Attorney Grievance Commission v. Marcalus

¹⁹⁹ WATTS, J. This attorney discipline proceeding involves a lawyer who, among other misconduct, engaged in “sexting” 1 with a female party in litigation in which he represented the opposing party, and informed the female party that a “sugar daddy” 2 would pay her to watch her masturbate. Jeffrey S. Marcalus (“Marcalus”), Respondent, a member of the Bar of Maryland, texted Lindsay Dudley (“Dudley”) — a self-represented party in litigation in which Marcalus represented the opposing party — to, among other things, request a photograph of Dudley in a bathing suit; discuss whether Dudley would be willing to use “toys” with a “sugar daddy”; and state that he “usually wake[s] up with” an erection. Alter Dudley engaged counsel, her attorney filed a complaint against Marcalus with the Attorney Grievance Commission (“the Commission”), Petitioner. On November 15, 2013, on the Commission’s behalf, Bar Counsel filed in this Court a “Petition for Disciplinary or Remedial Action” against Marcalus, charging him with violating Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) 1.7 (Conflict of Interest: General Rule), 4.2 (Communication with Person Represented by Counsel), 4.3 (Dealing with Unrepresented Person), 8.4(b) (Criminal Act), and 8.4(d) (Conduct that is Prejudicial to the Administration of Justice).

On November 20, 2013, this Court designated the Honorable Paul F. Harris, Jr. (“the hearing judge”) of the Circuit Court for Anne Arundel County to hear this attorney discipline proceeding. On April 24 and 25, 2014, the hearing judge conducted an evidentiary hearing. On July 22, 2014, the hearing judge filed in this Court an opinion including findings ²⁰⁰ of fact and conclusions of law, concluding that Marcalus had violated MLRPC 8.4(d), but had not violated MLRPC 1.7(a)(2), 4.2(a), 4.3, or 8.4(b). On February 5, 2015, we heard oral argument, and, immediately afterward, disbarred Marcalus.

See Attorney Grievance Comm’n v. Marcalus, 441 Md. 619 , 109 A.3d 131 (2015) (per curiam). We now explain the reasons for Marcalus’s disbarment. BACKGROUND The hearing judge found the following facts, which we summarize. In December 1993, this Court admitted Marcalus to the Bar of Maryland.

In 2012, Kendall Minchin (“Minchin”) retained Marcalus to represent him in a custody modification action in which the other party was Dudley, the mother of Minchin’s child. Initially, Dudley represented herself; thus, Dudley and Marcalus exchanged telephone numbers and e-mail addresses. Marcalus scheduled a deposition of Dudley for November 14, 2012. On November 13, 2012, Marcalus texted Dudley to confirm that her deposition would occur the next day.

Dudley texted Marcalus to respond in the affirmative. Afterward, Marcalus texted Dudley to ask whether she knew anyone who did modeling or promotional work. Soon thereafter, Marcalus texted Dudley to apologize and state that his text about modeling or promotional work was meant for a client, not Dudley. On November 14, 2012, Marcalus deposed Dudley.

Afterward, Marcalus asked whether Dudley would consider moving to the school district in which Minchin lived. Dudley responded that she could not afford to live in the school district in which Minchin lived, and joked that she would need a “sugar daddy” to do so. Later that day, Marcalus texted Dudley to state that he would “let [her] know if [he] c[ould] think of a s d [sic] for” her. ²⁰¹ On November 28, 2012, 3 Dudley texted Marcalus to ask: “[W]hat type of promotional work was your client lo[o]king for[?]” Marcalus and Dudley texted each other to arrange for Dudley to come to Marcalus’s office to discuss the modeling or promotional work. On that day, Dudley came to Marcalus’s office, where Marcalus told Dudley that she would need to bring bathing suits, high heels, and a lingerie-like short dress to the modeling or promotional work.

Dudley left Marcalus’s office, and Marcalus texted Dudley to ask: “[I]s it possible to e[-]mail a pic or two[?]” Dudley texted Marcalus to ask: “Yes[. W]hat kind of photos? Anything!?]” Marcalus texted Dudley to respond: “[W]ell maybe one in a suit you mentioned!. A]nd we forgot to talk about the other thing.” Marcalus and Dudley texted each other to arrange a meeting the next day to discuss a “sugar daddy” for Dudley.

Marcalus texted Dudley to offer to give her cash “to buy some things!.]” On November 29, 2012, Marcalus texted Dudley to arrange a meeting that day, to remind Dudley to bring the “outfit” so that Marcalus could see it, and to revisit the possibility that Dudley e-mail photographs of herself to Marcalus. On that day, Marcalus and Dudley met at a restaurant, got into Marcalus’s car, and went to a beach, where Dudley showed Marcalus outfits that she had brought. On November 80, 2012, Marcalus and Dudley texted each other to discuss what Dudley would be willing to do with the “sugar daddy” and whether Dudley would be willing to use “toys” with the “sugar daddy.” Marcalus and Dudley seemingly joked about Marcalus’s waking up with an erection. 4 On that day, during a telephone conversation, Marcalus told Dudley that the “sugar daddy” would pay her to watch her masturbate. ²⁰² Marcalus showed remorse for his conduct. At the evidentiary hearing, both Marcalus and Dudley testified that their statements to each other were a “joke.” Marcalus engaged in a deceptive practice during this attorney discipline proceeding, as, in his letter to the Commission responding to the complaint against him, Marcalus failed to state that his statements to Dudley were a “joke.” STANDARD OF REVIEW In an attorney discipline proceeding, this Court reviews for clear error a hearing judge’s findings of fact, and reviews without deference a hearing judge’s conclusions of law.

See Md. R. 16-759(b)(2)(B) (“The Court [of Appeals] shall give due regard to the opportunity of the hearing judge to assess the credibility of witnesses.”); Attorney Grievance Comm’n v. McDowell, 439 Md. 26, 35 , 93 A.3d 711, 716 (2014) (“[T]his Court reviews for clear error a hearing judge’s findings of fact[.]” (Citations omitted)); Md. R. 16-759(b)(l) (“The Court of Appeals shall review de novo the [hearing] judge’s conclusions of law.”). This Court determines whether clear and convincing evidence establishes that a lawyer violated the MLRPC. See Md. R. 16-757(b) (“The [Commission] has the burden of proving the averments of the petition [for disciplinary or remedial action] by clear and convincing evidence.”). DISCUSSION (A) Findings of Fact The Commission did not except to any of the hearing judge’s findings of fact.

Marcalus excepted to: (1) the hearing judge’s finding that Marcalus “raised the prospect of Dudley masturbating for [the] ‘sugar daddy’ in exchange for” money; (2) the hearing judge’s finding that Marcalus engaged in a deceptive practice during this attorney discipline proceeding; and (3) the hearing judge’s refraining from finding that Marcalus lacked a selfish motive. 5 ²⁰³ We need not, and do not, rule on Marcalus’s first exception, which is based on Marcalus’s allegation that Dudley volunteered that she would be willing to masturbate in front of the “sugar daddy” in exchange for money; i.e., that Dudley raised the matter first. Even if Marcalus’s allegation is true, the hearing judge found (and Marcalus does not dispute) that Marcalus told Dudley that the “sugar daddy” would pay Dudley to watch her masturbate. This is the culmination of Marcalus’s misconduct as to the “sugar daddy.” We overrule Marcalus’s second exception, which is based on Marcalus’s allegation that the text messages that were admitted as evidence at the hearing made it “evident” that his statements to Dudley were a “joke.” Even if Marcalus’s allegation is true, the hearing judge found (and Marcalus expressly concedes) that, in his letter to the Commission responding to the complaint against him, Marcalus failed to assert that his statements to Dudley were a “joke.” In his letter to the Commission, Marcalus indicated that he “did have a single friend [who] may [have] be[en] interested in meeting” Dudley, and that “whatever the two of them did was between the two of them.” In other words, in his letter, Marcalus represented that he was acting as a liaison between Dudley and a friend who could become Dudley’s “sugar daddy.” Ostensibly, Marcalus represented the same to the Commission to implicitly deny that he himself had ever contemplated becoming Dudley’s “sugar daddy.” In any event, for whatever reason, in his letter to the Commission, Marcalus conveyed that there was an actual potential “sugar daddy.” Marcalus’s representation in his letter to the Commission is inconsistent with Marcalus’s testimony at the hearing that his statements to Dudley were a “joke” — i.e., there had never been an actual ²⁰⁴ potential “sugar daddy,” Marcalus himself or otherwise. Thus, the hearing judge did not clearly err in finding that Marcalus had been deceptive by not alleging in his letter to the Commission responding to the complaint against him that his statements to Dudley were a “joke.” We overrule Marcalus’s third exception, which is based on Marcalus pointing out that: (1) the Commission did not offer any evidence that Marcalus had a selfish motive; and (2) both Marcalus and Dudley testified that their statements to each other were a “joke.” “A respondent who asserts ... a matter of mitigation ... has the burden of proving the ... matter by a preponderance of the evidence.” Md. R. 16-757(b).

In other words, a lack of evidence of a selfish motive does not compel a fact-finder to declare a lack of a selfish motive. That Marcalus and Dudley testified that their statements to each other were a “joke” does not shed any light on Marcalus’s motive for making his statements, much less whether his motive was selfish. Thus, the hearing judge did not clearly err in refraining from finding that Marcalus lacked a selfish motive. (B) Conclusions of Law Marcalus excepted to the hearing judge’s conclusion that he violated MLRPC 8.4(d) (Conduct that is Prejudicial to the Administration of Justice).

For the below reasons, we overrule Marcalus’s exception. The Commission excepted to the hearing judge’s conclusion that Marcalus did not violate MLRPC 1.7(a)(2) (Conflict of Interest: General Rule); however, the Commission recommended that we disbar Marcalus even if we concluded that Marcalus violated only MLRPC 8.4(d). As discussed below, we agreed with the Commission that disbarment was the appropriate sanction for Marcalus’s misconduct based only on Marcalus’s violation of MLRPC 8.4(d); thus, we need not, and do not, determine whether Marcalus violated any other MLRPC. ²⁰⁵ MLRPC 8.4(d) (Conduct that is Prejudicial to the Administration of Justice) “It is professional misconduct for a lawyer to ... engage in conduct that is prejudicial to the administration of justice[.]” MLRPC 8.4(d). “Generally, a lawyer violates MLRPC 8.4(d) where the lawyer’s conduct negatively impacts the public’s perception of the legal profession.” McDowell, 439 Md. at 39 , 93 A.3d at 719 (citation, ellipses, and internal quotation marks omitted). In determining whether a lawyer violated MLRPC 8.4(d) by engaging in conduct that negatively impacted the public’s perception of the legal profession, “this Court applie[s] the ‘objective’ standard of whether” the lawyer’s conduct would negatively impact the perception of the legal profession of “a reasonable member of the public ..., not the subjective standard of whether the lawyer’s conduct actually impacted the public and/or a particular person (e.g., a complainant) who is involved with the attorney discipline proceeding.” Attorney Grievance Comm’n v. Carl Stephen Basinger, 441 Md. 703, 716 , 109 A.3d 1165 (2015) (quoting Attorney Grievance Comm’n v. Saridakis, 402 Md. 413 , 430 n. 10, 430, 936 A.2d 886 , 896 n. 10, 896 (2007)) (some brackets and internal quotation marks omitted). 6 ²⁰⁶ Here, clear and convincing evidence supports the hearing judge’s conclusion that Marcalus violated MLRPC 8.4(d).

At all relevant times, Dudley was a self-represented party in litigation in which Marcalus represented the opposing party. Whether mistakenly or not, Marcalus texted Dudley to ask whether she knew anyone who did modeling or promotional work. Later, Marcalus texted Dudley to state that he would “let [her] know if [he] c[ould] think of a s[ugar] d[addy] for” her. After Dudley expressed interest in the modeling or promotional work, Marcalus met with Dudley and told her that she would need to bring bathing suits, high heels, and a lingerie-like short dress to the modeling or promotional work.

Later, Marcalus texted Dudley to request a photograph of Dudley in a bathing suit. Marcalus and Dudley texted each other to arrange a meeting to discuss a “sugar daddy” for Dudley, and Marcalus texted Dudley to offer to give Dudley cash “to buy some things[.]” Still later, Marcalus and Dudley went to a beach, where Dudley showed Marcalus outfits that she had