Attorney Grievance Commission v. Mixter

BATTAGLIA, J. Table of Contents I. Introduction.......................................420 II. Judge Doory’s Findings of Fact .....................442 III. Judge Doory’s Conclusions of Law...................471 IV. Discussion.........................................477 A. Mixter’s Exceptions to Judge Doory’s Findings of Fact.............................478 B. Mixter’s Exceptions to Judge Doory’s Conclusions of Law..........................509 C. Sanction......................................527 V. Appendices........................................540 I. Introduction Mark T. Mixter, Respondent, was admitted to the Bar of this Court on November 20, 1980.

On March 26, 2013, the Attorney Grievance Commission, (“Petitioner” or “Bar Counsel”), acting pursuant to Maryland Rule lGWSRa), 1 filed a ⁴²¹ “Petition For Disciplinary or Remedial Action” against Respondent, alleging that Mixter engaged in a “pattern and practice that is outside the bounds of zealous representation, in direct defiance of the Discovery Guidelines of the State Bar, contrary to the Rules of Civil Procedure and in violation of the Maryland Lawyers’ Rules of Professional Conduct.” Violations were alleged of the following Maryland Lawyers’ Rules of Professional Conduct (“Rule”): 3.1 (Meritorious Claims and Contentions), 2 3.2 (Expediting litigation), 3 3.3 (Candor Toward the Tribunal), 4 3.4 (Fairness to Opposing Party and Counsel), 5 ⁴²² 4.1 (Truthfulness in Statements to Others), 6 4.4 (Respect for Rights of Third Persons), 7 5.3 (Responsibilities Regarding ⁴²³ Nonlawyer Assistants), 8 8.1 (Bar Admission and Disciplinary ⁴²⁴ Matters) 9 and 8.4 (Misconduct). 10 ⁴²⁵ In an Order dated March 28, 2013, we referred the matter for a hearing to Judge Melissa Phinn of the Circuit Court for Baltimore City, pursuant to Maryland Rule 16-757. 11 On August 22, 2013, at the request of Judge Marcella Holland, ⁴²⁶ Circuit Administrative Judge for the Eighth Judicial Circuit, this case was reassigned to Judge Timothy J. Doory. On May 31, 2013, a copy of the Petition, our Order and a writ of summons was served on Mixter’s counsel to which Mixter filed an Answer in which he denied all of Bar Counsel’s allegations. A five-day hearing was held before Judge Doory, during which voluminous exhibits from both parties were admitted, the majority of which included Mixter’s files from the various cases in which his actions occurred, as well as testimony from expert and lay witnesses; the latter included character witnesses called by Mixter. Judge Doory, on June 9, 2014, issued Findings of Fact and Conclusions of Law in which he found, by clear and convincing evidence, that Mixter had violated Rules 3.1, 3.2, 3.3, 3.4(a), (c), (d) and (f), 12 4.1(a), 4.4(a) and 8.4(a), (c) and (d), but not Rules 5.3(c) and 8.1. 13 For an understanding of the bases of Judge Doory’s findings that Mixter had filed various frivolous motions and made misrepresentations in connection with unenforceable subpoenas, as well as that Mixter made misrepresentations to various courts in relation to Maryland Rule 2-431 14 certificates, we provide an overview of the applicable Maryland Rules. ⁴²⁷ Subpoenas, according to Maryland Rule 2-510(a), 15 may be issued “to compel a party over whom the court has acquired jurisdiction to attend, give testimony, and produce and permit inspection [and] copying ... of designated documents ... or tangible things at a deposition,” the service of which is “permitted by Rule 2-121(a)(3)”. 16 Maryland Rule 2—121(a)(3) provides that service may be accomplished by mailing by ⁴²⁸ certified mail, restricted delivery, and that service “by certified mail under this Rule is complete upon delivery.” “If service is by certified mail, the proof shall include the original return receipt.” Maryland Rule 2-126(a)(3).

When a deposition subpoena is issued which calls for the production of documents, Maryland Rule 2-412(c) provides that, “the designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice and the subpoena shall be served at least 30 days before the date of the deposition.” 17 Furthermore, according to Maryland Rule 2-413(a)(l), 18 a non-party witness only may be required to attend a deposition “in the county in which the person resides or is employed or engaged in business, or at any other convenient place fixed by order of court.” A party to an action, on the other hand, “may ⁴²⁹ be required to attend a deposition wherever a nonparty could be required to attend or in the county in which the action is pending.” Maryland Rule 2—413(b). Because “the subpoena powers of the State of Maryland stop at the state line”, (Attorney Grievance v. Gallagher, 371 Md. 673, 702 , 810 A.2d 996, 1013 (2002), quoting Bartell v. Bartell, 278 Md. 12, 19 , 357 A.2d 343, 347 (1976)), when the deposition of, and/or documents from, a non-party outside of Maryland is sought, the dictates “of the place where the deposition is held” must be followed. Maryland Rule 2-413(a)(2). The intersection of Maryland Rules 2—413(a)(1), (a)(2) and (b) has been described as: [Rule 2-413] is conceptually a venue rule providing for the place where a deposition is taken.

It is limited by the judicial power of the courts to compel appearance or to sanction nonappearance. As a practical matter, a nonresident nonparty may be compelled to attend a deposition only to the extent he or she is subject to a body attachment, i. e., is present in the state. See Rule 2-510(i). A party’s deposition may be noticed for a location in the county where the action is pending, whether or not the party is a resident of that county.

This is because the party has been subjected to the judicial power of the court when initially served with process in the action under Rule 2-121. The party who is a resident of the State may be deposed in the county in which the party resides or works as well. With respect to a nonparty, there are fewer appropriate locations. The nonparty who is a resident may be deposed in the county where he or she lives or works.

A nonresident, on the other hand, cannot be forced to give a deposition in this State at all unless served with a subpoena while in this State. If the nonresidence is served in this State, the deposition may be taken in the county of service or within 40 miles of the place of service. If not served with a subpoena while in this State, the nonresident will have to be deposed in his or her own state under its rules. ⁴³⁰ Neimeyer & Schuett, Rule 2-413, Maryland Rules Commentary 297 (3d ed.2003, 2013 Supp.) Subpoenas were issued, by Mixter, to non-party witnesses in various of the following states during the years specified, according to Judge Doory’s findings of fact: Arizona (2012), 19 Florida (2008, 2009, 2011), 20 Iowa (2009, 2010), 21 North Carolina (2010), 22 Pennsylvania (2008, 2009, 2010), 23 South Carolina ⁴³¹ (2009, 2010), 24 Texas (2012), 25 Virginia (2007, 2009, 2010, 2011) 26 and Washington D.C. (2007, 2008, 2009, 2010, 2012) 27 ⁴³² Several states have in the past required, or continue to require, the issuance of a “commission” to take a deposition pursuant to litigation in another state.

A “commission” is a court order that authorizes the judiciary of another state to issue a subpoena to the witness who is located in that state. See Forensic Advisors, Inc. v. Matrixx Initiatives, Inc., 170 Md.App. 520, 525 , 907 A.2d 855, 857 (2006). Securing medical records of an adverse party requires observance of one of a variety of additional protocols as provided by Section 4-306 of the Health-General Article of the Maryland Code, four of which are relevant. 28 First, the party requesting the records may submit written assurance to the ⁴³³ health care provider that “a person in interest has not objected to the disclosure of the designated medical records within 30 days after the notice [that medical records had been requested] was sent” to the patient. 29 Section 4-306(b)(6)(i)(1)(B). In the event that there had been an objection to disclosure of the health care records, the party seeking disclosure could provide written certification to the health care provider that the objection had been resolved and that the new request complies with the terms of the resolution to the objection.

Section 4-306(b)(6)(i)(l)(C). The health care service provider also could be afforded proof that the court in which the litigation is pending has waived service of a subpoena for the production of documents to the provider for good cause. Section 4—306(b)(6)(i)(2). The fourth possibility is to submit to the health care provider a copy of a court order expressly authorizing disclosure of the designated medical records.

Section 4-306(b)(6)(i)(3). Maryland Rule 2-431 also creates a “certificate requirement” that is a prerequisite to the trial court’s resolution of a discovery dispute. The Rule provides that a court need not consider a discovery dispute, “unless the attorney seeking action by the court has filed a certificate describing the good faith attempts” to resolve the dispute with opposing counsel. The attorney must certify that he or she had been unable to reach an agreement with the opposition on the disputed issues and must “include the date, time, and circumstances of each discussion or attempted discussion.” In Rodriguez v. Clarke, 400 Md. 39, 63 , 926 A.2d 736, 750 (2007), we examined the history and purpose of the “certificate requirement” contained in Maryland Rule 2-431 and emphasized that making “sincere attempts” to resolve discovery disputes is “integral to the entire discovery process”: The import of Maryland Rule 2-431’s good faith requirement is highlighted by its history.

Its language derives ⁴³⁴ from former Rule 417(g), “Discovery by Interrogatories to Party ... Gen’l,” which provided: No dispute relating to discovery by way of interrogatory need be heard by the court unless counsel requesting the hearing shall first certify to the court in uniting that after personal consultation and sincere attempts to resolve the differences with opposing counsel, they have been unable to reach agreement on the disputed issues. No such efforts or certification shall be required with respect to any other form of discovery procedure provided for in Chapter 400 of these Rules. Maryland Rule 417(g) (adopted Dec. 17, 1975; effective Jan. 1, 1976) (emphasis added).

In 1980, this Court, recognizing that the “sincere attempts” provision of Rule 417(g) was integral to the entire discovery process, directed the Rules Committee to relocate the “sincere attempts” certificate requirement to Rule 422, “Failure to Make Discovery-Sanctions,” thereby making it applicable to the entire discovery process and to. require that the certificate also set forth the date, time and place of each attempt. See Minutes of Rules Committee, November 18-19, 1977, and June 20-21,1980. This Court subsequently adopted subsection (d) of Rule 422, providing that: No dispute relating to discovery need be heard by the court unless counsel requesting the hearing shall first certify to the court in writing that after personal consultation and sincere attempts to resolve the differences with opposing counsel they have been unable to reach agreement on the disputed issues. This statement shall recite, in addition, the date, time, and place of each consultation, and the names of all persons participating therein.

Maryland Rule 422(d) (adopted Oct. 1, 1980: effective Jan. 1,1981). During the revisory process of the Maryland Rules undertaken in the early 1980’s, the subcommittee tasked with recodifying Chapter 400 of the Maryland Rules submitted numerous revisions of Rule 422, the first of which modified ⁴³⁵ the “personal consultation” and “sincere attempts” language and provided: No dispute pertaining to discovery need be considered by the court unless counsel seeking action by the court shall first file a certificate describing the good faith attempts to communicate with opposing counsel for the purpose of resolving the dispute and certifying that they are unable to reach agreement on the disputed issues. The certificate shall include the date, time, and place of each attempt to communicate with opposing counsel and of each communication with opposing counsel. Maryland Rules Committee, Notes of Style Subcommittee (Nov. 3, 1981) (emphasis added).

The rule was later modified so that the “good faith attempts to communicate ” became a requirement to make “good faith attempts to discuss,” and “the date, time and place of each attempt to communicate ” was changed to require the setting forth “the date, time and circumstances of each discussion or attempted discussion.” Maryland Rules Committee, Notes of Style Subcommittee (April 28, 1983). This Court adopted the Committee’s second draft recommendations on April 6, 1984, and the new Rule 2-431 became effective July 1, 1984. Id. at 63-65 , 926 A.2d at 750-51 . Discovery disputes arise, generally, when parties cannot agree upon the propriety of a particular disclosure, request or response; although ignoring discovery requests altogether also generates issues: Two general sorts of discovery disputes arise in the pretrial discovery process.

The first is when discovery has been requested and the opponent responds but refuses to provide discovery at all or to the extent requested. Often, such a dispute stems from a good faith difference of opinion as to whether the requested discovery is appropriate. The second situation, lamentably, is when the party from whom discovery has been sought has simply ignored the discovery request or intentionally refused even to respond to it. ⁴³⁶ John A. Lynch, Jr. & Richard W. Bourne, Modern Maryland Civil Procedure 7-127 (2d ed.2004, 2014 supp.). 30 Maryland Rules 2^03, 31 2-415(j), 32 2-424(c), 33 2-432(b), 34 2-433(a), 35 2- ⁴³⁸ 434 36 and 2—510(f) 37 provide means through which court involvement can be sought to determine whether there had been proper discovery requests or objections. Id. ⁴³⁹ Against this backdrop, this case arose out of “the Respondent’s conduct in twenty-two (22) separate cases” that “span a period of approximately seven years and involve different parties, different opposing counsel, different judges and different courts”, according to Judge Doory’s findings of fact, as listed in Appendix 1. 38 In sixteen of the twenty-two cases, ⁴⁴⁰ Mixter represented the defendant(s), in five cases he represented the plaintiffis) and in one case he represented himself. 39 ⁴⁴¹ Judge Doory’s findings of fact as to Respondent’s actions fall into the following categories: Frivolous Motions Directed at Non-Party Witnesses; Frivolous Motions Directed at Out-of-State Witnesses; Subpoenas Issued to Out-of-State Witnesses; Subpoenas Issued in Violation of Rule 2-413; Additional Abuses of Subpoena Power; Frivolous Motions Directed at Opposing Party; False Certifications; Misrepresentations by Omissions; Misrepresentations and Disregard for Court Orders and Directives; Maintaining and Pursuing Litigation in Bad Faith; The Varner Opinion and Expert Witness Compensation; and Motions for Contempt: Harassment and Intimidation. 40 Judge Doory found that in eleven of the twenty-two cases, Respondent had issued subpoenas to out-of-state witnesses compelling production of documents without having followed the proper protocol for doing so, listed in Appendices 3 and 4, and, further, that Mixter misrepresented to the recipients that they could be compelled to appear in Maryland.

In seven of the eleven cases, Judge Doory found that Respondent had filed frivolous motions with the various courts to enforce the invalid subpoenas, listed in Appendix 3. In fourteen cases, Judge Doory found that Respondent had filed various different frivolous motions, some to compel, some for sanctions or some seeking contempt, directed to non-party witnesses emanating from his issuance of subpoenas that lacked proof of service or intentionally did not provide sufficient time for production of documents, listed in Appendix 2. ⁴⁴² In fifteen cases, according to the findings of fact, Mixter had also made false certifications to the various courts asserting that he had engaged in good faith efforts to resolve discovery-disputes, listed in Appendix 6. Judge Doory found that, in eight of those fifteen cases, Mixter had made misrepresentations to the courts by omitting material information from his motions, listed in Appendix 7. We recount below, for each of the categories of Judge Doory’s findings, representative examples within the category. 41 The complete lists of Judge Doory’s findings are included in the appendices attached to this opinion.

II

Judge Doory’s Findings of Fact In the first category of findings, entitled “Frivolous Motions Directed at Witnesses”, Judge Doory found that sixty-two separate motions to compel or hold in contempt, listed in Appendix 2, filed by Respondent and directed at non-party witnesses, were frivolous, because the underlying subpoenas that had commanded the appearance of the non-party witness and the production of documents were unenforceable. Judge Doory determined that the subpoenas were invalid, because “there was either no proof of service of the subpoena, or ... it did not provide the witness the requisite 30 days to produce documents as required by Maryland Rule 2-412(c)”: The Court finds that each of the 62 motions in which the Respondent alleged that a witness had been properly served with a valid subpoena constitutes a misrepresentation to the court. The Respondent’s pattern of practice in these cases is clear: in an attempt to mislead the Court, rather than represent the actual date of service, each of his motions states the witness in question was served “on or about” the date the subpoena was issued, not served. The Respondent knowingly, intentionally and/or recklessly attached to the motions false evidence that the witnesses ⁴⁴³ had been properly served in an attempt to mislead the court.

One of Judge Doory’s findings in his first category was that Mixter had misrepresented to the Circuit Court for Prince George’s County, in a case entitled Byme-Egan, the date of service of a subpoena on Dr. Stephen Rosenbaum, as well as that the subpoena had been accompanied by a 80-day assurance letter. Mixter had represented in his “Motion to Compel the Custodian of Records of Stephen Rosenbaum, M.D.”, that the witness was served “on or about August 25, 2011” as well as “that on September 26, 2011, the 30-day assurance letter was sent.” Judge Doory found that, in fact, there had not been proper proof of service presented in the record and that the 30-day assurance letter authorizing the release of the records under Section 4-306(b)(6)(i)(l) of the Health-General Article of the Maryland Code had been sent on the same day the motion to compel was filed; therefore, the Motion, Judge Doory found, was frivolous: Another example is found in the Motion to Compel the Custodian of Records of Stephen Rosenbaum, M.D. filed in Byme-Egan. To support his misrepresentation that the witness was served “on or about August 25, 2011” the Respondent attached to his motion a signed return receipt green card.[ 42 ] The green card is clearly from something else as it was dated August 16, 2011, more than a week before the relevant subpoena was issued. The Respondent additionally claims that on September 26, 2011, the 30-day assurance letter was sent.

Conspicuously, the Motion was filed on the same day—September 26, 2011—before the witness could have received the 30 day letter and could legally release the records. Judge Doory found that, “On occasion, the Respondent was successful in misleading the court and the requested relief was granted”, as in Keener, in which a judge with the Circuit Court for Charles County had granted an order compelling ⁴⁴⁴ the production of documents based upon Mixter’s misrepresentation that he had properly served a subpoena on Civista Medical Center for the production of documents, along -with a 30-day assurance letter. Respondent, then, according to Judge Doory, had mailed a copy of the order to Civista and threatened to hold Civista in contempt if it failed to produce the requested documents: On November 16, 2009, the Respondent in Keener, filed a motion to compel the production of documents from various custodians of records, including Civista Medical Center (hereinafter Civista). In the motion, the Respondent misrepresented to the court that Civista had been properly served with a subpoena for medical records.

The subpoena, issued on September 21, 2009, was defective on its face as it required production on October 19, 2009. The subpoena was served on September 22, 2009. On October 22, 2009, the Respondent sent a 30-day assurance letter and three weeks later filed the frivolous motion without any further attempts to resolve the “discovery dispute”. No doubt in reliance on the Respondent’s misrepresentations that a valid subpoena was properly served and good faith efforts were made to resolve the discovery dispute prior to the filing of the motion, on March 11, 2010 an order compelling Civista to produce the requested documents was entered.

On April 12, 2010, the Respondent mailed a copy of the order to Civista demanding the records be produced within five (5) business days and threatening further court intervention. On May 27, 2010, the Respondent filed a Motion to Hold Civista in Contempt and a show cause order was issued. On June 17, 2010, the Respondent withdrew the motion. In the second category, Frivolous Motions Directed at Out-of-State Witnesses, Judge Doory found that Mixter would “knowingly or recklessly, and in complete disregard for the Maryland Rules” issue “Maryland subpoenas to out-of-state witnesses over whom the Maryland courts have no jurisdiction and then filed frivolous motions to compel compliance with same.” ⁴⁴⁵ Judge Doory determined that twenty-four motions filed by Mixter, directed at out-of-state witnesses, listed in Appendix 3, were frivolous, “because the court in which they were filed had no jurisdiction over the non-party witness and their failure to comply with a Maryland subpoena, as such, the grounds for each of the motions was without merit”: The Respondent testified that on occasion he would mistakenly issue a Maryland subpoena to an out-of-state witness.

The Court finds the Respondent’s testimony not to be credible and finds that the Respondent, knowingly or recklessly, and in complete disregard for the Maryland Rules and directives from the court, issued Maryland subpoenas to out-of-state witnesses over whom the Maryland courts have no jurisdiction and then filed frivolous motions to compel compliance with same. The Court finds that the twenty-four (24) motions, identified in the attached Appendix Three (3), ... were frivolous because the court in which they were filed had no jurisdiction over the non-party witness and their failure to comply with a Maryland subpoena, as such, the grounds for each of the motions was without merit. Additionally, the Court finds the Respondent’s failure to include the location of the out-of-state witnesses in the body of each Motion to be intentionally and knowingly misleading. Judge Doory singled out Respondent’s actions in Mixter, a defamation case Mixter had filed against attorneys who had filed complaints against him with the Attorney Grievance Commission, as contradicting Respondent’s assertion that Maryland subpoenas had been issued to out-of-state witnesses only by mistake.

Judge Doory observed that a subpoena Mixter had issued to Dr. Michael Conte in Arizona for service in that state had been returned as unserved, and found that, after the subpoena was returned, Mixter mailed the subpoena again to Dr. Conte on the same day he filed a motion to compel Dr. Conte’s appearance in Maryland: The subpoena directed to Michael Conte, Ph.D. by the Respondent in the Mixter case and the motions that follow belie the Respondent’s testimony that Maryland subpoenas were issued to out-of-state witnesses only on occasion and ⁴⁴⁶ only by mistake. On March 6, 2012, the Respondent issued a subpoena from the Circuit Court for Baltimore County to Dr. Conte, located in Phoenix, Arizona. He attempted to serve the subpoena by first class mail, return receipt, restricted delivery. The subpoena directed Dr. Conte to personally appear.

On April 18, 2012, the Respondent filed a Motion to Compel, misrepresenting to the court that Dr. Conte had been served on March 6, 2012. No proof of service as to Dr. Conte was attached to the Motion. The documents attached to Dr. Conte’s opposition reveal the truth: On March 8, 2012, the certified mail directed to Dr. Conte was returned to the Respondent. On April 18, 2012, after the date of the deposition had come and gone, the Respondent put the returned certified mail into a new envelope and mailed the new envelope, by first class mail only, to Dr. Conte who received the mail on April 20, 2012.

Also on April 18, 2012, the Respondent filed his Motion to Compel, knowing that Dr. Conte had, as of that date, not received any subpoena. In his opposition, Dr. Conte, through counsel, raised various deficiencies with the subpoena including, inter alia, that the Respondent issued a Baltimore City subpoena to an Arizona resident. The Respondent, rather than acknowledge the error and withdraw his motion, filed a Reply in which he repeated his misrepresentation that Dr. Conte had been served on March 6, 2012 and advanced the impractical arguments that Maryland Rule 2-418 provides the Circuit Court for Baltimore City “the power to compel an out-of-state witness’ attendance at a deposition in Maryland” and that somehow Dr. Conte is required to produce the requested documents. Dr. Conte filed a Supplemental Memorandum in Support of his Response to the Motion to Compel requesting attorney’s fees to which the Respondent filed a Response in which he again misrepresented to the court that Dr. Conte had been served on March 6, 2012 and advanced another frivolous argument: That Dr. Conte is subject to the jurisdiction of the court because he “previously lived and worked in the State of Maryland.” ⁴⁴⁷ In the third category, Judge Doory found that Respondent had issued Maryland subpoenas, commanding the witnesses’ appearance and production of documents, to thirty-five additional out-of-state witnesses, listed in Appendix 4, coupled with letters containing knowing and intentional misrepresentations to the witnesses that their appearance could be compelled in Maryland: In addition to the Maryland subpoenas issued to out-of-state witnesses underlying each of the frivolous motions itemized on Appendix Three (3), the Court finds that the Respondent, in violation of the Maryland Rules issued Maryland subpoenas to the thirty-five (35) out-of-state witnesses identified on the attached Appendix Four (4) which is incorporated by reference herein.

Each of the subpoenas directed to an out-of-state witness included a cover letter from the Respondent which provided: “Enclosed please find a notice of deposition and subpoena duces tecum which is being served upon you via certified mail. If you would please forward copies of all documents requested by the date of the deposition it will not be necessary for you to testify or appear.” The Court finds the Respondent knowingly and intentionally misrepresented to the non-party witnesses, most, if not all of whom were non-attorneys, that they could be compelled to appear in Maryland. Some of the out-of-state witnesses, whom Judge Doory identified as having received subpoenas requesting their personal appearance and the production of documents that were improperly issued from Maryland courts, included: Bartley J. Eckhardt, P.E., of Robson Forensic, located in Lancaster, Pennsylvania; Amgolf, Inc., located in Fairfax, Virginia; the Hope for Life Wellness Center, Inc., located in Miami, Florida; Thomas F. Grogan, C.F.E., of Victoria Business Center, located in Springfield, Pennsylvania; and Dr. Stephen Silibiger, located in Pawleys Island, South Carolina. Judge Doory also found that Mixter, in his own case, had issued a subpoena to the Custodian of Records of Trial Smith, Inc., located in Austin, Texas, for the production of documents. ⁴⁴⁸ Judge Doory noted that Mixter had accompanied the subpoena with an unsigned Commission to Take Foreign Deposition, which was a misrepresentation that he had requested and obtained such a commission: Accompanying the Maryland subpoena issued to TrialSmith, Inc., located in Austin, Texas, the Respondent provided an unsigned “Commission to Take Foreign Deposition.” As of April 25, 2012, the docket entries reveal that no request for commission had been made and none granted.

The Court finds the Respondent serving an unexecuted Commission to Take Foreign Deposition on an out-of-state witness was knowingly and intentionally deceitful. In the fourth category, entitled “Subpoenas Issued in Violation of Rule 2-418”, Judge Doory found that “Respondent had a pattern and practice of knowingly and intentionally noting depositions in the wrong venue in violation of Maryland Rule 2-413”. Mixter, according to the findings of fact, would subpoena non-party, fact witnesses for depositions and production of documents at his office in Baltimore City, when the witnesses were located outside of Baltimore City and the cases were not pending in Baltimore City: (1) Subpoenas issued to a fact witness located in Silver Spring and Laurel compelling their appearance at Respondent’s office in Baltimore City where the case was pending in Montgomery County. (2) Subpoena issued to the plaintiff and fact witnesses located in Prince George’s County compelling their appearance at Respondent’s office in Baltimore City where their case was pending in Prince George’s County.

(3) Subpoenas issued to witnesses located in Baltimore County, compelling appearance at the Respondent’s office in Baltimore City. (4) Subpoenas issued to fact witnesses located in Montgomery County, compelling their appearance at the Respondent’s office in Baltimore City. (5) Subpoena issued to the Custodian of Records of Maryland Association for Justice, located in Howard County compelling its appearance at the Respondent’s Office in Baltimore ⁴⁴⁹ City. (6) Subpoena issued to opposing counsel located in Washington County compelling his appearance at the Respondent’s office in Baltimore City where the case at issue was pending in Washington County.

(7) Subpoena to an elderly fact witness who resided in Kent County to appear for deposition in the Respondent’s office in Baltimore City where the case was pending in Baltimore County. In the instances where the venue was challenged by opposing counsel, the Respondent rather than withdraw the subpoenas and note them in the appropriate venue, clung to his position and threatened sanctions or court intervention if the deponent failed to appear. In the section entitled “Additional Abuses of Subpoena Power”, Judge Doory identified episodes in Mixter, Alemu and Railey as examples in which Respondent abused his authority as an officer of the court by issuing subpoenas in order to harass and intimidate witnesses and opposing counsel. Judge Doory found that Mixter, in his own case, had issued subpoenas to ten witnesses, compelling appearance and the production of documents, without having provided sufficient time for such production, simply to harass the recipients: In the Mixter case, the Respondent issued numerous subpoenas aimed solely at harassing witnesses (most of whom were Respondent’s opposing counsel in other non-related cases) and the defendant’s.

On March 6, 2012, the Respondent issued subpoenas to nine “custodians of records” for attorneys and one doctor: Irwin E. Weiss, Esquire, Daniel Sussman, Esquire, John Kazmierczak, Esquire, Steven Shechtel, Esquire, Howard Simcox, Esquire, Lee J. Eidleberg, Esquire, Henry Greenberg, Esquire, Stephen A. Markey, III, Esquire, Michael Conte, M.D. The subpoenas directed the witnesses to “appear and produce all documents or other forms of communications, including electronic either received from or forwarded to James Farmer or James E. Farmer, P.A. or Charles Bowie or Alison Heurich or Charles E. Farmer regarding Mark T. Mixter at any time whatsoever.” Despite the fact that subpoenas issued from the Circuit Court for Baltimore City ⁴⁵⁰ have an option to allow the witnesses to “produce documents and or objects only”, the Respondent instructed the witnesses to “personally appear and produce documents or objects.” The subpoenas were accompanied by a cover letter that provided: “If you would please forward copies of all documents requested by the date of the deposition it will not be necessary for you to testify or appear. Please not that we are not authorizing the use of a record copy service. Additionally, we will not pay for any such services without written approval.” All of the subpoenas were issued on March 6, 2012 and required appearance on April 6, 2012. None of the subpoenas were timely served to allow the witnesses the requisite 30 days to produce documents.

Many of the nine witnesses filed, or retained counsel to file motions to quash and/or limit the subpoenas, all of which were granted by the court. In Mixter’s own case, Judge Doory recounted, among others, the events surrounding the subpoena directed to an attorney named Daniel Sussman, one of the witnesses in the suit. Mr. Sussman had filed a motion to quash Mixter’s deposition subpoena and production of documents. Judge Doory found that Mixter had misrepresented in his response to the motion the date upon which Mr. Sussman had been served, among other things: Mr. Sussman, upon receipt of the deficient subpoena, wrote to the Respondent.

By letter dated March 12, 2012, Mr. Sussman stated that he had “searched the file of Daniel L. Sussman and there are no records relevant to this matter.” Mr. Sussman further informed the Respondent that he would not be appearing on the date of deposition. On April 22, 2012, Mr. Sussman was served with a subpoena compelling his appearance at deposition on May 3, 2012 and directing him to produce documents. On May 1, 2012, Mr. Sussman, through counsel, filed a Motion to Quash. In response, the Respondent filed a response to Mr. Sussman’s motion, a motion to compel Mr. Sussman’s appearance at deposition, and a reply to Mr. Sussman’s response thereto ⁴⁵¹ in which he misrepresented, among other things, the date that Mr. Sussman was served.

Finally, Judge Doory observed that Mixter also had subpoenaed the driving record of James Farmer, a Mixter defendant, and, in response to Mr. Farmer’s motion for a protective order as to his driving record, Mixter asserted “a multitude of disingenuous arguments”, including “that the driving record may reveal impeachable evidence including criminal convictions for driving-related offenses and alcohol related charges or problems that ‘may form the basis for evidence of habit/routine practice under Maryland Rule 5-406’ or ‘a common pattern of ongoing alcohol-related problems and/or alcohol-related criminal convictions.’ ” The Circuit Court for Baltimore City granted a protective order on the basis that Mr. Farmer’s “driving record had absolutely nothing to do with the pending claim for defamation and that the subpoena was aimed solely at harassing the defendant”: On June 14, 2012, the Respondent issued a subpoena and notice of deposition to the Custodian of Records for the Motor Vehicle Administration requesting “the entire driving record, including but not limited to any and all records, including, but not limited to, license tag applications and associated records, registration applications and associated records, driving records, handicapped tag applications and associated records, and any other records regarding James Farmer ... from the date of issue of any driver’s license.” Mr. Farmer, through counsel, filed a motion for protective order on the basis that Mr. Farmer’s driving record had absolutely nothing to do with the pending claim for defamation and that the subpoena was aimed solely at harassing the defendant. In response, the Respondent pursued a multitude of disingenuous arguments: that the driving record may reveal impeachable evidence including criminal convictions for driving-related offenses and alcohol related charges or problems that “may form the basis for evidence of habit/routine practice under Maryland Rule 5-406” or “a common pattern of ongoing alcohol-related problems and/or alcohol-related criminal convictions.” By Order dated Au ⁴⁵² gust 7, 2012, Mr. Farmer’s Motion for Protective Order was granted. Judge Doory found that Respondent also had misused subpoenas in Railey by attempting to compel the defendants’ attorney to produce documents unrelated to the litigation at issue: In Railey the Respondent propounded written discovery on the defendants and requested production of documents related to other civil matters in which the defendants had been involved. The unrelated matters involved garnishment of wages of some of the defendant’s employees and did not implicate the defendant in any fault in those matters whatsoever.

Counsel for the defendants invited the Respondent to defense counsel’s office to review all of the files requested. Despite the offer, the Respondent issued a notice of deposition to defense counsel to appear in Baltimore City for deposition. The defendants were forced to file a motion for protective order and the court found, “[o]f course it is improper to compel a deposition of a party’s counsel, especially in another county.” Finally, in Alemu, Judge Doory found that Mixter had abused the subpoena authority by attempting to secure the exhibits from Mixter’s client’s deposition, for which he was sanctioned: In Alemu, the Respondent issued a Maryland subpoena to the custodian of records of his opposing counsel located in the District of Columbia. The subpoena requested the custodian appear for a deposition and produce the exhibits from the Respondent’s client’s deposition.

Plaintiffs counsel filed a Motion for Protective Order and requested sanctions. A hearing was held on March 8, 2010 during which the court found the Respondent abused his authority to issue subpoenas and issued sanctions in the amount of $250. The Respondent refused to pay the sanctions ordered and as a result, the Plaintiff filed a Motion for Sanctions. In response to the Motion, the Respondent argued that he “intends to appeal” the order issuing sanctions in the ⁴⁵³ amount of $250.

An order was negotiated whereby the Respondent paid the $250 but did not waive his right to appeal. Judge Doory, in the section of his findings of fact entitled “Frivolous Motions Directed at Opposing Party”, found forty-two instances, listed in Appendix 5, in which Mixter had filed frivolous motions, “because the Respondent either failed to make any good faith efforts to resolve the discovery disputes or the filings were filed prematurely or otherwise do not comply with the Maryland Rules.” Judge Doory put forth one example of Mixter having filed frivolous motions to compel and for sanctions directed at the opposing party in Koontz. Judge Doory noted that Respondent had propounded discovery on the Koontz plaintiffs for their medical and financial information, for which the plaintiffs had requested that Mixter agree to a confidentiality agreement in order to limit disclosure. Mixter, according to Judge Doory, moved to compel production of the medical and financial information, rather than enter into a confidentiality agreement.

Judge Doory found that a judge in the Circuit Court for Anne Arundel County denied Mixter’s motion but ordered that the plaintiffs provide the requested discovery, once a confidentiality agreement was executed. Mixter then, according to Judge Doory, moved for the circuit court to reconsider its denial of his motion to compel; then, before the circuit court had ruled on the motion, he executed a confidentiality agreement and demanded production of the medical and financial information from the plaintiffs within five days. Judge Doory found that, once the five days had elapsed, Respondent filed a motion to dismiss and/or for sanctions based upon the plaintiffs’ failure to provide their medical and financial information: The Respondent propounded discovery on the Plaintiffs, the discovery requested sensitive medical and financial information. The Plaintiffs asked the Respondent to enter into a confidentiality agreement which would not in any way preclude his receipt of discoverable information but rather limit the disclosure or redisclosure of sensitive information.

The ⁴⁵⁴ Respondent refused to enter into a confidentiality agreement and the Plaintiffs filed a Motion for Protective Order on August 11, 2009. On August 25, 2009, the Respondent filed a motion to compel discovery. By Order entered September 18, 2009, the court denied the Respondent’s motion to compel and ordered that the Plaintiffs “shall provide the requested discovery upon execution of an appropriate protective order to maintain confidentiality of medical and financial records.” On September 28, 2009, the Respondent filed a motion for reconsideration of the order. On October 8, 2009, the Respondent forwarded an executed Stipulation regarding confidentiality to the Plaintiffs and demanded that the outstanding discovery be provided “within 5 business days.” Less than two weeks later, the instant motion [to dismiss and/or for sanctions for Plaintiffs’ complete failure to provide discovery] was filed.

In addition to being filed prematurely, without allowing the Plaintiffs time to produce the requested information, the motion was filed without any good faith efforts to resolve the discovery dispute and the relief sought, dismissal and sanctions, is not contemplated under the Maryland Rules. Where there has been a response to discovery, albeit incomplete, the only remedy is a motion for an order compelling discovery. See Rule 2-482. In the Motion, the Respondent states that the Plaintiffs “refuse to produce the discovery.” There is no evidence that, once the confidentiality agreement was signed, the Plaintiffs refused to produce the information and documentation requested.

In the “False Certifications” Section, Judge Doory found fifty-three instances in which “the Respondent falsely certified to the court that good faith efforts to resolve discovery disputes had been made,” listed in Appendix 6. According to Judge Doory, Mixter’s certifications contained misrepresentations which were intended to mislead the courts into believing that he had engaged in good faith attempts to resolve discovery disputes; in fact, the exhibits Mixter had attached to the certificates were the original letters accompanying the subpoenas sent before any discovery dispute could have existed: ⁴⁵⁵ In each motion, in an attempt to mislead the court, the Respondent refers the court to attached exhibits “evidencing” his attempts to resolve the alleged discovery dispute. The exhibits attached to the motion are all the original cover letters accompanying the subpoena and/or the 30-day assurance letters, both of which were sent before any “discovery dispute” could have existed. The Court finds that the Respondent knowingly and intentionally falsely certified that he had complied with Rule 2-431.

The Respondent testified at trial that in addition to the cover letters being sent, a phone call was always made in an attempt to resolve the discovery dispute before any motion was filed. No documentation was provided to support this claim and the Court finds the Respondent’s testimony not credible. Rule 2-431 specifically states that the certificate “shall include the date, time, and circumstances of each discussion or attempted discussion.” (emphasis added). The Respondent failed to produce any evidence of the alleged phone calls: he did not offer any telephone message slips, memorandum to the file or phone records evidencing any of the purported phone calls that were “always” made prior to filing a motion.

In the Section entitled “Misrepresentations by Omission”, Judge Doory observed that Mixter had intentionally omitted from the twelve motions listed in Appendix 7 responses from the adverse parties or the witnesses, in an attempt to advance his position. In the Maryland Rule 2-431 certificates, for example: As discussed above, Rule 2-431 requires the Respondent to provide the date, time and circumstances of each discussion or attempted discussion had in an effort to resolve a discovery dispute prior to filing a motion. The Respondent routinely omitted correspondence from the other party or the witnesses related to the discovery dispute from his [Rule 2-431] certificate. The Court finds that the Respondent’s omission of material evidence was intentional and in an effort to advance his position.

Each of the motions filed by the Respondent and itemized on the attached Appendix ⁴⁵⁶ Seven (7), constitutes a misrepresentation by omission to the court as the Respondent knowingly and intentionally failed to include correspondence relating to the discovery dispute to the court for consideration. In the ninth category of his findings of fact, entitled “Misrepresentations and Disregard for Court Orders and Directives”, Judge Doory found that in the Alemu, Byme-Egan, Canby, Chíneme, Davis, Fuselier, Green, Johnson, Keener, Koontz, Mixter, Pearson and Presbury cases that Mixter had, in bad faith and without substantial justification, knowingly and intentionally made misrepresentations as to the contents of court orders or had disregarded court orders. In Byme-Egan, Judge Doory found that Mixter had knowingly and intentionally misrepresented to White Marsh Psychiatric Associates that no objection had been made to his subpoena for the third-party defendant’s mental health records and failed to provide the protective order that had been entered related to those same records: On December 2, 2011, the Respondent filed a Motion to Compel directed at the third-party defendant/counter-plaintiff in Byme-Egan based on her failure to provide answers to interrogatories and responses to requests for production of documents. On December 19, 2011, the third-party defendant filed a response to the motion stating: “This case was removed to Federal Court by Empire after it filed a Third Party Complaint against Seay in State Court and she filed a counterclaim.

Seay avers that this court has no jurisdiction in this matter and she has filed a Motion to Remand to State Court which has yet to be ruled upon. In any event, Seay intends to respond to Empire’s discovery requests within ten days.” On December 20, 2011, the Respondent wrote a letter to the Honorable J. Frederick Motz and stated, “The defendant’s motion to compel discovery from the plaintiff ... was filed on December 2, 2011. A response was filed yesterday and admits to the plaintiffs failure to timely answer my client’s discovery requests. Therefore, please provide counsel with a ruling on that motion at your earliest convenience.” The court finds that ⁴⁵⁷ the Respondent knowingly and intentionally mischaracterized and misrepresented the content of the opposition.

On February 21, 2012, Ms. Seay sought a protective order to prevent the Respondent from obtaining her psychiatric records. On May 5, 2012, the Respondent filed his opposition. On May 16, 2012, the Respondent sent a letter to White Marsh Psychiatric Associates, knowingly and intentionally misrepresenting that no objection had been made to the subpoena issued and requested Ms. Seay’s mental health records be provided. On May 18, 2012, Judge C. Philip Nichols, Jr., granted Ms. Seay’s motion and ordered that her psychological or mental health records, if any, are not to be produced.

In complete disregard for Judge Nichols’ order, on July 13, 2012, the Respondent filed a motion to compel White Marsh Psychiatric Associates to produce Ms. Seay’s treatment records. Despite withdrawing the motion to compel, Judge Nichols entered a Show Cause Order for Contempt directed at the Respondent. In response, the Respondent knowingly and purposefully skewed the facts of the case and his actions. While he admits that the subpoena directed to White Marsh was issued on April 16, 2012 before the protective order was granted, he omits from his response that the motion for a protective order was filed on February 21, 2012, and that while it was pending he knowingly and intentionally misrepresented to White Marsh on May 16, 2012 that no objection to the subpoena had been made.

In Chíneme, Judge Doory found that Mixter had facilitated the alteration and destruction of important evidence by his client. Judge Doory explained that when Mixter represented the defendant landlord in a mold case, the plaintiffs expert had attempted to inspect the premises, but Mixter blocked the expert from doing so. The plaintiff, according to Judge Doory, then filed a motion to compel, which was granted by the Circuit Court for Baltimore City, providing that the plaintiffs expert was to be allowed on the premises to conduct his testing. Judge Doory found, however, that, when the expert returned to the property, the items the expert had previously ⁴⁵⁸ intended to sample had been removed, thereby thwarting any testing, for which Judge Doory found that Mixter had facilitated his client’s alteration and destruction of evidence: In Chíneme, the Respondent represented the defendant, landlord Chíneme in a mold case.

The Plaintiff hired an expert, Robert K. Simon, Ph.D., an industrial hygienist-chemist to inspect the property on January 8, 2008. There was prior bad history between Respondent and Dr. Simon based on experience in Garnett. Prior to January 8, 2008, the third scheduled attempt to inspect the property, Dr. Simon received a subpoena to be deposed on January 7, 2008. Respondent claims it was only a records deposition but it still predates Dr. Simon’s inspection, the commencement of his participation in this case.

Dr. Simon went to 3706 Hillsdale Ave. and met plaintiff Shaneise Smith, Respondent and the Defendant on January 8, 2008. Dr. Simon testified that Respondent impaired his ability to inspect the property. Respondent allowed Dr. Simon to photograph some areas, take air samples and to do swipe testing. He did not allow access to the basement door area.

Respondent did not allow Dr. Simon to do any “destructive testing.” Dr. Simon, in his expert opinion, felt it necessary to take carpet samples under a formerly leaking radiator; to take a section of wallboard inside a closet; to take a two-inch by two-inch section of water damaged 1950’s knotty pine paneling in the basement. Respondent testified that he was not at liberty to allow Dr. Simon to “tear apart” the property for testing. Respondent, in his experience felt this testing was unnecessary. Later in the day on January 8, 2008, Plaintiffs attorney Gary F. Stern filed a motion to compel to allow Dr. Simon access to do this testing.

He argues that the requested inspection, testing and sampling of said property would not be burdensome to the Defendant, intrusive or outside the ambit contemplated by the rules of discovery and Plaintiff would be prejudiced in presenting their case without the expert’s report. Further Stern argues that any delay in allowing Plaintiffs expert to gather samples for the purpose ⁴⁵⁹ of testing would allow the Defendant to alter, destroy or otherwise conceal critical evidence in this case. On January 28, 2008, Respondent filed a response. In his response, Respondent offers: “The Plaintiff also argues that delaying this process will prejudice the plaintiffs case by allowing the defendant to alter, destroy or otherwise conceal critical evidence.

That argument is rather disingenuous given that the plaintiff has not resided at the defendant’s premises for almost two years, and knew that she was going to assert this claim when she resided there or shortly thereafter.” After a great amount of wrangling over the setting of depositions and sharing of discovery documents; after Dr. Simon hired his own attorney, Steve Stine, Esq., to represent him in dealings with Respondent, on June 23, 2008, the Court granted a Motion to Compel Entry Upon the Premises. In June of 2008, Dr. Simon returned to the property to find that the carpet had been replaced and the knotty pine paneling had been replaced by painted wallboard. Dr. Simon’s inspection had been thwarted. Respondent testified that at no time did he authorize his client to make alterations.

It should be noted that this client was not called to testify and no evidence was presented to support the contention that the alterations were part of a beautification plan by the landlord on his own initiative. The case dragged on through a series of embattled depositions. It was settled in November of 2008. In late December Dr. Simon was still hoping to be paid by Respondent for his depositions after a prolonged fee dispute.

The Court finds the testimony of Dr. Simon on these points to be more credible than the testimony of the Respondent. The Court finds that without legitimate justification, Respondent facilitated his client in the alteration and destruction of important evidence. Judge Doory found that Mixter had also made a knowing misrepresentation to the Court of Special Appeals in Keener. Judge Doory observed that the Circuit Court for Charles County, after a hearing, had found Mixter in contempt for ⁴⁶⁰ failure to comply with a previous court order.

After a subsequent hearing, Judge Doory continued, the Circuit Court had awarded attorney’s fees to Mixter’s opposition. According to Judge Doory, Mixter appealed both of the Circuit Court’s orders to the Court of Special Appeals, asserting that the rulings had been made without a hearing. When apprised of this misrepresentation, Judge Doory found that Mixter had filed an errata sheet alleging that the misrepresentation was a “typographical error”; Judge Doory found that the error was not “typographical”, because it provided the basis for an argument and, therefore, the errata sheet was itself a misrepresentation to the Court of Special Appeals: In Keener, the Plaintiff filed a motion to compel based on the Respondent’s failure to adequately respond to requests for production of documents. Over the Respondent’s opposition, the court ordered the Respondent to produce “all documents requested by the Plaintiff, less those to which a claim of privilege is attached, at 3:00 p.m. on December 14, 2010 or 9:00 a.m. on December 16, 2010 at the offices of counsel for the Plaintiff.” On December 15, 2010, the Respondent, in defiance of the court order, asserted that by tendering medical records obtained through records depositions over the past year, he did not need to produce any documents.

The Plaintiff filed a Motion for Finding of Contempt and on January 20, 2011, the court issued a show cause order directed at the Respondent. After being fully briefed, a hearing was held on March 22, 2011. Following the hearing, the Honorable Helen Ina Harrington found the Respondent in contempt for failure to comply with the court’s order of December 8, 2010. Following the finding of contempt, the Plaintiff requested they be paid their attorneys’ fees for filing the various motions involving the contempt issue.

The request was denied. The Plaintiffs filed a motion for reconsideration of the request for attorneys’ fees and, on November 20, 2011 a hearing was held on the motion for reconsideration. After the hearing, the court awarded attorney’s fees against the Respondent personally in the amount of $3,287.00. ⁴⁶¹ The Respondent appealed both the finding of contempt and the award of attorneys’ fees to the Court of Special Appeals. In his brief he stated: “[o]n March 22, 2011, without a hearing, the Circuit Court for Charles County granted the Plaintiff’s Motion for Contempt, finding that defense counsel was in contempt ‘for failure to comply with the Court’s Order of December 8, 2010.’ ” The statement was a misrepresentation.

The Respondent repeated the misrepresentation a second time in his brief, arguing to the Court of Appeals: “on March 22, 2011, the Circuit Court for Charles County inexplicably (and without a hearing) granted the Plaintiffs Motion for Contempt, finding the defense counsel was in contempt ‘for failure to comply with the Court’s Order of December 8, 2010.’ ” In support of his argument that an order of contempt was improper the Respondent cited Maryland Rule 15-206(c)(2) which states “Unless the court finds that a petition for contempt is frivolous on its face, the court shall enter an order providing for (i) a prehearing conference, or (ii) a hearing, or (iii) both. The scheduled hearing date shall allow a reasonable time for the preparation of a defense and may not be less than 20 days after the prehearing conference.” The Respondent then argues that “the trial court erred in failing to set the above-captioned matter in for a hearing on the plaintiffs motion for contempt.” When the Plaintiff brought the misrepresentation to the Court of Special Appeals, the Respondent, rather than withdraw the argument and acknowledge that he had misrepresented the procedural posture of the case to the Court of Special Appeals, filed an errata sheet in which he alleges the misrepresentation on page 10 of his brief was a “typographical error”. The Court finds that the errata sheet was a misrepresentation to the Court of Special Appeals—the error was not typographical as it provided the basis for an argument. In Koontz, Judge Doory observed that Respondent had wrongfully represented to health care providers that the opposing party had not objected to disclosure of their medical ⁴⁶² records, in an effort to obtain confidential medical records.

The parties in Koontz, according to Judge Doory, had, in fact, stipulated to the entry of a Protective Order to maintain the confidentiality of the plaintiffs’ medical and financial records. Judge Doory found that Mixter violated the Order when he filed a Motion for Sanctions and/or Motion to Compel Supplemental Discovery to which he attached some of the confidential records at issue. Judge Doory noted that Mixter, after the plaintiffs had filed a Motion for Protective Order, issued subpoenas to nineteen of the plaintiffs’ health care providers asserting that the plaintiffs had not objected to the disclosure of their medical information: At the request of the Plaintiffs in Koontz, the court ordered that, before the Plaintiff was required to produce sensitive financial and medical information to the Respondent, the parties execute “an appropriate protective order to maintain confidentiality of medical and financial records. Such order will provide that the information may not be viewed or disclosed except to parties, counsel and their expert witnesses.” On October 8, 2009, the Respondent forwarded an executed Stipulation and Protective Order regarding confidentiality to the Plaintiffs.

The Stipulation included, inter alia, that “any document (including discovery responses and transcripts of testimony) containing confidential or proprietary information shall be stamped with the legend “CONFIDENTIAL” or otherwise identified by the party disclosing such information as confidential information, and the information contained therein shall not be disclosed except as provided in paragraph 3 above.” Paragraph Three (3) provided, that documents marked “Confidential” shall not be disclosed to anyone other than counsel, parties, court reporters and transcribers, expert witnesses and the court. On December 17, 2009, the Respondent filed a Motion for Sanctions and/or Motion to Compel Supplemental Discovery and, in violation of the protective order, attached thereto, the Plaintiffs’ answers to interrogatories that had been marked “Confidential.” On May 12, 2010, the Respondent ⁴⁶³ filed an Opposition to Plaintiffs Motion for Protective Order and attached thereto the Plaintiffs medical reports. On or about April 21, 2010, the Respondent issued subpoenas to nineteen (19) of Plaintiffs healthcare providers in Koontz. On May 5, 2010, the Plaintiffs filed a motion for protective order to quash and/or limit the subpoenas.

On May 21, 2010, while the motion for protective order was pending, the Respondent sent 30-assurance letters to the healthcare providers subject to the motion for protective order. In the letters, the Respondent misrepresented that the Plaintiff had “not objected to the disclosure of the requested medical records” and asked that the records be forwarded at the earliest convenience. The court finds that the Respondent’s statements to the healthcare providers were intentionally false. On July 1, 2010 and July 16, 2010, while the motion for protective order was still pending, the Respondent filed two Motions to Compel directed at records custodians subject to the protective order.

The Motion to Compel filed July 16, 2010 was sent to the custodian of records with a cover letter from the Respondent which stated: “Enclosed is a motion to compel discovery which we are filing in the case but which we would withdraw if we receive the records within five days. Furthermore, if you received a letter from opposing counsel (Ober, Kaler, Grimes & Shiver) indicating that there was a protective order issued in this case, it was false. In fact, not only was a protective order not obtained, but none was sought.” The Court finds the Respondent’s statements in the letters of July 16, 2010 were intentionally false. Judge Doory found that, in Pearson, Respondent had “in bad faith” made “an intentional effort to obstruct the defendants’ access to information and to circumvent [a] court order”.

According to Judge Doory, a judge of the Circuit Court for Prince George’s County had granted an order permitting the defendants to speak with the plaintiffs health care providers without the presence of opposing counsel. Judge Doory found that Mixter, subsequently, wrote letters to the nine health care providers admonishing them not to speak to the ⁴⁶⁴ defense attorneys, in an attempt to circumvent the court order and obstruct the defense’s access to evidence: In Pearson, the Respondent represented the Plaintiffs, a husband and wife, in a medical malpractice claim. The Defendants sought a court order to allow them to discuss the Plaintiffs healthcare with her healthcare providers, without the presence of opposing counsel. The Defendants listed the nine healthcare providers that they wanted to interview.

By Order dated May 18, 2012, the court granted the defendants the relief they sought and ordered “that the attorneys for the parties to this lawsuit are permitted to engage in ex parte discussions with [the nine healthcare providers identified].” On May 21, 2012, the Respondent wrote to the nine healthcare providers and stated: “Please be advised that I represent your patient, Gina Pearson in the above-captioned case. This case alleges medical malpractice on the parts of Dr. Lyles and Dr. Barson and their treatment of Ms. Pearson. Today, Judge Geter of the Circuit Court for Prince George’s County signed the enclosed order permitting the lawyers representing [the defendants] to contact you directly to discuss your treatment of Ms. Pearson. The order does not compel or mandate that you speak to these lawyers.

Furthermore, neither Ms. Pearson or myself wish to have you speak to these lawyers unless we are present. Therefore, it would be appreciated that in the event you are contacted by a representative of the two law firms that represent [the defendants], that you politely refuse to discuss Ms. Pearson’s treatment with that individual____We would also urge you to make sure that if you are contacted by anyone who wants to speak to you about your treatment of Ms. Pearson and they are from any law firm other than mine, that you simply indicate that you are not willing to talk to them informally.” The defendants filed a motion for sanctions and the Respondent filed an opposition. A hearing was held on August 17, 2012 at which the Honorable Melanie Shaw Geter found that while the Respondent’s letters to the healthcare providers ⁴⁶⁵ “thwarts the spirit of the order” they did not directly violate the order. This Court finds the Respondent’s May 21, 2012 letters were sent, in bad faith, in an intentional effort to obstruct the defendants’ access to information and to circumvent the court order.

Judge Doory also determined that Mixter had maintained the Railey litigation “in bad faith and without substantial justification. Not only did the Respondent bring and pursue the case in bad faith but he engaged in abusive, harassing and frivolous discovery practices throughout the entire case”. Judge Doory found that Respondent had represented Nancy Railey, plaintiff, before the Circuit Court for Washington County against, inter alia, a group known as the “Cochran Defendants.” According to Judge Doory, after Ms. Railey’s deposition, it became clear that there was no legal basis for Ms. Railey’s claims. Judge Doory observed that, nevertheless, Mixter had frivolously and in bad faith continued the action against the Cochran Defendants and had refused to dismiss a named defendant unless the defense counsel drafted the line of dismissal: In Railey the Respondent, on behalf of the plaintiff Nancy Railey, filed suit against a number of Defendants alleged to have been involved in the Plaintiffs’ purchase of nursery stock at an auction.

Included among the defendants were the auction company, the auctioneer and an employee of the company, the “Cochran Defendants.” The Plaintiffs, through the Respondent, sued the Cochran Defendants for fraud, breach of contract, breach of fiduciary duty and assault. Summary judgment was eventually granted to all defendants on all grounds. During discovery the Cochran Defendants deposed Ms. Railey whose testimony undermined the factual basis for all of the counts against the Cochran Defendants. Despite the “devastating” deposition, the Respondent continued to pursue the case in bad faith and without substantial justification.

Not only did the Respondent bring and pursue the case in bad faith but he engaged in abusive, harassing and frivolous discovery practices throughout the entire case. ⁴⁶⁶ Following Ms. Railey’s deposition in which she exonerated the Cochran Defendants, the Respondent unilaterally noted the depositions of ten non-party witnesses, six of whom were Cochran employees. The deposition notices served no legitimate purpose and were aimed solely at harassing the Cochran defendants. Special note should be made of the Defendant Leo Cline. He was a named party among the “Cochran Defendants” because the Plaintiff represented by the Respondent believed he had a managerial position at the auction.

It was learned during discovery that he was primarily involved in manually setting up the auction site. On April 7, 2011 [defendants’ attorney] Alfred Scanlon urged respondent to dismiss Leo Cline from the case based upon the unquestioned testimony of everyone deposed that it would be impossible for him to be involved in any of Respondent’s theories of liability. Respondent replied that he would be willing to dismiss Mr. Cline, without prejudice, only if Mr. Scanlon would prepare the line of dismissal. Mr. Scanlon quite credibly described this as a “tit for tat” attitude.

The Respondent never filed the Line of Dismissal. At an August 24, 2011 motions hearing, Respondent refused to even orally dismiss this meritless claim. Mr. Cline remained an active defendant until the granting of summary judgment on September 8, 2011. During the hearings in the instant case, Judge Doory also had received “substantial testimony ... with regards to the [misleading] use of [a trial court’s action in a case titled] Greater Washington Orthopaedic Group, PA v. Varner and Miles & Stockbridge (Case No. 88899)” (Hereinafter “Varner”).

In Varner, according to Judge Doory, “on April 9, 1993, the Honorable Peter J. Messitte, then of the Circuit Court for Montgomery County, Maryland, issued a ‘Revised Order’ ” in which Judge Messitte explained “that the treating physician for a plaintiff cannot charge a fee for deposition or trial that is greater than the fee charged to the physician’s usual and customary office practice.” Judge Doory found that Mixter routinely mailed to expert witnesses for the opposing ⁴⁶⁷ side a copy of Judge Messitte’s interlocutory order in Varner along with a cover letter stating, “I have also enclosed a copy of the decision in the case of Greater Washington Orthopedic Group, P.A. v. Varner, et al., which sets forth the method of payment for your time spent testifying.” At the hearing, Judge Doory received testimony from Mixter’s expert witness, Alan Feld, as an expert in the field of civil litigation, who “testified that the Varner opinion provides a proper guideline to be used in determining what a reasonable fee would be for an expert’s time.” Judge Doory, despite Mr. Feld’s testimony, found that “Respondent’s statement to the non-lawyer witnesses that the Varner opinion governs ‘the method of payment’ is misleading”: 43 Respondent’s statement to the non-lawyer witness that the Varner opinion governs “the method of payment” is misleading. While the Varner opinion may provide some guidance to a court in determining what a reasonable fee is pursuant to Maryland Rule 2-402(g)(3), it is of questionable value to send to a non-lawyer witness of the opponent. The Honorable Judge Lawrence P. Fletcher-Hill, for the Circuit Court for Baltimore City, in denying one of Respondent’s motions to hold an expert in contempt and to set the expert’s fee, opined: As discussed, Defendants rely heavily on the Revised Order in Greater Washington Orthopaedic Group, P.A. v. Varner. The very short answer to Defendants’ reliance on this order as controlling in this case is that it is a nonbinding order of another Circuit Court issued almost twenty years ago.

It is persuasive authority at most. In addition, it was limited by its terms to treating physicians who are called upon to testify in that capacity. More important, it pre-dates Kilsheimer, which is binding on ⁴⁶⁸ this Court and the revisions to what is now Maryland Rule 2-402(g)(3). The Respondent’s practice of including the Varner opinion in his correspondence with expert witnesses raises the question of motive.

Respondent claims that this is done to control excess fees and save money for his clients, although considering filing and litigation costs no net savings were shown. Petitioner contends that this is primarily a ploy by Respondent to increase his billable hours. The Court cannot accept either theory. The Court finds that Respondent uses the Varner opinion as part of an opening salvo to indicate that depositions and discovery involving expert witnesses will be conducted on the terms he dictates.

It is an attempt by Respondent to upset expert witnesses and create fee and discovery disputes with an aim to take an unfair advantage for his clients by having witnesses fail to cooperate and potentially be excluded from trial. Including the Varner opinion in opening correspondence is an announcement to opposition that, as Lee Salteberg, Esq., testified, it’s time to “buckle up and hold on.” In the twelfth section of the findings of fact entitled “Motions for Contempt: Harassment and Intimidation”, Judge Doory found that Mixter would routinely file motions to hold medical professionals, who had been noted as expert witnesses by the other side, in contempt, based upon their alleged failure to appear for their deposition. The motions, however, omitted the fact that there were disputes as to payment of the experts: The Respondent routinely filed motions to hold expert witnesses and lay witnesses in contempt of court based on their alleged failure to appear for deposition in disregard of a validly issued and properly served subpoena. The record reveals the inescapable truth: all of the motions as they related to medical professionals are based on an alleged dispute as to the method and amount the professional will be paid for their deposition testimony.

Rather than file an ⁴⁶⁹ appropriate motion with the court—a motion to set the experts’ fees—the Respondent filed to hold the doctors in contempt and within those motions made substantial misrepresentations to the court. The Court finds that this practice is disingenuous and most assuredly aimed at harassing and intimidating opposing parties and expert witnesses by threatening an order of contempt in an attempt to force the expert to appear at deposition on terms, often unreasonable, set by the Respondent or be excluded from testifying at trial. Despite the duplicative nature of many of the motions that are discussed below, a review of each is important to understand how the Respondent casually made misrepresentations to the court that potentially have real and lasting impact on non-parties. All of the motions related to all of the witnesses are based on material misrepresentations: that the witnesses were properly served with a valid subpoena and failed to appear for deposition.

Judge Doory determined that the motions within the Petitioner’s exhibits related to Joshua Aaron, M.D., Ian M. Weiner, M.D., Douglas M. Shepard, M.D., Clifford T. Solomon, M.D., Mark Danziger, M.D., William Tham, M.D., Kevin Lurie, M.D., Curtis Colbert, Thomas M. Weschler, Richard Thompson, Paul R. Cooper, Robert H. Hillman, Douglas Barnes, D.D.S., Shaheer Yousaf, M.D., Mathew Mulqueen and Victor Wowk, M.D., were all “based on material misrepresentations: that the witnesses were properly served with a valid subpoena and failed to appear for deposition” and were “most assuredly aimed at harassing and intimidating opposing parties and expert witnesses”. As an example, the circumstances in which Dr. Shepard was involved are typical of the entire group of experts. Judge Doory found that Mixter had noted the deposition of Dr. Shepard and had included the Varner opinion with the notice of deposition. When Dr. Shepard’s employer requested advance payment of his fees, Judge Doory noted that Mixter cancelled the deposition, refused to pay Dr. Shepard’s fee and called Dr. Shepard to threaten contempt if Dr. Shepard did not appear at the deposition.

Judge Doory found that Mixter ⁴⁷⁰ subsequently filed a Motion to Hold Dr. Shepard in Contempt in which he misrepresented to the court that Dr. Shepard had been properly served; the circuit court, subsequently, in reliance on Mixter’s misrepresentation, issued a Show Cause Order directed at Dr. Shepard that Mixter was to serve on the doctor by October 10, 2009. Judge Doory found that Mixter, then, on October 19, 2009, filed a false Affidavit of Service which misrepresented that Dr. Shepard had been served on October 6, 2009: On June 17, 2009, Respondent noted the deposition of Douglas M. Shepard M.D., the Plaintiffs treating physician, for August 7, 2009, in Gnip. Enclosed with the subpoena and notice of deposition was a copy of the Varner opinion. MedStar Health, Dr. Shepard’s employer, requested Dr. Shepard’s fees be pre-paid in the amount of $750.00 per hour.

On August 6, 2009, Respondent cancelled the deposition and refused to pay Dr. Shepard’s fee. On or about August 6, 2009, the Respondent called Dr. Shepard, used colorful language, told him that he would not pay his fee and threatened to hold him in contempt of court if he did not appear at deposition. On or about September 25, 2009, the Respondent filed a Motion to Exclude and/or Motion to Hold in Contempt Douglas M. Shepard, M.D. In the motion the Respondent misrepresents to the court that Dr. Shepard “was served on June 17, 2009” and directs the court to the attached green card. The green card is signed, not by Dr. Shepard but by “N. Flavers.” On September 30, 2009, in reliance on the Respondent’s misrepresentation, the court issued a Show Cause directed at Dr. Shepard.

The Show Cause Order required Dr. Shepard be served on or before October 10, 2009. On October 19, 2009, the Respondent filed an Affidavit of Service in which he falsely certified that the Show Cause Order was served on Dr. Shepard “on or about October 6, 2009 by evidence of the signature on the return receipt attached to this affidavit as Exhibit ‘A’ ”. The return receipt attached shows that the certified mail was not sent restricted delivery as required by Rule 2-121 and was not ⁴⁷¹ signed for by Dr. Shepard. On October 19, 2009, the case settled.

On October 20, 2009, Dr. Shepard’s Attorney, Shannon M. Marshall, Esquire filed Non-Party Douglas Shepard, M.D.’s Response to Defendant’s Motion to Hold Dr. Shepard in Contempt.

III

Judge Doory’s Conclusions of Law After delineating these comprehensive findings of fact, Judge Doory then determined the following conclusions of law: Rule 3.1. Meritorious Claims and Contentions. The Court finds that each of the frivolous motions the Respondent filed as discussed herein is a violation of Rule 3.1. Additionally the Court finds that the Respondent’s bringing and pursing the Radley litigation violates Rule 3.1.

Failure to promptly dismiss the Defendant Leo Cline is particularly egregious. Rule 3.2. Expediting litigation. The Court finds the Respondent’s pattern of practice as demonstrated in the cases at issue herein violates Rule 3.2.

Specifically, the Court finds the Respondent’s filing of frivolous motions, requesting hearings on every motion and opposition filed, generally acting in an obstructionist manner and failing to cooperate with opposing counsel in the orderly taking of discovery including exchanging written discovery and taking depositions, creating protracted fee disputes with experts and causing confusion for opposing parties, witnesses and the courts all knowingly and purposefully delays litigation and cannot be said to be in the best interest of the client. Rule 3.3. Candor Toward the Tribunal. The Court finds that the Respondent routinely made false statements of material fact to the courts in violation of Rule 3.3(a)(1) and (a)(4).

In addition to the specific misrepresentations to the court outlined in the section entitled “Misrep ⁴⁷² resentations and Disregard for Court Orders and Directives,” the Respondent routinely misrepresented that out-of-state witnesses were subject to the jurisdiction of Maryland courts, valid subpoenas were issued and properly served, dates of service, that he made good faith efforts to resolve discovery disputes prior to filing motions and that opposing parties or non-party witnesses had refused to respond to his efforts to resolve discovery disputes. Rule 3.4. Fairness to Opposing Party and Counsel. The Court finds the Respondent violated Rule 3.4(a) by obstructing Dr. Simon’s access to evidence and thereby facilitating his client in the destruction of evidence in the Chíneme case.

The Respondent and his client were present during Dr. Simon’s initial inspection and learned the specific areas that would be subject to testing. When Dr. Simon returned months later to conduct his inspection and gather samples, the property had been repaired. The Respondent took no steps to preserve the evidence that the Plaintiff needed to pursue her claim although the attorneys discussed this very possibility. In addition to knowingly disobeying the rules of procedure as outlined, the Court finds that the Respondent knowingly and intentionally disobeyed specific court orders and directives as stated in the section entitled “Misrepresentations and Disregard for Court Orders and Directives” in violation of Rule 3.4(c).

The Court finds that the Respondent abused his authority, as an officer of the court, to issue frivolous subpoenas and make frivolous discovery requests and demands in violation of Rule 3.4(d). The Court finds that the Respondent, in requesting the Plaintiffs’ doctors to not speak with defense counsel in Pearson violated Rule 3.4(f). Rule 4.1. Truthfulness in Statements to Others. ⁴⁷³ In addition to the false statements made to the courts as discussed under Rule 3.3, the Court finds the Respondent made false statements of material facts to opposing parties and witnesses as described in the section entitled “Misrepresentation and Disregard for Court Orders and Directives.” The Court finds that the Respondent violated Rule 4.1(a) in that he made a false statement of law to third persons including: (1) stating, either directly or by way of motion, to witnesses that they could be held in contempt of court or subject to other sanctions for failing to appear at deposition where the witnesses were never properly served with a valid subpoena; (2) stating to non-party out-of-state witnesses that they were required to comply with a Maryland subpoena; (3) stating to parties or witnesses that they were compelled to appear for deposition at a location in violation of Rule 2-413.

Rule 4.4. Respect for Rights of Third Persons. The Court finds that the Respondent knowingly abused his authority, as an officer of court, to routinely attempt to do discovery that has no substantial purpose other than to embarrass, delay or burden the witnesses and/or opposing party. The Court finds that the Respondent, knowingly and intentionally sought medical records in violation of the HIPAA requirements and/or the Health-General Article by failing to properly serve medical providers with valid subpoenas and failing to send the required assurances that no objection to the subpoenas had been made.

Seeking psychiatric records contrary to court orders and seeking lifelong traffic histories would have no purpose other than to embarrass. Rule 5.3. Responsibilities Regarding Non-lawyer Assistants. In view of Respondent’s testimony in trial and at deposition that he takes complete responsibility for any and all product by his office, the Court is not convinced by clear ⁴⁷⁴ and convincing evidence that Respondent violated Rule 5.3(c).

Rule 8.1. Bar Admission and Disciplinary Matters. In view of extensive records and documents provided by Respondent and counsel, the Court is not convinced by clear and convincing evidence that Respondent violated Rule 8.1. Rule 8.4.

Misconduct. The Court, as discussed herein, having concluded that Respondent violated multiple Rules, concludes that Respondent has also committed misconduct in violation of Rule 8.4(a). See Att’y Griev. Comm’n v. Foltz, 411 Md. 359, 411 , 983 A.2d 434, 465 (2009) (internal citations omitted).

As discussed herein the Respondent’s ordinary and usual pattern of practice was laden with deceit and consistent misrepresentations to the courts, parties and witnesses of both fact and law in violation of Rule 8.4(c). Most assuredly, the Respondent’s conduct was prejudicial to the administration of justice in violation of Rule 8.4(d). The Respondent’s pattern of practice is to bend and break the rules to bully, harass and attempt to intimidate both parties and witnesses----The Respondent conducts discovery and pretrial depositions by bludgeoning his opponents and witnesses with unreasonable demands, frivolous motions and unnecessary acrimony. The effect of the Respondent’s conduct is clear: his opponents and witnesses are forced to spend time and money and expend emotional energy defending against his frivolous requests and demands, the court dockets are clogged and the ordinary and proper resolution of claims is delayed.

This is not a case of walking up to the line in the name of zealous representation. This is a case of consistent knowing and intentional violation of the Maryland Lawyers’ Rules of Professional Conduct. The Respondent’s argument that his actions are defensible in the name of “zealous representation” is rejected. Although zealousness is a standard of ⁴⁷⁵ proper representation, zealousness without the counterbalance of reasonableness amounts to obstreperousness and unfairness.

While the vigorous representation of client’s interests is laudable, the Court cannot condone the Respondent’s conduct which, without question, brings the profession into disrepute. Mitigation Judge Doory did find that Mixter had proven that during the relevant time period he had suffered from increased stress as a result of his mother’s death and his wife’s treatment for cancer, and that Mixter had modified his office procedures regarding his interactions with witnesses, but did not accept other offered mitigation: Care Issues Involving Respondent’s Wife and Mother From January through July of 2010, Respondent was attending to his mother during her fatal bout with cancer. In April, May and June of 2012, Respondent was quite involved in his wife’s diagnosis, treatment and convalescence from a brain tumor. Dr. Larry Carroll testifies that these situations increased the pressure Respondent was feeling and exacerbated Respondent’s competitive personality.

The Court accepts that this mitigation has been proven by a preponderance of the evidence. Respondent’s Health Problems In 2008 through 2009, Respondent was dealing with Atrial Fibrillation which is now primarily controlled by medication. In 2012 through 2013, Respondent was dealing with prostate cancer. The conditions each complicated Respondent’s work circumstances to the extent that he would be hampered from making appearances and meeting deadlines.

The Court accepts that this mitigation has been proven by a preponderance of the evidence. The Court cannot accept mitigation as to active decisions made during these periods. ⁴⁷⁶ Consultation with Larry Carroll, Ph.D. At the suggestion of his trial counsel, Respondent met with Dr. Carroll, a Clinical Psychologist, seven times beginning in late 2012. It is Dr. Carroll’s policy to take no notes and file no reports but he opines that Respondent does not have any mental health issues. While he finds Respondent to be normal, he does note that Respondent is ultra-competitive.

For the sessions he did have with Dr. Carroll, Respondent was engaged in what Dr. Carroll called Cognitive Behavioral Therapy. Respondent told Dr. Carroll that he has modified his office procedures to communicate better with opposing counsel and potential witnesses. To deal with Respondent’s ultra competitive personality, Dr. Carroll suggested the technique of “pausing” before responding to his initial instinct. The Court finds the results of Respondent’s limited contact with Dr. Carroll to be very minor and cannot accept this as mitigation proven by a preponderance of the evidence.

Modification of Office Procedures Respondent testified, and discussed with Dr. Carroll, that he has modified the procedure in his office to require additional calls and letters to witnesses and waiting well beyond thirty (80) days before reacting to failures to provide information. These changes seem minor and do not involve working with opposing counsel to solve problems; but they are an improvement. The Court will accept that this mitigation has been proven by a preponderance of the evidence. Limited Number of Cases and Minor Nature of Violations Respondent estimates that his firm has handled over thirty five hundred cases.

Between six and seven hundred cases would be involved in the time covered by this investigation. Twenty-two cases would represent approximately ⁴⁷⁷ three-percent of his firm’s workload. It is a minor but significant percentage. It is also argued that the infractions are each quite venial.

If the number of cases and the number of infractions within each case were substantially less, this argument would hold more weight. The Court cannot accept this as mitigation proven by a preponderance of the evidence. Court Imposed Deadlines Both the Respondent and his expert Mr. Fell testified about the increased pressure on attorneys involved in the discovery process generated by court imposed deadlines pursuant to the new case management policies. All attorneys are subject to this and the Maryland Rules still apply.

The court does not accept this as mitigation. Devotion of his Clients Respondent presents the testimony of five of his many clients as a sampling of the high regard with which he is held by his clients. There is no question he is well respected by those he represents. The question for this Court is how he is recognized by all of the parties in the system.

Review of the extensive documents submitted by Petitioner and Respondent disclose that he has been admonished, sanctioned or scolded by at least sixteen different judges during this period. The Court cannot accept the devotion of his clients as mitigation.

IV

Discussion “This Court has original and complete jurisdiction over attorney discipline proceedings in Maryland.” Attorney Grievance v. O’Leary, 433 Md. 2, 28 , 69 A.3d 1121, 1136 (2013), quoting Attorney Grievance v. Chapman, 430 Md. 238, 273 , 60 A.3d 25, 46 (2013). “[W]e accept the hearing judge’s findings of fact as prima facie correct unless shown to be clearly erroneous.” Attorney Grievance v. Fader, 431 Md. 395, 426 , 66 A.3d 18, 36 (2013), quoting Attorney Grievance v. Rand, ⁴⁷⁸ 429 Md. 674, 712 , 57 A.3d 976, 998 (2012). We conduct an independent, de novo review of the hearing judge’s conclusions of law, pursuant to Maryland Rule 16—759(b)(1). 44 Mixter noted over one hundred and fifty exceptions to Judge Doory’s findings, as well as an exception to each of Judge Doory’s conclusions of law. Bar Counsel noted no exceptions to Judge Doory’s findings and conclusions. A. Mixter’s Exceptions to Judge Doory’s Findings of Fact Mixter excepts to Judge Doory’s general finding that “the sixty-two (62) motions for relief described in the attached Appendix Two (2), incorporated by reference herein, filed by the Respondent and directed at non-party witnesses were frivolous.

The motions were frivolous because ... the subpoena was ineffective as of the date of service because it did not provide the witness the requisite 30 days to produce documents as required by Maryland Rule 2-412(e).” Mixter asserts that even though he had served subpoenas which provided less than thirty days for the recipient to produce documents, that this error was “harmless”. We disagree and overrule this exception, because Maryland Rule 2-412(c), which requires thirty days’ notice prior to a documents deposition, is written in mandatory nomenclature of “shall”. See Dove v. State, 415 Md. 727, 738 , 4 A.3d 976, 982 (2010). When the term “shall” is used in a Maryland Rule it “ ‘denotes an imperative obligation inconsistent with the exercise of discretion.’ ” Gaetano v. Calvert Cnty., 310 Md. 121, 124-25 , 527 A.2d 46, 47-48 (1987), quoting City of College Park v. Cotter, 309 Md. 573 , 588 n. 23, 525 A.2d 1059 , 1066 n. 23 (1987).

We disagree with Mixter. Mixter also asserts, within the same exception, that he could move to compel compliance with subpoenas for which he had ⁴⁷⁹ provided less than thirty days’ notice for the production of documents, because the motions had not been filed until after thirty days elapsed from service. Maryland Rule 2-412(c), again, requires thirty days’ notice in order to secure subpoena enforcement. That a motion to compel was filed beyond thirty days after service is, therefore, irrelevant, because the time for the party’s appearance, or for raising objections to the subpoena, 45 had already occurred, with less time than required by the Rule.

We, accordingly, overrule this exception. Mixter notes numerous exceptions based on the fact that Judge Doory did not find credible his testimony as well as that of some of his witnesses. We, however, generally, “defer to the credibility findings of the hearing judge.” Attorney Grievance v. Agbaje, 438 Md. 695 , 93 A.3d 262 (2014). “[T]he hearing judge is in the best position to evaluate the credibility of the witnesses and to decide which one to believe and, as we have said, to pick and choose which evidence to rely upon.” Attorney Grievance v. DiCicco, 369 Md. 662, 683-84 , 802 A.2d 1014, 1026 (2002), quoting Attorney Grievance v. Monfried, 368 Md. 373, 390 , 794 A.2d 92, 101 (2002). See also Attorney Grievance v. Sheridan, 357 Md. 1, 17 , 741 A.2d 1143, 1152 (1999) (stating that the hearing judge is “in the best position to assess first hand a witness’s credibility.”).

As we have stated, a hearing judge “is free to disregard the testimony of Respondent if the judge believed the evidence was not credible.” Monfried, 368 Md. at 390 , 794 A.2d at 101 . Mixter excepts to all of Judge Doory’s findings that he knowingly and intentionally engaged in misconduct. He initially argues that Judge Doory erred because there was no direct evidence to support that his impropriety was both knowing and intentional. We have said, however, that intent “may be inferred from circumstantial evidence”, (Attorney Grievance v. Jarosinski, 411 Md. 432, 452 , 983 A.2d 477, 489 (2009)), and that, even without an express disclosure of intent, ⁴⁸⁰ “the sum of the circumstantial evidence” can demonstrate the Respondent’s mental state.

Attorney Grievance v. Goodman, 426 Md. 115, 131 , 43 A.3d 988, 997 (2012). Mixter initially takes exception that Judge Doory did not find credible his testimony that he had, in fact, attempted to resolve discovery disputes by telephoning opposing parties to resolve issues before he filed motions to compel. We defer to Judge Doory’s credibility findings and also note that in Mixter’s twenty-two case files, introduced into evidence and comprising thirty-two volumes, he did not include any notation nor preserve any documentation in any file, with respect to any such telephone conversations or attempted resolution of discovery disputes. 46 We overrule this exception. Judge Doory found also that Mixter knowingly and intentionally misrepresented to various tribunals that he had engaged in good faith attempts to resolve discovery disputes as part of his Maryland Rule 2-431 certificates attached to the fifty-three motions listed in Appendix 6 and contained in Mixter’s files.

According to Judge Doory’s findings, Mixter had attached to every one of his certificates of good faith, as evidence of his attempts to resolve the discovery disputes, a copy of his cover letter accompanying the original subpoenas mandating the production of documents and depositions. For example, within Petitioner’s Exhibit 18, which is comprised of Mixter’s files from the Mixter litigation, was such a cover letter sent to Stephen Shechtel, 47 an attorney in Rockville, which stated: Enclosed please find a Notice of Deposition and Subpoena Duces Tecum, which is being served upon you via certified mail. If you would please forward copies of all documents requested by the date of the deposition it will not be ⁴⁸¹ necessary for you to testify or appear. Please note that we are not authorizing the use of a record copy service.

Additionally, we will not pay for any such services without written approval. (emphasis in original). Judge Doory found that the cover letters were not representative of good faith attempts to resolve discovery disputes, because not only were they sent to witnesses before any dispute actually could have existed, but excusing a witness’s presence if all documents are produced is not within the contemplation of the Maryland Rules for resolution of discovery disputes. The file reflects, moreover, that after Mr. Shechtel received the subpoena, he responded by letter objecting to it, asserting that: “the Subpoena was served not in accordance with Maryland Rules”; the documents sought were “outside of the Maryland Rules”; the documents deposition was scheduled “without the courtesy of an advance telephone call ... on a date and at a time that [Mr. Shechtel was] unavailable; the request was “far too broad”; and the documents demanded “may constitute attorney work product and accordingly are not discoverable.” Without responding to Mr. Shechtel’s letter, Mixter subsequently filed a Motion to Compel in which he asserted that Mr. Shechtel “did not comply with any of the terms of the subpoena”, attaching to it his original cover letter, and in which he failed to mention Mr. Shechtel’s letter or any documentation of true good faith efforts at conciliation of the dispute.

Ultimately, the Circuit Court quashed the subpoena, based upon the objections Mr. Shechtel had sent to Mixter, which Mr. Shechtel included with his subsequent Motion for Protective Order. Upon a review of the record that Judge Doory had before him, just as in the Mixter case and Mr. Shechtel’s interactions, for all the motions listed in Appendix 6, there was clear and convincing evidence from which the hearing judge could find that Mixter had knowingly and intentionally certified that he acted in good faith to resolve discovery disputes when, in fact, he had not. We, accordingly, ⁴⁸² overrule Mixter’s objections to Judge Doory’s findings listed in Appendix 6. Judge Doory also had before him, listed in Appendix 7, twelve motions authored by Mixter and contained in his files— six to compel, three for contempt, two for sanctions (one of which was, in the alternative, a motion to compel) and one for a protective order—in which Judge Doory found that Mixter had knowingly and intentionally omitted reference to letters that attorneys had sent to him attempting to conciliate the discovery disputes before he filed the motions to compel, for contempt, for sanctions and for a protective order.

Exhibit 18 includes an example chosen by Judge Doory to discuss, that being a Motion to Compel the production of documents from Steven A. Markey, III, from whom Mixter sought documents embodying any statements made by Mr. Markey to other attorneys about Mixter “at any time whatsoever.” 48 Mr. Markey responded to the subpoena by letter, included in Mixter’s files, stating, “I have done a diligent search of my computer records and I am unable to find any documents [responsive to your subpoena]”; Mr. Markey, though, referred to a practice of his that he would engage in if approached about Mixter: It is possible that one or more of [the Mixter defendants] were provided with a copy of the Order from [the Honorable] Susan Souder, a copy of the Opposition to Defendant’s Motion to Compel Independent Medical Examination and Request for Sanctions in the matter of Lewis v. Edison Schools, Inc., or a copy of the U.S. District Court Opinion in the matter of Higgenbotham [.Higginbotham ] v. KCS International, Inc.[ 49 ] I have enclosed copies of these documents ⁴⁸³ for your convenience. If and when I receive inquires about Mark T. Mixter, these are the documents I would possibly provide. Subsequently, Mixter filed a Motion to Compel the deposition and production of documents from Mr. Markey, in which he entirely omitted any reference to Mr. Markey’s letter; instead, the motion included only an identical version of the cover letter, discussed supra. 50 Upon a review of the record, there are no instances in which Mixter included either the substance of material correspondence from opposing counsel regarding a discovery dispute or the correspondences themselves in his discovery motions, just as with Mr. Markey. We overrule Mixter’s exception to Judge Doory’s finding in each instance listed in Appendix 7.

Judge Doory also found that that Mixter had intentionally and knowingly misrepresented to the Circuit Court for Anne Arundel County, in the Koontz litigation, that the custodian of records for Dr. Eckel had been served with a subpoena for a documents deposition, “on or about 21st day of April, 2010”. To his Motion to Compel documents from Dr. Eckel, Mixter had attached a United States Postal Service “Track & Confirm” receipt for the subpoena which revealed that it had not been delivered until April 27, 2010, six days after Mixter had claimed service had been accomplished and had actually been returned to Mixter’s office on April 29, 2010. The problems with service on Dr. Eckel, however, had not been revealed in the Motion filed by Mixter. We, accordingly, overrule Mixter’s exception to Judge Doory’s finding that he knowingly and ⁴⁸⁴ intentionally misrepresented to the Circuit Court judge in Koontz that Dr. Eckel had properly been served.

Judge Doory found, as well, that, in the Mixter litigation, Mixter had intentionally and knowingly attempted to enforce an unserved subpoena commanding the personal appearance of, and the production of documents from, the custodian of records for Dr. Michael Conte. Judge Doory’s finding was premised on Mixter’s files, which reflect not only that, on March 8, 2012, Mixter had mailed a documents subpoena to Dr. Conte, but that the subpoena had been returned to Mixter’s office and, on April 18, 2012, he had resent the subpoena to Dr. Conte by first-class mail, which our Rules do not contemplate as adequate service. On April 18, 2012, Mixter, however, filed a Motion to Compel in which he asserted that the subpoena had been served “on or about March 6, 2012”, but he must have known the subpoena had not been served by the very fact that he had resent it. We, accordingly, overrule Mixter’s exception to Judge Doory’s determination that he had intentionally and knowingly attempted to enforce an unserved subpoena on Dr. Conte in the Mixter litigation.

Judge Doory found that Mixter had knowingly and intentionally attempted to enforce twenty-four Maryland subpoenas to out-of-state witnesses, which are identified in Appendix 3, without having followed the protocols for issuing enforceable out-of-state subpoenas. Maryland Rule 2-413(a)(2) mandates that a nonparty may only be “required to attend a deposition outside of this State in accordance with the law of the place where the deposition is held.” Mixter, however, issued the twenty-four subpoenas, and attempted to enforce them, without having acted “in accordance with the law of the place” where the various out-of-state witness were located. Judge Doory specifically identified, in the Mixter files, an instance in which Mixter had intentionally misrepresented to a witness that he had complied with Maryland Rule 2-413(a)(2). Judge Doory observed that Mixter had mailed to TrialSmith, Inc., located in Austin, Texas, a notice of deposition, a Baltimore City subpoena for a documents deposition and an un ⁴⁸⁵ signed Commission to Take Foreign Deposition.

According to Judge Doory, the inclusion of an unexecuted commission was an intentional misrepresentation by Mixter to TrialSmith that he had complied with Section 20.002 of the Texas Civil Practice and Remedies Code. After a review of the record accompanying each subpoena listed in Appendix 3, in every instance, as with TrialSmith, Mixter had attempted to enforce subpoenas for documents depositions served on out-of-state fact-witnesses in which he had failed to follow the rubric for issuance of such deposition subpoenas. We, accordingly, overrule Mixter’s exception to Judge Doory’s finding that he had knowingly and intentionally attempted to enforce the subpoenas identified in Appendix 3. Judge Doory also found that Mixter had intentionally and knowingly misrepresented to non-party witnesses residing in other states that they could be compelled to appear and produce documents in Maryland.

Judge Doory found that Mixter knew that every one of the thirty-five subpoenas listed in Appendix 4 was directed at a witness outside of Maryland, but did not comport with the proper procedures for the issuance of subpoenas to non-party witnesses outside of Maryland. While Mixter knew an out-of-state witness could not be compelled to attend a deposition in Maryland, as discussed supra, the subpoenas, in emphasized print, stated “you are liable to body attachment and fine for failure to obey this subpoena.” 51 Mixter, in his cover letter included with the subpoenas, which we also have discussed supra, stated to the recipients that their attendance could be compelled by informing them that, “if [they] would please forward copies of all documents ... it will not be necessary for [them] to testify or appear”, thereby implying that the appearance of out-of-state witness could otherwise be compelled. 52 We overrule Mixter’s ⁴⁸⁶ exception to Judge Doory’s finding that he intentionally and knowingly misrepresented to non-party, out-of-state witnesses, in connection with each subpoena identified in Appendix 4, that their appearance could be compelled at a documents deposition in Maryland. Judge Doory, also, found that in seven subpoenas in Mixter’s files from five cases, Mixter had intentionally and knowingly misrepresented to non-party residents of Maryland that they could be compelled to appear and produce documents outside of their counties of residence or employment, 53 in contradiction to the mandate of Maryland Rule 2—413(a)(1). 54 As with the subpoenas directed to out-of-state witnesses, discussed supra, the subpoenas directed to in-state residents had contained the same highlighted language notifying the recipients that they could be subject to body attachment for non-appearance at the deposition and Mixter had included the same cover letters indicating that he would take action to compel the witnesses’ appearance. For example, Mixter’s files from the Mixter litigation contain a subpoena, served on the Maryland Association for Justice, a non-party with its principal office in Howard County, commanding the personal appearance of, and production of documents from, its representative at Mixter’s office in Baltimore City.

The Association objected to the subpoena on the grounds that, inter alia, it was unenforceable, because it violated Maryland Rule 2-413. Mixter, in response, however, ⁴⁸⁷ asserted that the Maryland Rule 2-413 violation “does not render the subpoena unenforceable.” Upon a review of the record pertinent to the other six subpoenas, Mixter had included the same subpoenas and cover letters which put the recipients on notice that their physical appearance could be compelled, so that we overrule Mixter’s exception to Judge Doory’s finding that Mixter had intentionally and knowingly misrepresented to non-party residents of Maryland that they could be compelled to appear and produce documents in violation of Maryland Rule 2—413(a)(1). Judge Doory found, as well, that Mixter had knowingly and intentionally misrepresented to Judge J. Frederick Motz of the United States District Court for the District of Maryland, during the Byme-Egan litigation, that the third-party defendant had admitted to a failure to timely respond to discovery requests. Mixter’s files from the Byme-Egan litigation, which had been admitted into evidence as Petitioner’s Exhibits 3 and 4, contain a Motion to Compel the third-party defendant’s answers to interrogatories and production of documents, filed on December 2, 2011.

The third-party defendant’s Response, filed on December 19, 2011, included within Mixter’s files, contained only three affirmations, none of which admitted to a failure to timely respond to Mixter’s discovery requests: 1. This case was removed to Federal Court by Empire after it filed a Third Party Complaint against Seay in State Court and she filed a counterclaim. 2. Seay avers that this court has no jurisdiction in this matter and she has filed a Motion to Remand to State Court which has yet to be ruled upon. 3. In any event, Seay intends to respond to Empire’s discovery requests within ten days.

In Mixter’s letter to Judge Motz the very next day Mixter asserted, however, that the third-party defendant had “admitted] to the plaintiffs failure to timely answer my client’s discovery requests”, which was not reflective of the state of affairs. We, accordingly, overrule the exception. ⁴⁸⁸ Judge Doory also found that Mixter had attempted to obtain the opposing parties’ health care records during the Byrne-Egan and Koontz litigations by knowingly and intentionally misrepresenting to the health care providers that no objection had been made to the disclosure of such records. Mixter’s files from Byme-Egan show that, on February 21, 2012, the third-party defendant filed a Motion for a Protective Order to “bar the inquiry into and the disclosure of the unrelated mental health history of Emily Seay” and that, on March 5, 2012, Mixter filed a response to the motion for a protective order. Mixter, despite having responded to the motion for a protective order as to Ms. Seay’s health care records, sent a letter to her health care providers that stated, “Emily Ann Seay ... has not objected to the disclosure of the requested medical records.” Accordingly, we overrule this exception.

In Koontz, Judge Doory also found that Mixter had attempted to obtain the plaintiffs medical records by knowingly and intentionally misrepresenting to the plaintiffs health care providers that no objections to such disclosure had been made. Mixter’s files from the Koontz litigation show that Mixter had issued subpoenas to nineteen of the plaintiffs healthcare providers on April 21, 2010, requesting the plaintiffs medical records and that, on May 5, 2010, the plaintiff filed an “Emergency Motion” for a protective order or to quash or limit those nineteen subpoenas. Sixteen days later, Mixter sent a letter to the health care service providers, a sample of which is contained in his files, wherein he disregarded the existence of the Emergency Motion and informed the providers that, “[the plaintiff] and her attorney have not objected to the disclosure of the requested medical records. Please forward the responsive records at your earliest convenience.” Mixter’s files support Judge Doory’s finding that Mixter had made intentional misrepresentations to the plaintiffs health care providers.

We overrule this exception. Judge Doory also found that Mixter had knowingly and intentionally misrepresented to Judge Deborah K. Chasanow of the United States District Court for the District of Maryland, in the Davis litigation, that the defendants had been ⁴⁸⁹ properly served with the complaint. Mixter’s records, contained in Petitioner’s Exhibit 7, include return receipts from the mailed complaints that were that were signed on March 12, 2010. The receipts, however, were not signed by the defendants, as Judge Doory observed and as Mixter himself testified at the hearing before Judge Doory.

Mixter, nonetheless, had included the return receipts as exhibits to affidavits he had executed under oath in which he affirmed to Judge Chasanow “that a complaint was duly served upon [the defendants] on or about March 12, 2010 by evidence of the signature on the return receipt attached to this affidavit”. The record supports the finding that Mixter had made an intentional misrepresentation to Judge Chasanow; we, therefore, overrule this exception. Judge Doory found that Mixter had knowingly and intentionally obstructed his opposition’s access to evidence in Pearson by sending a letter to his client’s physicians requesting that they not speak to opposing counsel, despite a court order authorizing such communication. Mixter’s files from the Pearson litigation, received into evidence as Petitioner’s Exhibit 21, include an Order from a Judge on the Circuit Court for Prince George’s County, issued May 18, 2012, permitting the parties to “engage in ex parte discussions with treating healthcare providers” and allowing “any third-party who is provided with a subpoena requesting the production of documents or commanding attendance at deposition or trial to disclose Protected Health Information in response to such request or subpoena.” Mixter’s files also contain a letter he had sent to one health care provider, dated just three days after the order, in which he told the physician, after acknowledging the Order, to “refuse to discuss Ms. Pearson’s treatment” with the opposition.

We overrule Mixter’s exception to Judge Doory’s finding that Mixter had intentionally attempted to prevent opposing counsel from speaking to his client’s physicians in Pearson. Judge Doory, thus, had clear and convincing evidence that had been contained within Mixter’s own files from which he could find that Mixter had acted knowingly and intentionally ⁴⁹⁰ in making the various misrepresentations to courts, as well as to witnesses. Mixter also notes exceptions to Judge Doory’s findings that various Maryland subpoenas had been improperly served on out-of-state witnesses, because, Mixter argues, Bar Counsel had not presented proof that the various deponents had not consented to a waiver of the Rules. As we have discussed, however, the Maryland Rules and statutes of the various other states in issue require additional protocols for an out-of-state witness to be compelled to attend a deposition.

For example, Mixter asserts that, regarding the Alemu litigation, “Petitioner also failed to produce any evidence that Maharishi University, while located [in Iowa], is not subject to Maryland’s subpoena powers for other reasons or that an agreement had been entered into between the parties regarding requests for documents from out-of-state witnesses.” The University is located in Iowa and only would have been subject to the authority of the Maryland courts, once Mixter complied with the strictures of Maryland Rule 2-413(a)(2), which would have required adherence to Section 622.84 of the Iowa Code, discussed supra. There was no documentation in Mixter’s files that he had attempted to properly serve a subpoena on Maharishi University according to Iowa law or of an agreement waiving service, so that we overrule this exception. We overrule, as well, each of Mixter’s similar exceptions premised on the assertion that Bar Counsel had failed to prove that the opposing party in each of the ten cases had not waived the Maryland Rules, because, upon a review of the record, there are no such documents regarding waiver included in any of the relevant files that were maintained by Mixter. Mixter also excepts to six specific findings that Maryland subpoenas had contained misrepresentations to six non-party, out-of-state recipients, that their attendance could be compelled in Maryland. 55 Mixter’s exceptions are premised on the ⁴⁹¹ theory that the six witnesses became subject to jurisdiction in Maryland by allowing their designation as witnesses in Maryland courts.

We disagree, because Maryland Rule 2—413(a)(2) is explicit that a non-party witness outside of Maryland only may be required to attend a deposition in accordance with the laws of the State where the witness resides. By failing to follow the protocols of the various states in which the witnesses resided, Mixter issued unenforceable subpoenas and the recipients could not be compelled to appear in Maryland. Accordingly, we overrule these exceptions. Mixter also excepts that Bar Counsel could not have proven that ten subpoenas, from five cases, had not been properly served, because no proof of service was presented to Judge Doory.

For example, Mixter argued that “Respondent excepts to the court’s finding that the [Motion to Compel custodians of records of Blake Construction and Cunningham Contracting in Koontz ] was frivolous as no evidence was presented regarding how or when the witness was served.” Proper service of a subpoena by mail, in compliance with Maryland Rule 2-121(a)(3), discussed supra, necessarily would generate a return receipt as proof of proper service signed by the party to be served or his or her authorized agent; Maryland Rule 2-126(a)(3) manifests that an original return receipt so signed is required for proof of service by mail. There were no return receipts evidencing proper service signed for by a proper party within any of the ⁴⁹² five files at issue. We, accordingly, overrule Mixter’s exception that Bar Counsel could not prove there had not been proper service due to a lack of proof of service. Mixter also excepts to Judge Doory’s findings that various motions to compel the production of records from health care providers were frivolous, because valid subpoenas had been served upon the providers.

Judge Doory found, however, that in six instances from four cases Mixter had not complied with additional steps for obtaining health care records provided by Section 4-306 of the Health-General Article of the Maryland Code, discussed supra. The record reflects that Mixter had not complied with Section 4-306, because he had either failed to send a 30-day assurance letter altogether to the medical provider, or he had mailed the letter less than one week before he certified service of a motion to compel the records, thereby providing insufficient time for the production of documents. We, therefore, overrule this exception. Mixter also excepts to Judge Doory’s finding that, “Respondent had a pattern and practice of knowingly and intentionally noting depositions in the wrong venue”.

According to Mixter, Judge Doory erred because every subpoena for the production of documents in his files had included a cover letter stating that the witness would not have had to appear so long as the documents were produced. Judge Doory found, however, that every subpoena required personal appearance of the witness, because in every subpoena, in those same files, Mixter always had selected the option on the subpoena form that required the witnesses to “personally appear and produce documents or objects”, rather than checking the option which provided, “produce documents and or objects only”. 56 In so doing, Judge Doory found that Mixter had misrepresented to the witnesses that they could be compelled to appear in improper venues. Upon a review of the record, there are no instances ⁴⁹³ in which Mixter issued a subpoena requesting only the production of documents, instead, he had sought the personal appearance of the recipient of his subpoenas. We, accordingly, overrule this exception.

Mixter also excepts to Judge Doory’s finding that his “Motion to Hold in Contempt Various Custodians of Records” for absence at trial, filed in Alemu, was frivolous, because, according to Judge Doory, Mixter sought to hold non-party witnesses in contempt for their absence at a trial that had not taken place and that Mixter had moved to continue. Mixter asserts that Judge Doory erred in finding that it was he who had filed the motion to continue the trial date. We sustain this exception, because the docket sheet in Alemu reflects that the motion for a continuance had been filed by one other than Mixter. Whether Mixter had filed the motion to continue, however, was not dispositive with regard to Judge Doory’s finding that the motion to hold the non-party witnesses in contempt was frivolous, because “there was no basis in fact or law to file a motion to hold non-party witnesses in contempt of court for failure to appear at a trial that did not take place.” Mixter’s file containing the docket sheet from Alemu reflects that the Circuit Court Judge had granted a postponement, on June 17, 2010, while Mixter had filed his motion for contempt, within the subsequent month, on July 8, 2010.

We, accordingly, overrule Mixter’s exception to Judge Doory’s finding that the “Motion to Hold in Contempt various custodians of records” was frivolous. 57 ⁴⁹⁴ Mixter also excepts to Judge Doory’s finding that the Motion to Compel the Custodian of Records of Maryland Dental Board to produce documents, filed in the Canby litigation on November 2, 2011, was frivolous. As Mixter recognized in his exception, he sent notice of the deposition on October 20, 2011 for a deposition to be held on October 31, 2011, which did not comport with the thirty-day requirement of the Maryland Rules. 58 We overrule this exception. Mixter excepts to Judge Doory’s finding that the Motion to Compel the custodian of records of CSC-Layers to produce documents in Dunston was frivolous for being untimely, because, Mixter argues, Judge Doory could not rely upon the Circuit Court’s order denying the Motion to Compel to conclude that the motion itself, also included in the record, was frivolous. In the Order, which was included with Mixter’s files from Dunston in Petitioner’s Exhibit 8, Judge Audrey Carrion of the Circuit Court for Baltimore City denied the Motion to Compel as untimely, because it was filed “in violation of the discovery deadline defined in the Scheduling Order.” This exception is overruled.

Mixter notes an exception to Judge Doory’s finding that the Motion to Compel Custodian of Records of GEICO to produce documents in Dunston was frivolous, on the basis that the Motion to Compel was not part of the record before Judge Doory. Judge Doory could not have found that the motion to compel was frivolous, because that motion was not included in the Dunston files. We sustain this exception. Judge Doory found, as well, that the Motion to Hold in Contempt the records custodian of GEICO was a frivolous ⁴⁹⁵ motion directed at a non-party.

Mixter also excepts to this finding, on the basis that the Motion to Hold in Contempt was proper because GEICO had not complied with the order granting the previous motion to compel. Mixter’s records from Dunston reveal, however, that the Motion to Hold in Contempt was untimely, because, according to an Order from the Circuit Court for Baltimore City denying the Motion to Hold in Contempt, “The Motion was filed in violation of the discovery deadline defined in the Scheduling Order.” We, accordingly, overrule this exception. Mixter next excepts to Judge Doory’s finding that the Motion to Compel the custodian of records of Washington Hospital Center, located in Washington, D.C., to produce documents in the Fitzgerald litigation was frivolous, because, he asserts, he had properly complied with the District’s rules for service, as evidenced by a Washington D.C. subpoena in his files from the Fitzgerald litigation. As we explained supra, however, in 2008, when the subpoena was issued, the District of Columbia required that a commission and notice be issued by the Circuit Court for Prince George’s County.

See D.C.Code § 14-103 (2008). We overrule this exception. Mixter also notes an exception to Judge Doory’s finding that the Motion to Compel production of documents from the Maryland Association of Justice filed in Mixter was frivolous. Mixter asserts that “the Maryland Association for Justice concedes that it was served a subpoena from Respondent”.

Service was not the issue, however, because the Association objected to enforcement of the subpoena on the grounds that the deposition was mandated to be taken in the wrong county, in Mixter’s office in Baltimore City. 59 The Association, ulti ⁴⁹⁶ mately, had secured a protective order. We overrule this exception. Mixter excepts to Judge Doory’s finding that the Motion to Compel the production of documents from the custodian of records for Dr. Rosenbaum contained a misrepresentation to the Circuit Court for Prince George’s County in the Byme-Egan litigation. Mixter affirmed to the Circuit Court in the Motion to Compel that the witness was served “on or about August 25, 2011”.

Judge Doory observed, however, that “[t]he green card is clearly from something else as it was dated August 16, 2011, more than a week before the relevant subpoena was issued.” Mixter, however, urges that “while it appears that the green card is dated ‘8/16/11’ it is more likely that the green card is actually dated ‘8/26/11’ ”. A review of the green card in Mixter’s files that had been received into evidence reflects the date as “8/16/11”. We, therefore, overrule this exception. Mixter also excepts to Judge Doory’s finding that he misrepresented to the Circuit Court for Charles County in a Motion to Compel in Keener that an enforceable subpoena for the production of documents had been served upon the Civista Medical Center.

Mixter, in his exception, asserts that the subpoena was enforceable, because it was served on Civista, located in Charles County, on September 21, 2009, and he sought production of documents at his office in Baltimore City on October 19, 2009. Furthermore, Mixter excepts on the basis that he had sent thirty-day assurance letters to Civista, in compliance with Section 4-306 of the Health-General Article of the Maryland Code, on October 22, 2009. The subpoena directed at Civista, however, was unenforceable, because it sought the production of documents from a non-party witness in the wrong jurisdiction, as mandated by Maryland Rule 2-413, discussed supra. Furthermore, under Maryland Rule 2-412(c), Civista had thirty days within which to produce documents, but the subpoena for the production of documents called for fewer days.

Under Section 4-306 of the Health-General Article of the Maryland Code, finally, Civista ⁴⁹⁷ could not have produced the documents on October 19, before it had received the 30-day assurance letters on October 22. We, therefore, overrule Mixter’s exception. Mixter notes an exception to Judge Doory’s finding that the Motion to Compel the production of medical records from the United States Department of Health and Human Services in Fitzgerald was frivolous, because the Department had been properly served at its Maryland office. Judge Doory’s finding that the Motion to Compel was frivolous, however, was based on the fact that Mixter had misrepresented to the Circuit Court for Prince George’s County that he had complied with Maryland Rule 2-431, discussed supra.

Mixter in fact, however, had not engaged in good faith efforts to resolve the dispute, and he had omitted from the motion relevant correspondence from the Department, such as letters he received notifying him that he was required to first obtain consent from Ms. Fitzgerald for the release of the requested documents. We accordingly overrule his exception. Mixter excepts to Judge Doory’s finding that, in Koontz, the Motion to Compel the production of documents from the custodian of employment records for the United States Internal Revenue Service was frivolous, because he had properly served an enforceable subpoena on the Internal Revenue Service in Annapolis. Judge Doory had found, however, that the Motion to Compel was frivolous, because there had been no proof of service of the subpoena, which is supported by a review of Mixter’s files in Koontz.

We overrule this exception. Mixter also excepts to Judge Doory’s finding that the Motion to Compel supplemental answers to interrogatories from the plaintiff, filed in the Circuit Court for Prince George’s County in Byme-Egan, was a frivolous motion, because there had been no good faith attempts at resolution of the discovery dispute. We sustain this exception, because the record contains a copy of the opposing party’s Answer to Motion to Compel in which they admit to having submitted ⁴⁹⁸ incomplete answers to interrogatories. 60 Mixter excepts as well to Judge Doory’s finding as frivolous the Motion in Limine to preclude Ms. Emily Seay from testifying as to her alleged emotional distress in the Byme-Egtm litigation. Mixter argues that the Motion in Limine was proper “as it sought to preclude the Third-Party Defendant from introducing evidence of mental or psychological damages after a protective order had been entered precluding Respondent from obtaining medical records relating to said damages.” Judge Doory’s finding was based on the fact that Ms. Seay stipulated that, “[she] is making no claim of psychiatric injuries as a result of this accident.” 61 As a result, Mixter’s Motion in Limine was frivolous, and we overrule the exception.

Mixter also notes an exception to Judge Doory’s finding that the Motion for Contempt filed in Canby to preclude Douglas Barnes from testifying and for sanctions was frivolous, because, he argues, “[t]his motion was directed at an expert witness for Defendant. Therefore, Respondent excepts to the court’s use of this motion to support its claim that Respondent filed frivolous motions directed at opposing parties.” Mixter also excepts, with regards to Judge Doory’s use of the Motion for Contempt to preclude Dr. Barnes, “to the trial court’s finding that the filing of a Motion [for Contempt] 62 against Dr. Barnes was a material misrepresentation to the Court.” Judge Doory, however, had only made two findings with regards to the Motion for Contempt to preclude Dr. Barnes: that the motion contained a false certification of good faith efforts at resolution of a discovery dispute, (see Appendix 6 (“Vol. 6, tab 31”)), and that the motion exemplified Mixter’s ⁴⁹⁹ use of motions for contempt in order to “harass[ ] and intimidat[e] opposing parties and expert witnesses by threatening an order of contempt in an attempt to force the expert to appear at a deposition on terms, often unreasonable, set by the Respondent or be excluded from testifying at trial.” With respect to Dr. Barnes specifically, Judge Doory found: Douglas Barnes, D.D.S. On July 21, 2011, the Respondent filed Plaintiffs Motion for Contempt and to Preclude Douglas Barnes, D.D.S., from Testifying as a Witness on Behalf of the Defendant and for Sanctions in Canby. In the motion, the Respondent did not even allege that a subpoena was issued or served. Nonetheless, he requested the court hold Dr. Barnes in contempt for failing to voluntarily change the start time of the second day of his deposition from 10 a.m. to 9 a.m. to accommodate the Respondent’s schedule.

On August 3, 2011, the Circuit Court for Anne Arundel County denied the motion. (internal record citations omitted). Mixter’s files from Canby do not show any subpoena related to the Motion for Contempt and the exhibits included with the Defendant’s Answer to Plaintiffs Motion for Contempt reveals the truth, that Mixter had filed the Motion for Contempt in an attempt to force Dr. Barnes’s deposition to move forward on Mixter’s own terms. 63 We, accordingly, overrule Mixter’s exception. ⁵⁰⁰ Mixter excepts to Judge Doory’s finding that the Motion to Compel answers to interrogatories and the production of documents from the opposition in the Greenstein litigation was frivolous, because Judge Doory had improperly relied upon “an order entered by Judge Fader in reference to Respondent’s motion to compel”. The Fader Order, contained in Mixter’s files from Greenstein received into evidence as Petitioner’s Exhibit 14, in emphasized print, denied the Motion to Compel because, “There is no satisfactory certificate of good faith efforts to resolve the discovery dispute as required by the Maryland Rules.” We, accordingly, overrule this exception. ⁵⁰¹ Mixter also notes an exception to Judge Doory’s finding that the Motion to Dismiss and/or for Sanctions for Plaintiffs Complete Failure to Provide Discovery in the Koontz litigation was a frivolous motion directed at the opposing party.

Judge Doory found that Mixter had not acted in good faith by creating the discovery dispute, because Mixter had made unreasonable demands of his opposition, attempted to enforce those demands without any good faith effort at conciliation and, further, that Mixter had not presented evidence that the opposition refused to agree to his demands: The Respondent propounded discovery on the Plaintiffs, the discovery requested sensitive medical and financial information. The Plaintiffs asked the Respondent to enter into a confidentiality agreement which would not in any way preclude his receipt of discoverable information but rather limit the disclosure or redisclosure of sensitive information. The Respondent refused to enter into a confidentiality agreement and the Plaintiffs filed a Motion for Protective order on August 11, 2009. On August 25, 2009, the Respondent filed a motion to compel discovery.

By Order entered September 18, 2009, the court denied the Respondent’s motion to compel and ordered that the Plaintiffs “shall provide the requested discovery upon execution of an appropriate protective order to maintain confidentiality of medical and financial