Attorney Grievance Commission v. Joehl

KARWACKI, Judge. In a petition filed in this Court on April 19, 1993, the Attorney Grievance Commission charged Jeffrey Thomas Joehl, the respondent, a member of the Bars of this State and of the District of Columbia, with professional misconduct. The allegations arose primarily out of certain representations and omissions made by Joehl in connection with his application for admission to the Bar of this State. The petition alleged that Joehl had violated Rules 8.1, 8.4(b), 8.4(c), and 8.4(d) of the Maryland Rules of Professional Conduct. 1 ⁸⁵ On April 21, 1993, pursuant to Maryland Rule BV9(b), we ordered that the charges and pleadings be transmitted to Judge William M. Cave of the Circuit Court for Montgomery County for hearing.

That hearing was held on September 2, 1993, and Judge Cave’s findings of fact and conclusions of law were filed in this Court on January 26, 1994. We quote extensively from that document: “Respondent submitted an application for registration as a candidate for admission to the Bar of Maryland, dated February 12, 1991. Subsequently, respondent executed an oath, dated November 12, 1991, that all of the matters and facts contained in the original questionnaire were true and correct and no changes had taken place which would reflect unfavorably on his qualifications to be admitted as a member of the Maryland Bar. “Attached to respondent’s application was a list of traffic offenses entitled, ‘Traffic Proceedings,’ which appears to be a summary taken from this Motor Vehicle Administration traffic record with a number of the entries deleted, showing only the charge and disposition. “On September 5, 1991, the respondent was interviewed by Donna Jacobs, Esq., on behalf of the Character Committee of the State Board of Law Examiners. Ms. Jacobs was apparently concerned about the extensive nature of his driving record and asked the respondent about that record.

The respondent assured Ms. Jacobs that he had become a more responsible driver. He, however, did not inform her that he had three additional convictions for exceeding the ⁸⁶ speed limit in June[ 2 ] of 1990, and had been issued an additional citation on March 9, 1991. Nor did he reveal convictions of other traffic offenses outside of the State of Maryland. The respondent further failed to disclose any of the suspensions before the Motor Vehicle Administration. “On March 19, 1991, shortly after receiving the citation for exceeding the speed limit by 30 miles an hour, respondent went to Colorado, turned in his Maryland driver’s license and applied for and received a Colorado driver’s license.

He then returned to Maryland to complete his final semester of law school. The respondent has testified under oath that at the time he applied- for a Colorado license, it was his intention to take the Maryland Bar and then return to Colorado as a permanent resident thereof. “It is a little difficult to understand why it was necessary to apply for the Colorado license until such time as he actually moved to Colorado, unless it was for the purpose of obtaining a Colorado driver’s license before his Maryland license would be suspended. “Respondent was born in Colorado. Accordingly, despite possible inferences to the contrary, it is conceivable that he did have the intention to return to Colorado at the time he applied for that license. However, without question, there came a time that he did not return to Colorado, and knew or should have known that a Maryland driver’s license was required because he was remaining in the State of Maryland.

He nonetheless did not turn in his Colorado license nor did he attempt to get a Maryland license or have his privileges restored. “In 1987, respondent was charged with the crime of battery. That charge was subsequently nol prossed and respondent would have been entitled to have the matter expunged. At the time of the application to the Bar, however, the matter had not been expunged and respondent was required to list it on his application. ⁸⁷ “It seems apparent that instead of being totally candid on his application and character interview, the respondent treated that which could have been done as in fact having been done. “... Now, based on his attitude and demeanor before this Court, the Court is of the opinion that respondent has matured substantially and recognizes the requirement that he be completely candid. “Bar counsel has also cited the respondent for the guilty plea on January 7, 1992, for the charge of possession of marijuana.

Despite the guilty plea, respondent received a disposition pursuant to Article 27, Section 641 [probation before judgment]. The Court is satisfied from the testimony from the respondent that he did not knowingly possess the marijuana. That on the date in question, December 28, 1991, the clothes and marijuana belonged to his wife. “The Court is further satisfied that the guilty plea was pursuant to the plea bargain to obtain the disposition under Article 27, Section 641.” Based on these findings of fact, Judge Cave reached the following conclusions of law: “[Respondent has not violated Rule 8.4(b) because the [guilty plea to the charge of possession of marijuana] was not a criminal act that reflected adversely on a lawyer’s honesty, trustworthiness or fitness. Nor did he violate Section (c) or (d) of Rule 8.4 after he was admitted to the Bar.” With respect to Joehl’s driving record and battery charge, Judge Cave concluded that “it is doubtful that these would have prevented respondent from being admitted to the Bar.

Respondent’s sin of omission was greater than his sin of commission.” The judge held further: “As previously noted, the Court does find that respondent did fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter or knowingly failed to respond to a lawful demand for information from an admission or disciplinary authority as required ⁸⁸ by Rule 8.1(b). There was, at the very least, a technical violation.” Bar Counsel filed exceptions to portions of the findings of fact and conclusions of law and recommended that, as an appropriate sanction, Joehl be disbarred. Joehl filed no exceptions to Judge Cave’s findings and conclusions, but suggested that if a sanction is required, the appropriate sanction is a reprimand. I We observe as a preliminary matter that this Court has original and complete jurisdiction over attorney disciplinary proceedings.

Attorney Griev. Comm’n v. Powell, 328 Md. 276, 287 , 614 A.2d 102, 108 (1992) and cases cited therein; Md. Rule BV9(b). When factual findings are in dispute, we will give deference to a hearing judge’s findings “unless they are clearly erroneous, ‘giving due regard to the trial court’s opportunity to assess the credibility of the witnesses.’ ” Attorney Griev. Comm’n v. Goldsborough, 330 Md. 342, 356 , 624 A.2d 503, 509 (1993) (quoting Powell, 328 Md. at 287-88 , 614 A.2d at 108 ).

See also Attorney Griev. Comm’n v. Kemp, 303 Md. 664, 674 , 496 A.2d 672, 677 (1985). Nevertheless, as we stated in Powell , “the ultimate decision as to whether an attorney has or has not been guilty of misconduct is to be made by us.” 328 Md. at 287 , 614 A.2d at 108 (quoting Attorney Griev. Comm’n v. McBurney, 282 Md. 116, 122 , 383 A.2d 58, 61-62 (1978)).

Applying this standard, we will review the exceptions filed by Bar Counsel. II Bar Counsel contends, among other things, that the trial court erred in failing to address whether Joehl made misrepresentations to the inquiry panel when he testified before it in December, 1992. Although this charge was included in the original Petition for Disciplinary Action, Judge Cave did not address it in his findings of fact. Ordinarily, such a failure to address an issue might require a remand to the trial ⁸⁹ court, but in view of the uncontroverted testimony in the case sub judice, we are convinced that there is no genuine issue of fact to be decided.

Joehl testified before the inquiry panel that he was not aware his driver’s license was suspended at the time he received three speeding citations in July, 1990 and when he was arrested on December 28,1991, for possession of marijuana. 3 The relevant testimony before the panel consists of the following: “MR. BOTLUK: Was your license suspended when you received the three citations in July of 1990? “MR. THOMPSON: Same objection. He may answer if he knows, but. “MR.

JOEHL: I don’t know. “MR. NALLS: He says he doesn’t know. “MR. JOEHL: I would assume not, though, that it was not suspended. “MR. BOTLUK: And what do you base that assumption on? “MR.

JOEHL: Well, just looking at the record. First of all there’s no, I wasn’t charged with it and second of all, I avoid driving when my driver’s license is suspended.” According to Joehl’s driving record, however, a 180-day suspension was imposed following a hearing on March 23, 1990. Joehl’s license was surrendered to the MVA on that same day. Moreover, when asked at trial if he was in attendance at the March 23,1990 hearing, Joehl replied, “Yes.

If there was any hearing, yes, I would be there.” Joehl further stated, in reply to an inquiry as to whether he surrendered his license on that day, “Again I don’t recall specifically the specific hearing or— but if the record so reflects, then yes.” No reasonable individual could believe that a 24-year-old healthy college graduate with postgraduate legal education 4 did not know, ⁹⁰ four months after personally attending a hearing and surrendering his driver’s license to authorities, that his license had been suspended. In fact, the driving record reflects that Joehl’s license was not returned to him until September 18, 1990—two months after the July, 1990 citations were issued. In further support of his allegation of false testimony, Bar Counsel points to the following testimony also given before the inquiry panel: “MR. BOTLUK: Was in fact your license suspended at that time [of the December 28, 1991 accident and arrest]? “MR.

JOEHL: Apparently so. Not to my knowledge. I did not know it at the time, apparently it may have been a failure to appear, I had been moving a lot and I had not been notified, keeping the MVA notified of my moves.” In fact, Joehl acknowledged at the hearing before Judge Cave that not only had he received a notice from the Motor Vehicle Administration regarding his suspension, but that at the time of his December, 1991 arrest, he carried with him a check to pay the fine. He testified as follows: “Q. [MR.

BOTLUK]: And did you appear in court on January 22, 1992, in reference to those charges [arising from the December, 1991 arrest]? “A. [MR. JOEHL]: Again I’m not sure about the date, but I did appear in Court on reference to those charges in January of 1992. “MR. BOTLUK: In the course of the hearing did you or your counsel indicate that at the time you were arrested that you had a check in your pocket to pay the citation that caused your license to be suspended? “MR. JOEHL: Apparently so, yes.

I had no present recollection of that before I looked at the transcripts again. “MR. BOTLUK: Having looked at that, do you have any recollection about that check? “MR. JOEHL: Yes, I do. I had a check written to pay a fíne, I believe, in reference to a failure to appear suspension ⁹¹ which was going to be put into effect.

And I was going to pay it before it actually went into effect. “MR. BOTLUK: Well, what did you base the information on to the effect of when that would go into effect? “MR. JOEHL: On—I cannot recall specifically, but from past—from my previous experience with these things, you receive a notice from the MVA or from the District Court telling you that you have a failure to appear and you have 30 days before they impose a suspension on you or pay the fine. “MR. BOTLUK: And did you receive such a notice? “MR.

JOEHL: I believe so, yes.” This testimony simply cannot be reconciled with the testimony before the inquiry panel that is directly to the contrary. The evidence points overwhelmingly to the conclusion that Joehl knew of his suspensions at the time of both the July, 1990 citations and the December, 1991 arrest, notwithstanding his statements to the contrary at the hearing before the inquiry panel. The weight of the evidence is such that, had the trial judge addressed this issue and found otherwise, such a finding would have been clearly erroneous. It is clear, then, that Joehl, by testifying that he had no knowledge of his suspensions, knowingly made a false statement of material fact in connection with a disciplinary matter in violation of Rule 8.1(a).

In doing so, he also engaged in conduct involving dishonesty and misrepresentation in violation of Rule 8.4(c). Bar Counsel’s exception to the hearing judge’s findings to the contrary is sustained. Bar Counsel also excepts to Judge Cave’s findings and conclusions concerning the December 28, 1991 marijuana incident, arguing that the factual findings that “[rjespondent did not knowingly possess the marijuana” found in Joehl’s car on that date and that “the clothes and marijuana belonged to his wife” are unsupported by the record. Joehl testified that he did not know of the presence of the marijuana, and although the record contains a substantial amount of evidence that ⁹² tends to belie Joehl’s testimony, 5 the matter is, in the final analysis, one of credibility.

Judge Cave was “satisfied from the testimony from the respondent that he did not knowingly possess the marijuana ... [and] further satisfied that the guilty plea was pursuant to the plea bargain to obtain the disposition under Article 27, Section 641.” Despite the volume of evidence to the contrary, there is some evidence to support the contention that Joehl did not know of the presence of the marijuana. We did not have the opportunity personally to assess Joehl’s credibility, and we cannot say that the hearing judge’s findings and his assessment of Joehl’s credibility are clearly erroneous in this instance. This exception is overruled. Bar Counsel also asserts that error lies in the lack of a finding that Joehl obtained his Colorado driver’s license fraudulently and that such information should have been revealed in the bar application.

Judge Cave acknowledged that it was ⁹³ “difficult to understand” why Joehl would obtain a Colorado license while he still lived in Maryland. He also recognized, however, that with Joehl’s familial and personal ties to Colorado, it was conceivable that he did intend to return to Colorado at the time he obtained the license. Again, although we may interpret the evidence differently from Judge Cave, we cannot say that the absence of a finding of fraudulent intent was clearly erroneous. The exception to the finding concerning the Colorado driver’s license is overruled.

Next, Bar Counsel asserts that the trial judge erred in finding that