Attorney Grievance Commission v. Kalil

JOHN C. ELDRIDGE, Judge (Retired, Specially Assigned). The Attorney Grievance Commission, by Bar Counsel, filed a petition for disciplinary action against the respondent, Thomas F. Kalil, on July 21, 2006. In the petition, the Attorney Grievance Commission alleged violations of Rules 3.3 1 and 8.4 2 of the Maryland Lawyers’ Rules of Professional Conduct. The matter was referred to Judge Durke G. Thompson of the Circuit Court for Montgomery County for a hearing and factual findings pursuant to Maryland Rules 16- ³⁶¹ 752(a) and 16-757(c). 3 The facts, as found by Judge Thompson, are summarized as follows.

On December 20,1983, Thomas Kalil was admitted to the Maryland Bar. He is not a member of the Bar of any other state or the District of Columbia. Kalil does not practice law and has never maintained an office for the practice of law. For the time period relevant to this matter, he worked for the United States Department of Agriculture as an Assistant to the Deputy Administrator of the Farm Loan Programs.

The Department of Agriculture suspended Kalil for 14 days without pay, and Kalil believed that the suspension was retaliation for what he claimed was “whistleblowing.” Kalil appealed his suspension to the Merit Systems Protection Board (MSPB) under the Whistleblower Protection Act, 5 U.S.C. § 2301 (b)(9). Administrative Judge Thomas P. Cook presided over a hearing on December 10, 2004, to determine whether the Department of Agriculture had, in fact, retaliated against Kalil in violation of the Whistleblower Protection Act and whether the 14-day suspension was meritorious. Judge Cook issued an Initial Decision finding partially in favor of Kalil and partially against him. The decision upheld Kalil’s suspension and loss of pay.

Kalil appealed the Initial Decision to the full Board, which affirmed Judge Cook’s decision. Subsequently, Kalil filed an action for judicial re ³⁶² view in the United States Court of Appeals for the Federal Circuit which affirmed the MSPB decision. Kalil believed that Judge Cook and some of the witnesses at his MSPB hearing committed acts that breached the applicable rules governing attorney conduct and that he had an ethical obligation to report such acts. While his judicial review action was pending, Kalil called the MSPB Washington Regional Office on at least three occasions.

On June 21, 2005, a paralegal specialist for the office, Sheila Stanton, answered a call from a person who identified himself as “John Ford” and who asked to speak with “Tom Cook, an MSPB Judge.” The caller, who was in fact Kalil, indicated that the phone call concerned a personal matter. Stanton put the call on hold and contacted Judge Cook who asked her to transfer the call to his voicemail, which she did. Judge Cook testified that he is reluctant to answer the phone because a large number of cases before him involve pro se litigants who seek to argue then-cases ex parte. In addition, Judge Cook does not speak to a litigant after his or her case has been decided.

Soon after, Stanton answered another call, but the caller did not identify himself. Stanton, however, recognized the caller to be the same person who earlier had identified himself as “John Ford.” This time, the caller asked Stanton whether Judge Cook was a member of the Bar of the District of Columbia. Judge Cook is a member of the California Bar and is not admitted to the District of Columbia Bar. Stanton informed the caller that she was not sure and that he would have to ask Judge Cook.

She then forwarded the call to Judge Cook’s voicemail. The transcript of the voicemail reads as follows: “Yes, Judge Cook, this is Thomas Cahill. If you could contact me at [telephone number] I would appreciate it. I have a technical question I have to obtain information from you.

This is not related to the case, but I’m calling on behalf of D.C. Bar Counsel. Thank you.” When Judge Cook listened to his voicemail, he believed the voice to be that of Thomas Kalil and not a “Kayhill or Cahill.” Judge Cook wrote a memorandum to memorialize the call. ³⁶³ Shortly thereafter, Stanton answered a third call from Kalil who this time identified himself as “Thomas Cahill.” “Thomas Cahill” inquired whether P.J. Winzer, who is the Regional Director of the Washington Regional Offices and who also serves as the Chief Administrative Judge of the MSPB, was a member of the Bar of the District of Columbia. Placing the call on hold, Stanton contacted Judge Winzer, informed her about the inquiry, and also related that the same person had called earlier asking similar questions about Judge Cook. Judge Winzer accepted the call and informed the caller that she did so because of the nature of the bar status inquiry.

When the caller stated that he was sure Judge Winzer was a member of the Bar of the District of Columbia, Judge Winzer answered that she was not. After further questioning, Judge Winzer stated that she was a member of the California Bar. After some casual conversation, the caller indicated that he wanted information in relation to an ongoing investigation. Judge Winzer did not recognize the caller, Kalil, as a litigant before the MSPB.

Once she learned the identity of the caller, she prepared a memorandum about the call. Soon after the third telephone call, Judge Cook asked Stanton to call the number left on his voicemail. Judge Cook informed Stanton that he believed the caller was one of the former litigants who appeared before him, named Thomas Kalil. When Stanton called the number, the person answering the call identified himself as “Mr. Kalil” and indicated that she had reached either the “Farm Bureau” or “Farm Programs.” Again, Kalil inquired of Stanton whether Judge Cook was a member of the Bar of the District of Columbia, and Stanton responded that she could not reveal that type of information.

Kalil told Stanton that he was gathering information for a response to the D.C. Bar about violations of ethics, and, if Judge Cook did not return his call, he would consider it a refusal to respond. Stanton recognized Kalil as the same person who called three times previously and prepared a memorandum to memorialize the four conversations with him. The memoranda of the phone calls from and conversations with Kalil were sent to the MSPB general counsel. The ³⁶⁴ incident was subsequently reported to the District of Columbia Bar Counsel and, because Kalil is not a member of the District of Columbia Bar, it was forwarded to the offices of the Maryland Attorney Grievance Commission in July 2005.

The Office of the District of Columbia Bar Counsel never employed Kalil and never authorized him to act for the Office in any capacity. Kalil had previously filed two or three complaints with the Office of the District of Columbia Bar Counsel, and it is the practice of the Office to ask complainants to provide further information. The Office does not, however, authorize or permit others to investigate complaints. The records of the District of Columbia Bar Counsel’s Office do contain two letters, dated August 25, 2005, and October 4, 2005, to Kalil concerning complaints which he had previously filed.

These letters asked Kalil to provide information, but they did not authorize him to act for the Office. The records of the District of Columbia Bar Counsel’s Office also contained a memorandum written on September 29, 2005, by Joe Perry, a law clerk for the Office. The memorandum concerned a conversation with Kalil in which Kalil asked Perry to speculate about the meaning of the phrase “on behalf of.” The memorandum also noted that Kalil complained about Bar Counsel’s referral of the MSPB complaint to the Maryland Attorney Grievance Commission. Kalil told Perry that he wanted the District of Columbia Bar Counsel to write a retraction or acknowledge that the referral was a mistake.

Kalil also stated that he would sue the Office if the referral was not retracted. Kalil previously had made a similar attempt to have the MSPB complaint withdrawn. On August 10, 2005, a staff attorney memorandum stated that Kalil had demanded that someone order Wallace E. Shipp (District of Columbia Bar Counsel) to withdraw the referral of the complaint or to have Mr. Shipp disciplined for the referral. Approximately three months after the calls to Judges Cook and Winzer, on October 14, 2005, Kalil delivered to the Office of the District of Columbia Bar Counsel the transcript of the hearing of his case before the MSPB.

He included with the ³⁶⁵ transcript a document entitled “Confirmation of Delivery and Receipt.” Ms. Mayfield, the office receptionist, signed and date stamped the receipt. At some point, Kalil wrote on the receipt: “As part of Dr. Thomas F. Kalil, Esq.’s continuing efforts on behalf of the District of Columbia Bar Counsel’s investigation regarding disciplinary action in” three docketed complaints that he filed with Bar Counsel. Neither Judge Winzer nor Judge Cook was the subject of those complaints. Judge Thompson found that Kalil’s testimony on the nature and content of the receipt contradicted his testimony in his pretrial deposition.

Testifying at his disciplinary hearing, Kalil claimed that he cleared the language on the receipt with “someone” at the District of Columbia Bar Counsel’s Office. During his deposition, Kalil stated that he had read the receipt to Judith Hetherton (Senior Assistant Bar Counsel) and drafted the document with the specific concurrence of Hetherton. He later recanted that testimony and said that he did not know to whom he spoke and read the receipt. Judge Thompson found that Kalil did not violate Rule 3.3 but did violate Rule 8.4.

Judge Thompson stated as follows: ³⁶⁶ Court’s belief that this personality trait is what led to Respondent’s troubles with his employer, the MSPB, and the Office of Bar Counsel for the District of Columbia. ³⁶⁵ “The actions of the Respondent in this matter are largely undisputed. To understand exactly what happened and why it occurred requires some insight into the character and personality of the Respondent. During the hearing on this matter, with the Court’s ability to observe the Respondent testify, it became clear that the Respondent is an intelligent career civil servant who has an inflated view of his role at the U.S. Department of Agriculture and his public responsibilities. He is also hampered by his selective interpretations of facts and their application to his situation together with an inability, on occasion, to acknowledge that he is wrong about matters with which he is dealing.

An apt description of the Respondent is as an unappreciated gad fly. At times during his testimony, Respondent was argumentative or non-responsive to the questions asked, not because he was evasive, but because he elected to split hairs during his answer or to try to restate the question to fit what Respondent believed was appropriate. It is the ³⁶⁶ “The information sought by the Respondent when he made his calls to the MSPB Regional Office was a matter of public record. Apparently, Respondent was aware that his ‘plan’ to complain to bar authorities about the administrative law judge in his case was a risky professional undertaking.

Thus, the Respondent sought to conceal his identity when making his telephone query. Perplexing is his effort to engage Chief Administrative Judge Winzer in conversation but it is apparently consistent with his belief that his multiple calls were not appreciated. However, there is little question that Respondent was not forthright with his representations to the receptionist. “The real issue is whether Respondent’s misrepresentations by phone were material, as they must have been in order to constitute a violation of MRPC 3.3, which requires a ‘false statement of material fact or law to a tribunal.’ It is the belief of the Court that they were not. Bar membership is a matter within the public domain and [is] publicly accountable in a regulated profession.

The use of pseudonyms by the Respondent did nothing to mislead the call recipients to their detriment. Nor did the calls themselves involve anything that was before the MSPB forum. Instead the calls were an apparent prelude to the efforts by the Respondent to manipulate the grievance process in the District of Columbia. “The actions of the Respondent do not seem to fit as a violation of MRPC 3.3. The actions of the Respondent involved a judicial forum or tribunal, but his telephone calls were not the part of any proceeding before the tribunal.

The use of pseudonyms during his phone calls does not violate the rule. Far more troubling is the