Attorney Grievance Commission v. Smith

¹¹⁰ DALE R. CATHELL, Judge (Retired, Specially Assigned). On August 20, 2007, the Attorney Grievance Commission of Maryland, petitioner, by Melvin Hirshman, Bar Counsel, and Dolores O. Ridgell, Assistant Bar Counsel, filed a petition for disciplinary action 1 against Patrick J. Smith, respondent, for multiple violations of the Maryland Rules of Professional Conduct (MRPC). The petition alleged that respondent, based upon his actions related to his representation of Joshua Teague, had violated MRPC 3.4 and 8.4(a)-(d). 2 Pursuant to Md. Rule 16-752(a) this Court assigned the matter to Judge Ronald B. Rubin of the Circuit Court for Montgomery County to conduct a hearing and to make findings of fact and conclusions of law. On January 3, 2008, an evidentiary hearing was held before the hearing judge.

On January 30, 2008, Judge Ronald Rubin of the Circuit Court for Montgomery County entered his Memorandum Opinion in which he found that the above violations of the MRPC had occurred and the fact that Smith’s ¹¹¹ criminal convictions 3 were reversed did not preclude these violations. The record was transferred from the hearing judge to this Court for oral argument. Pursuant to Md. Rule 16—758(b), respondent filed with this Court exceptions and recommendations to the hearing judge’s findings of fact and conclusions of law. Facts Respondent was admitted to the Bar of Maryland in 1979 and maintains his practice of law as a sole practitioner in his office located in Rockville, Maryland.

He was admitted to the Bar of the District of Columbia in 1979 and to the Bar of Georgia in 1978, in which state his status currently is inactive. He is also a member of the bars of the federal courts in Maryland and the District of Columbia. Judge Rubin’s findings and conclusions are, in part, as follows: “Findings of Fact 1. Patrick Joseph Smith (‘Smith’) was born on March 13, 1948[,] in Lawrence, Massachusetts.

He is the 5th of 15 children. 2. Smith is married and is the father of two children. Mrs. Smith is a long-standing employee of a federal law ¹¹² enforcement agency. One child is an attorney practicing in New York City.

The other child is in graduate school. 3. Smith received his undergraduate degree in 1970 from Merrimack College, North Andover, Massachusetts!;,] and his juris doctorate in 1978 from the Potomac School of Law, Washington, D.C. 5. From March 1986 to the present.... His practice is concentrated in the areas of personal injury and criminal defense.

Previously, he worked with a number of leading members of the bar.... 6. Smith has represented defendants in over 2,000 criminal matters and has dealt honorably with state and federal prosecutors and judges. Apart from the instant matter, Smith has not been the subject of any filed complaints or attorney grievance proceedings. 7. In addition to his legal practice, Smith has devoted substantial time and energy to public service.

From May 1990 through June 1991, Smith was Special Counsel to the United States Sentencing Commission and was instrumental in developing alternatives to federal imprisonment. In 1992, Smith received a Citation from the Governor of Maryland for his work in Law in the Public Schools. In 1996, Smith received a Citation from the Governor of Maryland for his work on the Task Force on Sentencing and Sentencing Alternatives. 8. From 1992 through 1998, Smith served on the Executive Advisory Board of the Vietnam Veterans Institute, which provides health care services to wounded war veterans. 9.

Smith has been active in the Bar Association of Montgomery County, Maryland. From 1989 through 1990, Smith was Chair of the Mentor Program for New Practitioners. In 1992, he received the Pro Bono Service Award. From 1998 to the present, Smith has been a member of the Victims Rights Foundation.

Smith also has been instrumental in developing public television programs on law in Montgomery County and, in 1990, received a Certificate ¹¹³ from the Maryland State Bar Association in Citizenship and Law-Related Education for his work with Maryland public schools. 10. Smith has received recognition from numerous civil and public service programs, including his work on public housing for elderly and disabled residents, business development in the City of Rockville and fire safety. 11. Smith has an exemplary reputation in the legal and professional community for honesty, veracity, and good character.... 12. On October 3, 2003, the Montgomery County Police arrested Joshua Teague (‘Teague’) for allegedly assaulting Andrew Simpson after a DC 101 radio station event in ‘Shantytown,’ located in Silver Spring, Maryland.

According to the police report, the alleged assault was witnessed by Officer J. Gloss and Jeremie Simpson, a cousin of Andrew Simpson. 13. Smith was retained by Teague on December 11, 2003. Smith had no prior relationship of any kind with Teague. Smith appeared with Teague at arraignment on December 12, 2003.

Teague told Smith that he was innocent and had not assaulted Andrew Simpson. Throughout the time Smith represented Teague, Teague maintained his innocence and refused to plead guilty to any charges arising out of the alleged assault on Andrew Simpson. 14. Smith received discovery from the Office of the State’s Attorney on December 17, 2003. As noted above, the police report listed Officer Gloss and Jeremie Simpson as eyewitnesses to the alleged assault on Andrew Simpson. 15.

Smith learned from Teague in mid-December 2003 that an individual named Ken Kelly had been videotaping the events at Shantytown on the night in question. According to Teague, the video taken by Mr. Kelly showed an unprovoked assault by either Andrew or Jeremie Simpson on an individual named Gus Gamino. Smith asked Teague to secure a copy of the videotape from Mr. Kelly. ¹¹⁴ 16. Teague obtained a copy of the videotape from Mr. Kelly and gave it to Smith.

After viewing the videotape, which showed an assault on Gamino, Smith told Teague to attempt to have Gamino file assault charges against Andrew Simpson. Teague later assured Smith that Gamino would seek criminal charges. No later than the week before Teague’s trial, scheduled for February 18, 2004, Teague told Smith: ‘that 100 percent that it would be done, so I never told him [Smith] that it wasn’t done.’ Although Smith believed Teague, Smith did not verify the information he learned from Teague with respect to Gamino pressing criminal charges against Andrew Simpson. 17. Smith contacted the Assistant State’s Attorney assigned to the Teague prosecution to advise him of the existence of the tape.

The prosecutor agreed to meet with Smith and Teague to view the videotape. The prosecutor also agreed to have Office Gloss present at the meeting. 18. At the February 12, 2004 meeting with the prosecutor (which Officer Gloss did not attend) Smith, Teague, and the prosecutor watched the tape of the assault on Gamino. The prosecutor agreed that Smith could use the videotape at Teague’s trial, that he would stipulate to its admissibility and asked Smith for a copy.

Smith had the videotape copied at a professional facility and personally delivered it to the Office of the State’s Attorney on the morning of February 13, 2004. 19. Shortly after delivering the videotape, Smith received a telephone call from the prosecutor, who accused Smith of tampering with the videotape and withdrew his agreement as to the videotape’s admissibility. 20. The Court has carefully viewed the videotape of the assault on Gamino. The Court has also carefully considered the testimony of Smith and the prosecutor.

The Court finds, based on the credible evidence of record, that the prosecutor in fact accused Smith on February 13, 2004 of altering the videotape and that the prosecutor, when he leveled this charge, had no factual basis whatsoever for contending that the videotape had been altered by Smith or ¹¹⁵ anyone else. Smith was deeply angered and upset by the prosecutor’s charge that he altered the videotape. 21. The prosecutor called Smith at 11:00 a.m. on February 17, 2004 to advise Smith he was seeking an emergency hearing before the Administrative Judge with respect to his contention Smith had altered the videotape. The prosecutor also told Smith that he was taking this matter to Bar Counsel. 22.

On February 17, 2004, at 2:17 p.m., Smith spoke with Teague. During this call, Smith asked Teague if Gamino had filed charges against Andrew Simpson. Teague told Smith that Gamino had in fact gone to the Commissioner. 23. On February 17, 2004, at 2:40 p.m., Smith, acting on the information he had received from Teague, attempted to call Andrew Simpson to advise him that assault charges had been leveled against him by Gamino.

Smith’s intent was to cause Andrew Simpson to assert his Fifth Amendment privilege when he appeared to testify at Teague’s trial. 24. When Smith looked at the police report, he mistook Jeremie Simpson as the alleged victim of the assault by Teague. Smith compounded this error when he dialed the telephone number for Jeremie Simpson that was listed near his name on the first page of [the] police report. The call was answered by voice mail at the home of Simpson’s parents.

Smith made a split-second decision and left the following message on the voice mail recording: ‘Yeah, this is Sergeant Graham with the Montgomery County Police, Seven Locks Station, trying to reach Jeremie Simpson because we have a warrant for his arrest for assault in the first degree committed on October third. Please give us a call ... to arrange a surrender. Thank you.’ 25. Smith intentionally misrepresented his identity.

He did so because he knew that the recipient of the message likely would ignore it if Smith used his true name. Smith wanted the recipient to call the police department number Smith left in the message to confirm the existence of the warrant ‘so that when he came to court the next day he’s under charges.’ Smith used Sgt. Graham’s name because ¹¹⁶ ‘he is the one who is behind the desk window almost every day of the week over there at Seven Locks where you surrender.... ’ 26. Smith made no effort to disguise his voice, which has a distinctive New England accent.

Smith provided a telephone number Smith knew had been assigned to the Montgomery County Police Department. Smith wanted Simpson to call the Montgomery County Police to confirm that charges had been lodged against Simpson. 27. When he received the voice mail message, Jeremie Simpson called the prosecutor, who advised that there was no warrant for his arrest. Jeremie Simpson appeared for Teague’s trial on February 18, 2004. 28.

Jeremie Simpson’s father also attempted to call the number Smith ha[d] left in the message. The number did not ‘go through’ so his father called the general Seven Locks number and left a message for Sgt. Graham. 29. On February 18, 2004, Smith and the prosecutor appeared before the Administrative Judge.

The prosecutor told the Administrative Judge about the allegedly altered videotape and the voice mail message left by Smith. Teague’s case was continued until April 26, 2004. 30. Smith met with the prosecutor shortly after the hearing before the Administrative Judge. The prosecutor advised Smith to ‘get a lawyer.’ Smith was arrested on February 19, 2004. 31.

For reasons not entirely clear, Smith’s criminal trial did not commence until April 26, 2005, which was 425 days after his arrest. After a bench trial, Smith was convicted of impersonating a police officer and intimidating a witness. Smith was acquitted of obstructing justice. 32. In an unreported opinion, Smith’s convictions were reversed by the Court of Special Appeals on the ground that his Sixth Amendment right to a speedy trial had been violated.

Smith v. State, No. 1437, September Term, 2005 (May 4, 2007). The State did not seek review in the Court of Appeals by way of a petition of certiorari. Thereafter, ¹¹⁷ the State’s Attorney terminated the criminal action against Smith by way of a nolle prosequi. Maryland Rule 4-247. 33.

Smith testified at the hearing before this Court, credibly, that he is genuinely remorseful for his actions. The Court finds that Smith appreciates the gravity of his improper conduct. 34. Smith has committed no ethical violations since February 17, 2004. The Court finds that Smith is highly unlikely to violate his ethical obligations in the future. 35.

Smith’s conduct in contacting Simpson was motivated, in part, by his anger at the prosecutor’s allegation that Smith had tampered with the videotape. It also was motivated, in part, by his desire to represent his client, Teague, who steadfastly maintained his innocence, and Smith’s honest belief that the prosecutor was acting unreasonably in his charging decisions. 36. Smith was not motivated by greed or a desire simply to win at any cost. Smith honestly believed, albeit incorrectly, that a warrant had been issued in connection with the assault on Gamino.

Smith did not intend, subjectively, to dissuade Simpson from appearing for Teague’s trial, although he appreciates that, objectively, his conduct likely could have caused that result.” 4 ¹¹⁸ “Conclusions of Law 1. Smith did not intentionally misrepresent to Simpson that a warrant had been issued for Simpson’s arrest. Although the statement was false, Smith acted under the mistaken (albeit woefully misguided) belief that Gamino ha[d] gone to the Commissioner, pressed charges, and that an arrest warrant for Simpson had been issued. Smith would not have made the telephone call had he not honestly believed the warrant had been issued.

See Attorney Grievance Comm[’n] v. Jaseb, 364 Md. 464, 476-77 , [ 773 A.2d 516 ] (2001). Smith did intend that Simpson be unavailable tq the State by reason of an invocation of Simpson’s Fifth Amendment privilege against compelled self-incrimination. Smith did not intend to cause Simpson to fail to appear at Teague’s trial. Smith’s conduct did not cause Simpson to be unavailable, either by failing to appear or by invoking his Fifth Amendment rights. 5 Smith’s conduct in this regard did not actually interfere with the administration of justice, the operation of the [Office of the State’s Attorney], or actually obstruct the State’s access to evidence.

Hence, the foregoing conduct, standing alone, did not violate MRPC 8.4(a)-(d). See Attorney Grievance Comm[’n] v. Kalil, [402] Md. [358], [ ], 936 A.2d 854 ([ ]2007). Nor did it violate MRPC 3.4. 6 2. Smith, however, did deliberately and intentionally misrepresent his identity to Simpson when he left the voicemail message.

His representation that he was Sgt. Graham was ¹¹⁹ false and Smith knew it at the time of the call. Attorney Grievance Comm[’n] v. Siskind, 401 Md. 41, 67-70 [, 930 A.2d 328, 343-45 ] (2007). As Judge Harrell aptly noted in Siskind , ‘words spoken by an attorney who knows they were untrue involves an inherent intent to deceive.’ Id. at 70 [, 930 A.2d at 345 ].

Hence, Smith’s conduct in falsely representing himself as a police officer violated MRPC 8.4(a), (c) and (d). Attorney Grievance Comm[’n] v. Harris, [403] Md. [142], [ 939 A.2d 732 ] [ ]([ ]2008)]; Attorney Grievance Comm[’n] v. Hekyong Pak, 400 Md. 567, 606-08 [, 929 A.2d 546, 569-70 ] (2007); Attorney Grievance Comm[’n] v. Sweitzer, 395 Md. 586, 594 [, 911 A.2d 440, 445 ] (2006); Attorney Grievance Comm[’n] v. White, 354 Md. 346, 363-64 [, 731 A.2d 447, 456-57 ] (1999). Cf. Attorney Grievance Comm[’n] v. Floyd, 400 Md. 236, 251-54 [, 929 A.2d 61, 69-71 ] (2007)[,] (intentional concealment of a material fact may violate MRPC Rule 8.4(c) if there is an intent to mislead). 3.

With respect to MRPC 8.4(b), the Court concludes that Smith committed a criminal act that reflects adversely on his fitness as a lawyer. The ‘something more’ tying the criminal act to fitness to practice law that was missing in Attorney Grievance Comm[’n] v. Post, 350 Md. 85 , 95—98[, 710 A.2d 935, 939-41 ] (1998), is satisfied in this case because of the false representation by Smith to a State’s trial witness in a criminal prosecution that he was a police officer. [Md.Code (2003),] § 3-502 of the Public Safety Article (‘A person may not, with fraudulent design ... falsely represent that the person is a police officer.’); [Md. Code (2002),] § 9-305 of the Criminal Law Article (‘A person may not, by ... corrupt means, to try to influence ... [ ] a witness.’). See Attorney Grievance Comm[’n] v. White, 354 Md. at 362-63 [, 731 A.2d at 456-57 ]. Cf.

Attorney Grievance Comm[’n] v. Mininsohn, 380 Md. 536, 566-68 [, 846 A.2d 353, 371-72 ] (2004) (distinguishing Post). The fact that Smith’s criminal convictions were reversed does not preclude finding a violation of MRPC 8.4(b), or any other applicable provisions of the MRPC. Attorney Griev ¹²⁰ ance Comm[’n] v. Garland, 345 Md. 383, 394-95 [, 692 A.2d 465, 470-71 ] (1997).” “Mitigation “The Court finds that Smith has proven the following mitigating factors by a preponderance of the credible evidence. See Attorney Grievance Comm[’n] v. Lawson, 401 Md. 536, 585-86 [, 933 A.2d 842, 870 ] (2007); Attorney Grievance Comm[’n] v. Floyd, 400 Md. 236, 258-59 [, 929 A.2d 61, 73-74 ] (2007); Sweitzer, 395 Md. at 598-99 , 911 A.2d at 447-48 ; Attorney Grievance Comm[’n] v. Guida, 391 Md. 33, 55-56 [, 891 A.2d 1085, 1098-99 ] (2006); Attorney Grievance Comm[’n] v. Glenn, 341 Md. 448 , 488—89[, 671 A.2d 463, 482-83 ] (1996): 1.

Smith has no prior disciplinary record. 2. Smith and his counsel cooperated fully and completely with Bar Counsel and this Court. 3. Smith is genuinely remorseful and appreciates both the wrongful nature of his conduct as well as the gravity. 4. Smith did not seek or obtain any personal benefit by reason of the misconduct.

His motive, albeit misguided, was to serve the interests of his client, whom he genuinely believed was not receiving fair treatment. 5. Smith enjoys an excellent reputation in the legal community for honesty, integrity, professional competence, reliability, and client satisfaction. 6. The misconduct was of extremely short duration and did not result in any actual harm to the administration of justice. There is no credible evidence of risk to the public in allowing Smith to continue to practice law. 7.

Throughout his entire legal career, Smith has volunteered his time and legal skills to many non-profit and public causes for the betterment of his community, as well as performing pro bono work for individual clients and the bar as a whole. 8. The conduct in issue occurred on February 17, 2004, nearly four years ago. Hence, it is relatively remote in ¹²¹ time. There is no evidence of any misconduct after February 17, 2004.

Smith’s continuing to practice law presents no credible risk of harm to the public. 9. Smith ... suffered the humiliating consequences of a very public criminal prosecution. Despite the publicity on television and in newspapers resulting from Smith’s criminal prosecution, Smith remains highly regarded in the Montgomery County legal community. 10. The Court finds that the ‘trigger’ or the ‘root cause’ for Smith’s conduct was the intemperate accusation leveled against him by the prosecutor—that Smith had altered the videotape showing the violent beating of Gamino by Andrew Simpson.

See Attorney Grievance Comm[’n] v. Vanderlinde, 364 Md. 376, 413-14 [, 773 A.2d 463, 484-86 ] (2001). Cf. Attorney Grievance Comm[’n] v. Tomaino, 362 Md. 483, 498 [, 765 A.2d 653, 661-62 ] (2001) (‘the state of mind of the attorney at the time of the violation [is] important in the context of mitigation.’); Attorney Grievance Comm[’n] v. Sheridan, 357 Md. 1, 29 [, 741 A.2d 1143, 1158 ] (1999) (‘We agree with Respondent that his state of mind at the time he violated the ethical rules is important in the context of mitigation.’).” (Some alterations in original.) (Some footnotes omitted.) Discussion A. Standard of Review It is clear that “[t]his court has original and complete jurisdiction over attorney disciplinary proceedings.” Attorney Grievance Comm’n v. Tayback, 378 Md. 578, 585 , 837 A.2d 158, 162 (2003); Attorney Grievance Comm’n v. Blum, 373 Md. 275, 293 , 818 A.2d 219, 230 (2003); Attorney Grievance Comm’n v. Harris, 371 Md. 510, 539-40 , 810 A.2d 457, 474-75 (2002); Attorney Grievance Comm’n v. Gavin, 350 Md. 176, 189 , 711 A.2d 193, 200 (1998); Attorney Grievance Comm’n v. Adams, 349 Md. 86, 93 , 706 A.2d 1080, 1083 (1998); Attorney Grievance Comm’n v. Glenn, 341 Md. 448, 470 , 671 A.2d 463, 473 (1996); Attorney Grievance Comm’n v. Kent, ¹²² 337 Md. 361, 371 , 653 A.2d 909, 914 (1995); Attorney Grievance Comm’n v. Powell, 328 Md. 276, 287 , 614 A.2d 102, 108 (1992). Under our independent review of the record, we must determine whether the findings of the hearing judge are based on clear and convincing evidence.

Attorney Grievance Comm’n v. Monfried, 368 Md. 373, 388 , 794 A.2d 92, 100 (2002); Attorney Grievance Comm’n v. Alison, 349 Md. 623, 629 , 709 A.2d 1212, 1214-15 (1998) (quoting Attorney Grievance Comm’n v. Kemp, 335 Md. 1, 9 , 641 A.2d 510, 514 (1994)). We conduct an independent