Attorney Grievance Commission v. Howell

BELL, C.J. The Attorney Grievance Commission of Maryland (“the petitioner”), acting through Bar Counsel and pursuant to Maryland Rule 16-751(a), 1 filed a Petition for Disciplinary or Remedial Action against Sherrie T. Howell, (“the respondent”). The petitioner alleged that the respondent violated Rules 8.1, 2 Bar Admission and Disciplinary Matters, and 8.4, 3 ⁴ Misconduct, of the Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”), as adopted by Maryland Rule 16-812. Pursuant to Maryland Rule 16-752(a), we referred the Petition to the Honorable Videtta A. Brown of the Circuit Court for Baltimore City for the evidentiary hearing required by Maryland Rule 16-757. 4 Following that evidentiary hearing, Judge Brown issued Findings of Fact and Conclusions of Law pursuant to Maryland Rule 16-757(c) 5 : ⁵ Findings of Fact and Conclusions of Law “The respondent was originally admitted to the Bar of the Court of Appeals of Maryland on December 17, 1992 and maintains an office for the practice of law at 2122 Maryland Avenue, Baltimore, Maryland 21218. The Respondent represented Dayvon Gardner (hereinafter “Mr. Gardner”)[,] an inmate at Maryland Correctional Institution at Hagerstown (hereinafter “MCIH”), but did not represent him in the case that led to his incarceration at MCIH.

Mr. Gardner, a member of the Bloods (gang), is currently serving a sentence for murder. “On or about January 12, 2009, the Respondent forwarded mail to Mr. Gardner. The envelope, in which the Respondent sent the mail to Mr. Gardner, contained a return address that identified the Respondent as an “Attorney at Law.” ... A letter the Respondent wrote to Mr. Gardner, included in the envelope, was written on Respondent’s letterhead. Respondent’s letter and some enclosures related to her earlier representation of Mr. Gardner in connection with physical injuries he sustained while in custody in 2008. ...

Sgt. Daniel Colgan, correctional officer at MCIH, delivered what he believed to be legal mail to Mr. Gardner. Legal mail includes mail from attorneys. The envelope contained postage stamps and correspondence from Adrian Outten (hereinafter referred to as “AO”), an inmate incarcerated for a violent crime in another Maryland Institution. ...

The envelope also contained docket entries of other defendants from the Maryland Case Search database and a letter from “Tizzy,” an individual previously incarcerated in a Maryland Institution. The envelope the Respondent forwarded to Mr. Gardner contained illegal contraband (postage stamps and letter from AO) pursuant to MCIH prison policy. “Respondent admits that the letters were sent at the request of both Tizzy and AO. The Respondent also admits that she knew the letters were contraband. On February 17, 2009, the Respondent wrote to Kathleen McLaughlin, Bar Counsel, ⁶ of the Attorney Grievance Commission, ... and addressed the allegations.

She says, in part: ‘With regard to the letters, I believed that they were from cousins/relatives of Mr. Gardner that was incarcerated in other facilities. In that inmates are not allowed to write to one another directly (mail from one correctional facility to another), I was asked to forward them to Mr. Gardner.... It was poor judgment and a bad decision on my part to do so and I recognize that....’ “On April 30, 2009, Respondent was interviewed by Inspector William Ramsey of the Attorney Grievance Commission in regards to the contents of the mail sent to Mr. Gardner. The Respondent said that when she forwarded the mail to Mr. Gardner, in early January 2009, she was not representing Mr. Gardner as an attorney but was helping him with a literary enterprise. 6 Respondent admitted that she taped the letters to the back of the docket entries and regretted doing so.

In the interview she did not admit to taping the stamps to the back of the docket entries. (Respondent testified that she could have (emphasis added) taped the stamps to the back of the docket entries). Respondent testified that she did not know that the stamps were considered contraband. “Respondent testified that Mr. Gardner requested the docket entries and that she did not know these individuals or their cases. Additionally, Respondent testified that she only scanned the contents of the letter from AO and that she sent it because AO requested that she send it in a cover letter which was later destroyed. “Subsequent to January 2009, Mr. Gardner continued to correspond with the Respondent.

He forwarded mail to the Respondent on at least four different occasions. In his correspondence, Mr. Gardner sought information about other individuals, some of whom were incarcerated, as well as information concerning a correctional officer. The Respondent did ⁷ not receive these letters and therefore did not reply to the requests. “CONCLUSIONS OF LAW “This court makes the following conclusions of law based on the above stated facts. “Rule 8.4 (Misconduct) “The Petitioner alleges that the Respondent violated [MLRPC] 8.1 and 8.4(a), (b), (c) and (d) when she forwarded inmate correspondence to Mr. Gardner, who is an inmate at MCIH and taping the letters and the postage stamps to the back of legal documents, i.e. docket entries. Contraband is prohibited under MCIH prison policy and Maryland Code Annotated Criminal Laws § 9-410(c), (f) and 412. “LETTER AS CONTRABAND “Respondent was aware of the prohibition of inmate-to-inmate mail from another facility.

Although no criminal action yet arises out [of] this case, 7 the Respondent’s actions violate Md.Code Ann.Crim. Law § 9-412. 8 Violation of this Code constitutes a criminal act punishable for up to 3 years incarceration and $1, 000.00 fine. 9 Respondent knowingly sent contraband to an inmate. Respondent sent this contraband/letter knowing that (1) Mr. Gardner is a member of the Bloods gang and convicted for murder, (2) that Mr. Gardner requested docket entries on other persons of whom she had no knowledge, and (3) that AO was [ ] convicted of violent crimes and serving a life sentence. The Respondent also failed to read the contents of the letter/contraband.

Taken together, ⁸ the facts show that the Respondents actions were irresponsible and less than honorable. This Court finds that the Respondent’s actions show that she committed a criminal act that reflects adversely on her trustworthiness, honesty and fitness as an attorney thereby violating [MLRPC] 8.4(b). “[MLRPC] 8.4(c) deems it professional misconduct for a law[yer] to engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Respondent’s direct statement that she knew it was against prison policy to forward mail from inmate to inmate, coupled with the fact that the Respondent secreted the letter by taping it to the back of the docket entries show[] her attempt to circumvent the law. The Respondent’s conduct was deceitful in placing the prohibited inmate letter in an envelope that contained a return address identifying the Respondent as an ‘Attorney at Law.’ ...

Mail from an inmate’s attorney is designated legal mail and the Respondent knowingly used legal mail to hide contraband. For these reasons, this Court finds that the Respondent violated [MLRPC] 8.4(c). “[MLRPC] 8.4(d) prohibits conduct that is prejudicial to the administration of justice. Respondent’s conduct potentially jeopardized the safety of individuals inside and outside the prison when she decided to pursue a course of conduct infested with deceit and dishonesty. Respondent’s attempt to circumvent the prison policy (by assisting an inmate (Bloods gang member) to communicate with another inmate (convicted of a violent crime)) and to gather information concerning other defendants is both disrespectful and a disgrace to courts, as well as, the legal profession as a whole.

Respondent violated [MLRPC] 8.4(d). “The court also finds that as a result of the above discussion of the violations of [MLRPC] 8.4(b), (c) and (d), the Respondent violated [MLRPC] 8.4(a) in that she violated (or attempted) the Maryland Lawyers’ Rules of Professional Conduct. 10 ⁹ “POSTAGE STAMPS AS CONTRABAND “The Petitioner alleges that Respondent further violated [MLRPC] 8.4(c) by surreptitiously taping postage stamps, which are classified as ‘contraband’ under MCIH prison policy, to what appeared to be legal documents, i.e. docket entries. Upon review of the evidence and testimony from Sergeant Daniel Colgan, this Court is not convinced that Respondent was aware of the MCIH policy prohibiting postage stamps. No evidence was presented to indicate that such prison policy was made public knowledge (posted or distributed to anyone other than employees), therefore, Respondent cannot be charged with being aware of it at the time she sent the postage stamps. Furthermore, Respondent stated that she had previously sent postage stamps to other inmates/clients in various correctional facilities without a problem....

For these reasons, this Court finds that the Respondent’s conduct of sending postage stamps to an MCIH inmate, as well as allegedly taping the postage stamps to the back of legal documents, does not violate [MLRPC] 8.4. “Rule 8.1 (Bar Admission and Disciplinary Matters) “Upon review of the evidence and assessment of the testimony, this Court is not convinced that the Respondent violated [MLRPC] 8.1. This Court finds that Respondent’s responses to the Commission[ ]’s investigator were candid with respect to forwarding the inmate mail to Mr. Gardner. Rule 8.1 prohibits an attorney from making a false statement of material fact in connection with a disciplinary matter; and/or knowingly failing to respond to a lawful demand for information from an admissions or disciplinary authority. Here, Respondent admitted to Commission[ ]’s investigator and Bar Counsel that she knew what she did was wrong. ...

There is no evidence to neither suggest she was non-compliant with the investigation nor mislead the investigator; therefore, this ¹⁰ Court finds Respondent’s conduct did not amount to a Rule 8.1 violation.” The petitioner has taken no exceptions to the hearing court’s findings of fact or conclusions of law. It recommends, as the appropriate sanction for the MLRPC 8.4 violations that the court found, that the respondent be disbarred from the practice of law. 11 In support of that recommendation, emphasizing the irresponsibility of the conduct that the hearing court found that the respondent committed, so characterized by the court, in addition to “deceitful,” a disgrace” and “less than honorable,” and its “potential danger to inmates, staff and even those outside prison,” the petitioner asserts that disbarment is consistent with the purpose of attorney discipline to protect the public — it is “commensurate with the nature and gravity of [the respondent’s] violations and the intent with which they [were] committed,” Attorney Grievance Comm’n v. Nwadike, 416 Md. 180, 201 , 6 A.3d 287, 299 (2010), citing Attorney Grievance Comm’n v. Post, 379 Md. 60, 70-71 , 839 A.2d 718, 724 (2003) — and it “set[s] the standard of integrity for members of the legal profession and [demonstrates] the kind of conduct the Court will not tolerate.” Attorney Grievance Comm’n v. Kahn, 290 Md. 654, 683 , 431 A.2d 1336, 1351-52 (1981). As reflective of these principles, the petitioner directs our attention to Attorney Grievance Comm’n v. Sheinbein, 372 Md. 224 , 812 A.2d 981 (2002), and In re Garvey, 325 Or. 34 , 932 P.2d 549 (1997), a case we cited with approval in Sheinbein . Although the petitioner acknowledges that the conduct engaged in by the respondent in this case was not as “consequential” as the conduct of the attorneys in Sheinbein and Garvey , it asserts that her actions, which the hearing court found were committed with “an intent to flout the law aimed at the security of prisons,” “were so dangerous that the ¹¹ potential harm to the public, including physical harm, was manifest.” To be sure, the petitioner conceded that “cases involving attorney violations of prison rules have not always resulted in disbarment” and, indeed, cited some of those cases in its initial recommendation paper, see In the Matter of Albin, 267 Kan. 451 , 982 P.2d 385 (1999), and in supplements subsequently filed to that paper.

See In the Matter of Wagoner, 787 N.E.2d 377 (Ind.2003); In the Matter of Disciplinary Proceedings Against Woodard, 183 Wis.2d 575 , 515 N.W.2d 700 (1994); In re Fulkerson, 912 N.E.2d 822 (Ind.2009); Attorney Grievance Comm’n v. Haupt, 285 Md. 39 , 399 A.2d 1350 (1979). Nevertheless, the petitioner maintains its position that disbarment is the appropriate sanction. The respondent filed both exceptions and a recommendation as to disposition. She excepted to both the findings of fact and conclusions of law.

With regard to the former, the respondent denies that she admitted knowing that letters from inmates in different facilities sent from her office to her client at MCIH would be considered contraband. She maintains that recognizing that “inmates are not allowed to write to one another directly” does not amount to a “recognition, personal knowledge or understanding that her transmittal of that material would be considered contraband.” For these same reasons, the petitioner excepts to the conclusion of law that she “knowingly sent contraband” to an MCIH inmate in violation of Maryland Code (1957, 2012 RepLVol.) § 9-412 of the Criminal Law Article, thus violating MLRPC 8.4(b). The respondent also excepts to the finding that she admitted taping the letters to the docket entries, submitting that “[i]t is in direct contradiction to both her statements in her interview with Bar Counsel’s investigator and with her testimony at the June 29, 2010 hearing.” The respondent’s exception to the conclusion of law that she “secreted the letter by taping it to the back of docket entries” in order to “circumvent the law and prison policy” is based on the fact that, other than the testimony of Sergeant Colgan, the ¹² petitioner “failed to present any clear and convincing evidence to show the intent, motivation or desire by Respondent to circumvent MCIH policies and procedures.” That she testified that she represented Mr. Gardner in a “potential personal injury claim against MCIH and with respect to his literary works” is the basis for the respondent’s exception to the conclusion of law that she used “legal mail to hide contraband in violation of MLRPC 8.4(e).” With regard to the conclusion of law that she pursued a “course of conduct infested with deceit and dishonesty” potentially jeopardizing the safety of individuals in- and out-side the prison in violation of MLRPC 8.4(d), the respondent argues: “In fact, the evidence in the case shows that the opposite was true since the letters were benign as recognized by Bar Counsel and Respondent in the Joint Stipulation of Fact. Specifically, Stipulation # 7 states that “no criminal activity was indicated in the letters sent to MCIH by Respondent” and Stipulation # 8 states that “no criminal activity resulted from the materials sent by Respondent.” The respondent also submitted a recommendation as to disposition: either a reprimand or a short period of suspension.

Her conduct does not warrant disbarment, she says, because it is not the kind of conduct that has been at issue when this Court has ordered disbarment: “She did not; “(1) Misappropriate client funds or mishandle a client escrow account; “(2) Misrepresent facts to a client, colleague or Court regarding a matter; “(3) Forge another’s signature; “(4) Commit a serious crime; “(5) Intentionally give a false statement to a client, colleague or Court regarding a matter; “(6) Commit an act of violence; “(7) Attempt to practice law in a jurisdiction in which she was not admitted to practice; or ¹³ “(8) Personally benefit from her actions.” Moreover, her situation is further distinguished from disbarment cases, she submits, in that she made at most a misrepresentation, rather than engage in fraud or deceit, and she “has never been disciplined in this or any other jurisdiction.” Maryland Rule 16-759(b) provides: “(1) Conclusions of Law. The Court of Appeals shall review de novo the circuit court judge’s conclusions of law. “(2)Findings of Fact. “(A) If No Exceptions Are Filed. If no exceptions are filed, the Court may treat the findings of fact as established for the purpose of determining appropriate sanctions, if any. “(B) If Exceptions are filed. If exceptions are filed, the Court of Appeals shall determine whether the findings of fact have been proven by the requisite standard of proof set out in Rule 16 — 757(b).

The Court may confine its review to the findings of fact challenged by the exceptions. The Court shall give due regard to the opportunity of the hearing judge to assess the credibility of witnesses.” Explicating this Rule, we said in Attorney Grievance Comm’n v. Goff, 399 Md. 1, 27-28 , 922 A.2d 554, 569-70 , reinstatement granted, 400 Md. 97 , 928 A.2d 795 (2007): “Thus, we review de novo the hearing court’s conclusions of law. Rule 16 — 759(b)(1); Attorney Grievance Comm’n v. Mahone, 398 Md. 257, 265-66 , 920 A.2d 458, 463 , 2007 WL 1051696 , ⁴ (2007); Attorney Grievance Comm’n v. Mba-Jonas, 397 Md. 690, 700 , 919 A.2d 669, 675 , 2007 WL 816836 , ⁴ (2007); Attorney Grievance Comm’n v. Hodgson, 396 Md. 1, 6-7 , 912 A.2d 640, 644 (2006); Attorney Grievance Comm’n v. McLaughlin, 372 Md. 467, 493 , 813 A.2d 1145,