Attorney Grievance Commission v. Mahone

BELL, C.J. (Retired). 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 Daniel Quinn Mahone, (“the respondent”). The petitioner alleged, in that Petition, that the respondent violated Rules 8.4(b) 2 and (d), 3 Misconduct, of the ⁸⁹ 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 Joseph M. Quirk of the Circuit Court for Montgomery County for the evidentiary hearing required by Maryland Rule 16-757. 4 Following that evidentiary hearing, Judge Quirk issued Findings of Fact and Conclusions of Law pursuant to Maryland Rule 16-757(c) 5 : “FINDINGS OF FACT AND CONCLUSIONS OF LAW[ 6 ] ⁹⁰ II. FINDINGS OF FACT “1. Daniel Quinn Mahone (hereinafter “Mahone”) was admitted to the practice of law in the State of Maryland on June 25,1986. He currently maintains an office located at 9A West Patrick Street, Frederick, Maryland 21701.

Mahone has been a solo practitioner since 2010. He is now fifty (50) years old. He had never been arrested prior to February 1, 2010. “2. On February 1, 2010, the Honorable Michael R. Pearson was presiding in the case of Mayo v. Taylor (Case No. CADV 10-01823) in the Circuit Court for Prince George’s County.

The matter involved a Final Protective Order proceeding with allegations of serious injuries to a two (2) year-old child brought by his paternal grandmother against her own son, the child’s biological father. “3. On February 1, 2010, Bailiff Harris, Bailiff Washington, Deputy Sheriff Milam, and Deputy Harville were assigned to Judge Pearson’s courtroom to provide security. “4. Respondent entered the courtroom during Final Argument. He did not “barge” into the courtroom.

Respondent represented the child’s mother, who had moved to Maine following the removal of the infant from her care by the Washington County Department of Social Services. Respondent’s client was neither present nor a party to the proceedings. Neither she nor Respondent had received prior notice of the proceedings. Respondent was made aware of the proceeding by telephone message received the morning of February 1, 2010 from the biological father.

Respondent ⁹¹ traveled to the Prince George’s County Circuit Court to represent his client’s interests. “5. Respondent was dressed in a suit and was not inappropriate in his physical demeanor upon arrival. He was not “disheveled and winded.” “6. Judge Pearson interrupted Final Argument to allow Respondent to inform the Court as to the reason for his presence and to explain his client’s position.

Judge Pearson informed Respondent as to the nature of the proceedings being a Final Protective Order hearing and informed Respondent that if he chose to file motions regarding the Child’s custody, that such would be considered at a later date. Judge Pearson then directed Respondent to be seated. “7. In the colloquy with Judge Pearson, Respondent was neither rude nor disrespectful. At no time were Respondent’s words toward Judge Pearson other than professional. “8.

Following the colloquy between Respondent and Judge Pearson, Respondent did not remain quiet and seated. Judge Pearson’s comment regarding lowering of voice was directed to Respondent. Respondent made verbal attempts to communicate with Taylor during Final Argument. In response, Taylor turned around from counsel’s] table to receive communications from Respondent.

Respondent was asked on several occasions by Bailiff Harris, Deputy Harville and Deputy Mi-lam to remain quiet, to lower his voice, and to remain seated. Respondent failed to fully comply with these instructions. “9. Judge Pearson was hearing a sensitive, serious case with pro se parties. His focus was to make and explain his Ruling and to keep matters calm between the parties before him.

Respondent’s behavior was “animated” before his colloquy with the Court, which behavior became “agitated” thereafter. Mahone did not further attempt to address the Court. “10. Respondent, from his seat in the Gallery directly behind the biological father, passed one written note to him in the Well. Respondent ceased doing so when instructed by the bailiff. ⁹² “11.

The only record of courtroom proceedings is that of the court reporter, as no audio or visual recording was made. “12. Judge Pearson did not specifically direct or address Respondent’s courtroom removal nor any other aspect of Respondent’s courtroom behavior. Judge Pearson did not admonish, correct, or bring to Respondent’s attention any displeasure he may have had with Mahone’s behavior until his February 26, 2010 letter to Bar Counsel. “13. Respondent did not commit any criminal behavior in the courtroom. “14.

Respondent was removed from the courtroom by Deputy Harville after Final Argument has concluded, but before the Ruling was announced. Respondent made several loud statements as he was being escorted from the courtroom regarding his right to remain in the courtroom and regarding his status as an officer of the Court. Deputy Harville did not testify at hearing. “15. Once outside the courtroom, Respondent became increasingly loud and upset.

He failed to obey the instruction of Deputy Milam to remain calm. He attempted to re-enter the courtroom in disobedience to Milam’s instruction to remain outside the courtroom until the proceeding was concluded. Respondent’s voice tone became increasingly loud. He asserted his claimed right to be inside the courtroom and demanded re-entry.

He threatened to sue. The Respondent made slight, unintentional physical contact with Deputy Milam in his effort to regain entry into the courtroom. Respondent’s purpose in seeking re-entry was not to thank Judge Pearson, but rather to speak with Taylor. Respondent’s testimony in that regard is neither credible nor logical. “16.

Approximately ten (10) people, including at least one (1) child, gathered in the hallway outside the courtroom to observe Respondent’s interactions with Deputy Milam at the door and subsequently at the arrest location further down the hallway. ⁹³ “17. Respondent, immediately before walking away from the Courtroom door to go to the office of the Administrative Judge, directed profane language at Milam, calling him an “ass” at which point Respondent was informed that he was under arrest. This was the only use of profanity by Respondent during these events. “18. Respondent briskly walked away from Milam and did not heed either repeated advice that he was under arrest or requests to stop.

Respondent did not stop. Deputy Milam followed Respondent for approximately thirty (30) to forty (40) yards in the courthouse hallway and forcibly effectuated the arrest. Respondent pulled away from Deputy Milam and was forced to the ground. Respondent struggled.

Deputy Milam warned Respondent that if Respondent did not stop his resistance that pepper spray would be used, at which point Respondent stopped any resistance and was placed in handcuffs. “19. Respondent was arrested and charged with Disorderly Conduct and with Resisting Arrest. “20. Following arrest, Respondent initially refused to provide identifying information and was detained in the courthouse lock-up for approximately twenty (20) minutes until he provided his driver’s license. “21. Respondent’s contentions concerning use of unnecessary physical force during his arrest and subsequent processing by courtroom personnel or law enforcement agents are exaggerated.

He suffered no credible physical injury. “22. Respondent called Deputy Harville a “Nazi.” Harville was the sole Caucasian involved in relevant events and all remaining court personnel appear to be African-American. Respondent is African-American. “23. The Court finds Milam’s hearing testimony to be somewhat embellished concerning Respondent’s behavior, and further finds his Statement of Probable Cause to be the more accurate recitation of events.

The Court finds Wimbush’s testimony to be greatly embellished and that of Harris to be confused as to chronology. ⁹⁴ “24. Criminal charges proceeded to the jury trial in State v. Mahone, CJ10-1582 before The Honorable James Lombardi, Associate Judge of the Prince George’s Circuit Court on September 28, 2010. At the close of the State’s case, Disorderly Conduct and Resisting Arrest charges were dismissed on Motion for Judgment of Acquittal. “25. Neither Mahone’s client nor either party engaged in proceedings before Judge Pearson on February 1, 2010 were prejudiced by Respondent’s words or behavior, either in the courtroom or thereafter. “26.

No actions by Judge Pearson or any courtroom personnel were motivated by, or the result of, racial considerations.” From these Findings of Fact, Judge Quirk concluded that the respondent violated MLRPC 8.4(d), but not MLRPC 8.4(b). With regard to the latter, he concluded, “[bjased upon factual determinations made herein by application of the clear and convincing evidence standard, Bar Counsel has failed to adduce proof sufficient to meet its burden of establishing a Rule 8.4(b) violation.” The facts bearing on this issue were those found in paragraphs 16, in which Judge Quirk determined that the respondent’s “interactions” with the arresting officer was observed by “[approximately ten (10) people including at least one child,” who “gathered” for that purpose, and 18, in which Judge Quirk concluded that the respondent “did not heed either repeated advice that he was under arrest or requests to stop,” and when the arresting officer forcibly effectuated the arrest, “pulled away” and “struggled,” of the Findings of Fact. In drawing that conclusion, Judge Quirk noted the finding of the criminal court trial judge that the State had failed to prove its disturbance of the peace charge, brought pursuant to Maryland Code (2002, 2012 RepLVol.) § 10 — 201(c)(2)—(3) of the Criminal Law Article (“CL”), and that failure required dismissal of the resisting arrest charge, brought pursuant to CL § 9-408(b)(l) (2004, 2012 Repl.Vol.). Although recognizing that the criminal disposition is not dis-positive, given the different burdens of proof, Judge Quirk ⁹⁵ nevertheless found the criminal court decision to be “not without consideration or relevance.” Turning to the MLRPC 8.4(d) violation, Judge Quirk’s conclusion that the respondent violated that Rule was premised on the behavior in which he found the respondent to have engaged, both within and outside the courtroom, which he described as “willful and [engaged] in the actual presence of members of the public, both inside and outside the courtroom.” The offending behavior inside the courtroom consisted of the respondent disrupting the proceedings by, in addition to making multiple attempts to speak to his client during final argument, refusing to keep still or lower his voice and remaining standing after being advised to be seated.

This behavior, moreover, Judge Quirk determined, was the basis for the respondent’s removal from the courtroom, which he found to be proper, even though it was done without the specific direction of Judge Pearson. Judge Quirk described the behavior in which the respondent engaged once outside the courtroom and which he concluded was prejudicial to the administration of justice as becoming “increasingly angry and upset;” refusing to heed instructions to remain calm; attempting to re-enter the courtroom; engaging in a “door handle tugging match” with the arresting officer, despite being admonished not to do so; and using “loud, inappropriate and profane language in the hallway.” Indeed, it was, as a result of this use of profane language and directing it at the arresting officer, calling him an “ass,” that the respondent was arrested. Following his arrest, Judge Quirk found that the respondent “refused to heed” the advice that he was under arrest or the command to stop and surrender, instead walking away from the officer. When physically accosted, he struggled and did not cease resistance until threatened with the use of pepper spray.

In addition, the respondent’s failure to cooperate, refusing, for a time, to provide identification, calling one of the officers a “Nazi” and his “attempt[s] to use his position as an attorney to his benefit, repeatedly stating, Tm an officer of the court’ and ⁹⁶ threatening to sue while refusing to comply with the explicit directives of the Bailiff and Deputies,” were offered as additional factors in the judge’s conclusion that the respondent acted in a manner prejudicial to the administration of justice. Judge Quirk also made findings with regard to factors in mitigation and aggravation, including those findings as “III. Evidence Regarding Remedial and Mitigating Factors.” Having acknowledged the aggravating factor that the respondent “has previously been reprimanded by the Court of Appeals for courtroom conduct, Atty. Griev.

Comm’n. v. Mahone, 398 Md. 257 [, 920 A.2d 458 ] (2007), having violated Rule 8.4(d),” he noted that the respondent self-reported his arrest to the petitioner. Judge Quirk also found: “Respondent’s actions were not caused by any dishonest or selfish motive. He acted, in his estimation, as a zealous advocate for his client in hastening to Upper Marlboro to an unknown proceeding at the invitation of his client’s opponent, to hopefully obtain custody of a two year-old child for his client, who had previously lost custody. His verbal interaction with the Judge was courteous.

Upon hearing of Judge Pearson’s letter to the Attorney Grievance Commission, Respondent promptly apologized. Judge Pearson accepted. “The matter of State v. Daniel Q. Mahone, CJ 10-1582 in the Circuit Court for Prince George’s County went to trial on September 28, 2010 before The Honorable James Lombardi with a jury. All charges were dismissed at the conclusion of the State’s case upon Respondent’s Maryland Rule 4-324 Motion[.]” The petitioner took no exceptions to the Findings of Fact; however, it excepts to Judge Quirk’s failure to conclude that the respondent violated MLRPC 8.4(b). The petitioner’s complaint is that Judge Quirk’s findings of fact lead inexorably to the conclusion that the respondent violated CL § 10-201(c)(2) and (3) 7 and CL § 9-408(b), 8 which are the underlying bases ⁹⁷ for the Rule 8.1(b) violation charge.

It reasons that Judge Quirk’s statement on p. 28 of the Findings of Fact and Conclusions of Law, that respondent’s behavior, in and out of the courtroom, was willful and in the actual presence of members of the public, although made in support of his conclusion that the respondent violated MLRPC 8.4(d), was nevertheless a factual finding equally applicable to the Rule 8.4(b) charge. That finding, coupled with the court’s findings set out in finding 14, but especially finding 15, describing the respondent’s refusal to “heed” advice and directions he was given by the arresting officer; finding 16, relating to who was present to witness the interaction and arrest of the respondent; and finding 18, pertaining to the respondent’s response to being placed under arrest, sufficed to establish each of the ⁹⁸ criminal charges and, thus, the predicate for the MLRPC violation. The petitioner concedes, as it must, that no finding was made “that the members of the public were disturbed,” proffering in view of that omission that “logic requires a conclusion of same.” Acknowledging that Judge Quirk recognized that an acquittal in a criminal trial does not preclude a finding that the attorney violated a disciplinary rule, the petitioner nevertheless believes that he erroneously “consider[ed] the findings and conclusions of the court in Respondent’s criminal trial.” This belief is based, apparently, on Judge Quirk’s statement, when discussing the Rule 8.4(b) violation, that “Judge Lombardi’s decision is not without consideration or relevance in these proceedings.” The petitioner contends that it is proof that Judge Quirk considered and used that decision to conclude that it did not meet its burden of proof and, as important, that Judge Quirk did not comply with the direction given by Maryland Rule 16-757, to make findings of fact and draw conclusions of law based on the evidence presented and not to draw inferences from collateral matters. The petitioner recommends that the respondent be suspended from the practice of law for a period of 90 days.

As support for this recommendation, it relies on four aggravating factors: the respondent’s prior discipline; his failure to acknowledge the “wrongful nature of his conduct, specifically, “Respondent has not acknowledged that his intentional use of abusive language towards law enforcement officers assigned to maintain order in the courthouse was inappropriate;” 9 his substantial experience in the practice of law; and the illegal conduct in which the respondent engaged 10 and Attorney Grievance Comm’n. v. Alison, 317 Md. 523 , 565 A.2d 660 ⁹⁹ (1989), which it offers as a comparable case for purposes of determining the proper sanction. Exceptions were filed by the respondent, as well. His exceptions were not limited to the conclusions of law drawn by Judge Quirk, however. The respondent’s first exception is to the absence of a finding or conclusion.

He included in his answer to the disciplinary petition, as a kind of “affirmative defense,” a representation that he had apologized to Judge Pearson, who accepted the apology, thereby indicating that he considered the matter resolved. Noting that Judge Quirk did not make a finding on the point, the respondent contends that he is entitled to a favorable disposition of this matter, as he has “sustained his burden by proving ‘a matter of mitigation or extenuation ... by a preponderance of evidence’ as required by Md. Rule 16-757(b).” The respondent’s second exception is to “the Court’s Finding that Petitioner has proved the Averments of the Petition by Clear and Convincing Evidence.” As he sees it, “The core allegations in the Petition for Disciplinary or Remedial Action pleading misconduct by the Respondent are those contained in paragraphs six (6), seven (7) and eight (8). An examination of the record reveals that the testimony does not present ‘clear and convincing evidence’ that Respondent committed the actions described in paragraph six (6), seven (7) and eight (8) of the Petition.” By reference to the transcript, the respondent maintains, as to the allegations in paragraph six (6), that the findings are not supported by the record. He is persuaded by the absence of any reference in the transcript to the loudness of the speech or sound, except on one occasion, when Judge Pearson asked someone, presumably the respondent, to “keep your voice down a little bit.” As the respondent puts it: “In response to this allegation, Respondent contends that the transcript of the proceeding before Judge Pearson ... reveals an absence of any loud speech by Respondent.

The allegation of ‘speaking loudly’ is not supported because loud speech would have been recorded by the court’s stenogra ¹⁰⁰ pher. There is absolutely no indication of any content of the loud speech which allegedly occurred before the court.” The respondent also contends that the allegations in paragraph six (6) that he was passing notes to his client and was asked not to do so by “bailiffs and sheriffs” is not supported by the record. For support, he relies on his own testimony to the contrary, that he passed one note and was told by the bailiff that anything passed must go through him, and the testimony of the bailiff that he says asked him not to pass the note, which confirmed his testimony. In paragraph seven (7) of the disciplinary petition, it is alleged: “After being removed to the hallway, Respondent had an altercation.

He yelled insults at a deputy sheriff, using vulgar language and causing a disturbance.” In challenging the adequacy of the evidence to support these allegations, the respondent relies on his assessment of the testimony of the arresting officer, based on his reading of the transcript of the disciplinary proceedings and that of the criminal trial. He concludes that the arresting officer’s testimony was contradictory, primarily as it related to the disturbance aspect of the matter, the gathering of a crowd, the number of people, its composition, etc., and, therefore, not credible. With regard to the allegation that he used vulgar language and caused a disturbance, the respondent avers, without any specificity: “There is no credible evidence that any public citizen was disturbed by Respondent. Finally, Respondent has freely admitted that he utilized the term ‘ass’ to refer to Deputy Milam.

However, the definition of ass is utilized to refer to a stupid person and is a term utilized in everyday speech.” To the allegations of paragraph eight (8), pertaining to resisting arrest, the respondent responds: “An examination of the Statement of Probable Cause and Deputy Milam’s testimony of the criminal trial reveals that Respondent was arrested because of pure speech. Moreover, the Bar Investigation concluded that Respondent was ¹⁰¹ arrested because of his statement to Deputy Milam that he was an ‘ass.’ The arrest in total was illegal and the illegal touching of Respondent by Deputy Harville preceded the illegal arrest by Deputy Milam.” The third exception filed by the respondent is to a finding made by the court during its summarization of the testimony of the various witnesses, in Section 1 B of the Findings of Fact and Conclusions of Law, that the respondent was “escorted” from the courtroom “while Judge Pearson was hand-writing the Final Protective Order and before the court announced the Oral Ruling.” He argues that he was in the courtroom and heard the entire oral ruling and was removed when he attempted to approach his client. He maintains that the transcript of the proceedings confirms that is so. The exception is also to the accuracy of the use of the word, “escort,” to describe his removal.

On the contrary, the respondent, relying on the arresting officer’s testimony, submits that he was “grabbed” and walked out. The gravamen of the respondent’s fourth exception is a challenge to Judge Quirk’s credibility determination with respect to the arresting officer, Deputy Milam. He notes that Judge Quirk had a number of concerns about the arresting officer’s testimony: his reporting of the sequence of events was confused, and his testimony at the disciplinary proceedings differed, “in pertinent part,” from his testimony at the criminal trial and his written Statement of Probable Cause. Having detailed Judge Quirk’s concerns with the arresting officer’s testimony, which the respondent characterizes as “chameleon-like,” the respondent laments: “Respondent fails to comprehend how the court can reflect upon Deputy Milam’s having testified against Respondent at the criminal trial and having embellished his testimony and yet credit his testimony in this case.

Respondent’s freedom was at stake in the criminal trial and Milam clearly has asserted fictitious details throughout the Respondent’s ordeal with the bar charges and the criminal charges. The question looms large how do you credit any testimony of ¹⁰² Deputy Milam when clearly Deputy Milam has no hesitancy to make up details.” Similarly, the respondent’s fifth exception challenges the evidentiary value of the hearing testimony provided by both Deputy Wimbush and Bailiff Harris. In Judge Quirk’s evidentiary summation, contained within his Findings of Fact and Conclusions of Law, the hearing judge described Deputy Wimbush’s hearing testimony pertaining to events that occurred outside of the courtroom as “far less credible and greatly embellished from the version of events recited in his written statement created on the date of the incident.” Additionally, Judge Quirk described Bailiff Harris’ hearing testimony regarding events that occurred outside of the courtroom as “far more expansive than, but without inconsistency from, his written version of events contemporaneously made.” 11 Accordingly, the respondent contends that the hearing testimony of both Deputy Wimbush and Bailiff Harris demonstrates a lack of clear and convincing evidence presented by the petitioner. In his final exception, without explaining why, the respondent excepts to Judge Quirk’s findings in paragraphs 14, 15, 16, 17, 18, 20, 21, 22 and 26.

The respondent also challenges, without further elaboration, the refusal to admit his Exhibit 6, which he says contained the admission of a party opponent. This Court, in the exercise of its original and complete jurisdiction over attorney disciplinary proceedings, Attorney Grievance Comm’n. v. Maignan, 390 Md. 287, 292 , 888 A.2d 344, 347 (2005); Attorney Grievance Comm’n. v. James, 385 Md. 637, 654 , 870 A.2d 229, 239 (2005); Attorney Grievance Comm’n. v. O’Toole, 379 Md. 595, 604 , 843 A.2d 50, 55 (2004); Attorney Grievance Comm’n. v. Glenn, 341 Md. 448, 470 , 671