sent those