Attorney Grievance Commission v. Usiak

GREENE, J. Pursuant to Maryland Rule 16-715, 1 the Attorney Grievance Commission of Maryland (“Petitioner”), acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action against Norman C. Usiak (“Respondent”), charging him with professional misconduct arising out of his representation of Ruben Paz-Rubio in the District Court of Maryland, sitting in Frederick County. Petitioner charged Respondent with violating Rule 8.4(d) (Misconduct) 2 of the Maryland Rules of Professional Conduct (“MRPC”). In accordance with Maryland Rule 16-752(a) 3 , we referred the matter to the Honorable Durke G. Thompson, of the Circuit Court for Montgomery ⁶⁷² County, to conduct an evidentiary hearing and to render findings of fact and recommend conclusions of law. In response to our request, Judge Thompson held an evidentiary hearing on June 10-11, 2010 and rendered the following findings of fact and conclusions of law.

Findings of Fact Respondent represented Ruben Paz-Rubio (“Paz-Rubio”) who was charged with driving without a license. On May 15, 2008, Respondent represented Paz-Rubio at his trial in the District Court of Maryland before the Honorable Janice Rudnick Ambrose. The State was represented by Assistant State’s Attorney Jacob Craven (“Prosecutor”). On the morning of trial, Respondent and the Prosecutor made a joint motion for a continuance.

The reason given to the court by Respondent for the continuance request was that Respondent did not wish to proceed with trial until after his client obtained a valid Maryland driver’s permit. The Prosecutor explained to the court that it agreed to the postponement because the State had not provided requested discovery to Respondent and his client until the day before the trial. Judge Ambrose denied the motion for a continuance, but agreed to the State’s request to pass the case and move it to the afternoon docket. Judge Ambrose pointed out: COURT: I’m not postponing this case.

This case is four months old, and there’s already been one postponement for the defense and discovery is not really grounds for a postponement. Now, if you want this afternoon, I’ll let you set it — I’ll set it in the afternoon, but I’m not postponing it for MVA appointments. Although the trial judge made her ruling, Respondent did not relent. According to Respondent: MR.

USIAK: But, we have a right to our discovery. Your Honor. COURT: Well, I don’t — Mr. Usiak that may be, but that’s not a reason for postponement— MR. USIAK: Sure it is. ⁶⁷³ COURT: And I’m not postponing it.

So if you want to pass the case, fine. MR. USIAK: Sure. STATE: If we may pass the case Your Honor.

COURT: Do we have, do we have motor vehicle this afternoon? CLERK: Yes, we do. It’s a very (unclear words). COURT: If you want, I’ll reset it for the afternoon, that should give you ample time to review.

It’s not that complicated of a case, I wouldn’t think. MR. USIAK: Thank you. COURT: Thank you.

After Judge Ambrose heard some other matters on her morning docket, the State recalled the Paz-Rubio case. The Prosecutor moved, “based on evidentiary issues,” to place the case on the stet docket 4 upon the condition that Paz-Rubio provide proof of obtaining a license within 60 days, that he complete 24 hours of community service, and obey all laws. Judge Ambrose stated that she did not normally accept a stet “unless [defendants charged with driving without a licence] have a driver’s license” 5 and asked the Prosecutor to elaborate on the nature of the evidentiary problems. ⁶⁷⁴ Respondent interjected and stated that he had no objection to the Prosecutor’s motion and asked to be excused. Judge Ambrose replied “[n]o you may not.

This case is being heard Mr. Usiak. I’m asking the Prosecutor a question.” MR. USIAK: I object to the question Your Honor. COURT: Well you can object if your want— MR.

USIAK: According to the Rule, I believe it’s, I believe it’s a decision by the Prosecutor— COURT: I think it’s a decision by the Court— MR. USIAK: To enter a stet— COURT: To grant the stet, it’s a motion. MR. USIAK: Not when it’s not objected to by the defense Your Honor.

COURT: No Mr. Usiak, you are wrong. MR. USIAK: No. COURT: Mr. State? STATE: Your Honor it would be based on the stop in this case.

It’s an interesting set of facts— MR. USIAK: If we may be excused Your Honor? COURT: No Mr. Usiak, this case is being heard. MR.

USIAK: I mean no disrespect to you. COURT: Well you’re being disrespectful. MR. USIAK: Well I don’t mean to be.

COURT: We are not concluded yet Mr. Usiak. MR. USIAK: I am Your Honor and I believe that the State— COURT: Mr. Usiak the— Respondent went on to say that he believed that the case was concluded by the Prosecutor making the motion to stet the case. Judge Ambrose told the Prosecutor that if the State wanted to nol pros the case it could, but that she was not granting the motion to stet. 6 The Prosecutor declined to ⁶⁷⁵ nol pros.

When Judge Ambrose asked Respondent for Paz-Rubio’s plea, Respondent replied “we believe that the case has been stetted.” The colloquy continued: COURT: This case has not been stetted Mr. Usiak unless you are rewriting the rules— MR. USIAK: The appropriate mechanism— COURT: Unless you are rewriting the rules, the Court’s not granting the stet. So the State — the case is open— MR. USIAK: It is not within the providence of the Court.

COURT: It is the Court’s providence Mr. Usiak. I think you better sit down and read the rules. MR. USIAK: No Your Honor I, I, we’re leaving.

Your Honor. Excuse me. COURT: We are going to pass this case until you decide what to do. The case is passed.

It is not off the docket Mr. Usiak. Sir have a seat in the courtroom. Mr. Usiak, your client is staying the case is not concluded. You can hear me.

You’re in contempt. For the record, Counsel for the Defendant has walked out of the courtroom while the case was not concluded simply passed for a decision; that’s under Rule 15-203. This case is not over Mr. Craven [the prosecutor]. STATE: Thank you your Honor.

Through an interpreter, Paz-Rubio was instructed by the court to remain in the courtroom because the case was not over. Respondent, however, left the courtroom without his client. The Court, in the meantime, heard other cases and then, after recess, recalled the case. When Judge Ambrose, after recalling the case, received no response from either Respondent or Paz-Rubio, she announced that Respondent, by electing not to return to court, was in contempt.

Respondent ⁶⁷⁶ was sanctioned and fined $250.00. In addition, Judge Ambrose issued a bench warrant for Paz-Rubio’s arrest and set a bond at $500.00. Judge Thompson, the hearing judge in this disciplinary-proceeding, outlined the facts that led to his conclusion that Respondent disrupted the proceedings by walking out of the courtroom if Judge Ambrose did not grant the stet. He found by clear and convincing evidence that “following [Judge Ambrose’s] denial of the motion to continue [the trial,] the Respondent and Prosecutor Craven again discussed the resolution of the case.” These discussions occurred in the courtroom while the courtroom was recessed, but other members of the public were present.

The Prosecutor expressed that he did not expect that the motion to stet the case would have been granted because of Judge Ambrose’s practice of not granting a stet where the charge is driving without a license and the defendant had not obtained a valid driver’s permit by the time of his trial date. The Prosecutor, nonetheless, agreed to request the stet, “but wanted to know what was to happen if Judge Ambrose did not grant the disposition of the stet docket.” According to Respondent, in response to the Prosecutor’s concern, “if the motion were made and there was no objection by the defendant, the Court was obligated to grant the motion.” Clearly, Respondent wanted “his client to obtain his driver’s permit within 30 days and asked for the stet or a nolle prosequi of the case.” Respondent confirmed his plan when he explained to the Prosecutor, “you make the motion to stet the case. I’ll tell the Judge we don’t object and I’ll take it from there.” According to Respondent’s own testimony before Judge Thompson, Respondent’s intention was, “I’ll accept the stet, and if need be, I’ll walk out on [Judge Ambrose].” The Prosecutor explained to Respondent that the State would not enter a nol pros because the police officer was present and ready to testify. Respondent wanted, however, for his client to receive the benefit of either a nol pros or a stet, so Respondent used what he described as a tactic to shame and /or embarrass the Prosecutor.

Because the Prose ⁶⁷⁷ cutor was relatively inexperienced, during the court recess, Respondent spoke to him in a loud and forceful tone using what he described as “colorful” language. 7 Despite Respondent’s tactics during the court recess, at no time did the Prosecutor suggest that Respondent walk out on the proceedings if the motion for a stet were denied. According to the Prosecutor, Judge Ambrose’s instructions to Respondent and his client to remain in the courtroom and that the case was not over were loud enough for Respondent to hear. Judge Thompson found that “Respondent was in the midst of his dialogue with the court when he left the courtroom despite being told that he was not excused, that Paz-Rubio was directed to remain and the case was not concluded.” Further, according to Judge Ambrose, “she told Respondent, ‘[y]our client is staying and the case is not concluded,’ while Respondent was heading for the door of the courtroom, some 40 feet distant. As he reached the door, Respondent turned and ... looked at her while she was saying, “[y]ou can hear me.

You’re in contempt.” Although Respondent acknowledged that he turned toward the judge as he reached the doorway, he maintain[ed] that it was “only for the purpose of looking for his client.” After having listened to the taped recording of the proceedings before Judge Ambrose, Judge Thompson concluded that “Judge Ambrose’s statements to Respondent and Paz-Rubio could be clearly heard.” This finding was consistent with the testimony of the Prosecutor, who said, “Judge Ambrose spoke loudly at that moment.” Respondent admitted to Judge Thompson that he waited outside the courtroom until recess to talk to Paz-Rubio to give him the option of continuing the attorney-client relationship and leaving the courtroom or staying and being represented by a lawyer that Respondent would find at no cost to Paz-Rubio. According to Respondent, he counseled his client and recommended that Paz-Rubio not return to Judge Ambrose’s ⁶⁷⁸ courtroom, although contrary to the court’s instructions, “and instead, accompany Respondent to his office and start working on a petition for a writ of habeas corpus.” 8 As a result, “Paz-Rubio followed Respondent’s advice and did not remain in the courthouse to complete the hearing.” Respondent testified that he gave this advice even though he really believed that Judge Ambrose would accept the stet disposition eventually, and thus revealed he did not believe leaving the courtroom was the only way to protect his client. In an effort to obtain review of the District Court contempt ruling, Respondent filed a petition for a writ of certiorari in the Circuit Court for Frederick County. The action was titled Paz-Rubio versus Judge Ambrose.

Paz-Rubio’s case on the traffic charge was rescheduled for trial to be held on August 8, 2008. Respondent again attempted to delay the disposition of the case by advising Paz-Rubio not to attend the August 8 trial so that Respondent’s “petition for certiorari, filed in the Circuit Court, would not become moot” in an effort for Respondent to argue his “position on the stet question.” Only after a second bench warrant was issued for Paz-Rubio on August 8, 2008, did Respondent agree to accept the State’s final offer to nol pros the charges against Paz-Rubio. Eventually, the petition for certiorari was dismissed by the Circuit Court as moot. Respondent appealed the contempt finding to the Circuit Court for Frederick County, which vacated the finding of contempt and remanded the matter back to the District Court on the grounds that the initial order of the District Court failed to comply with Rule 15-203.

Thereafter, the District Court issued a new order finding Respondent in direct contempt. Respondent appealed the second order to the Circuit Court and that order was affirmed. Thereafter, Respondent “appealed to the Court of Special Appeals, which, on its own motion, transferred the appeal to this Court pursuant to Rule ⁶⁷⁹ 8-132” because the intermediate appellate court did not have appellate jurisdiction to consider the case. See Usiak v. State, 413 Md. 384, 393-94 , 993 A.2d 39, 44 (2010).

We granted Respondent’s subsequent petition for certiorari and reversed the judgment of the Circuit Court because the summary order of direct criminal contempt that was issued did not comply with Rule 15-203 and could not be re-issued as corrected on remand. Usiak v. State, 413 Md. at 403 , 993 A.2d at 50-51 . Conclusions of law Judge Thompson concluded that Respondent “heard and could appreciate the direction and comment of Judge Ambrose.” Citing Attorney Grievance Commission v. Mahone, 398 Md. 257 , 920 A.2d 458 (2007), the hearing judge found by clear and convincing evidence that Respondent’s conduct violated Rule 8.4(d) of the Maryland Rules of Professional Conduct. Respondent’s conduct before Judge Ambrose was “a calculated response to an expected court ruling.

He discussed the very actions he intended to take with the prosecutor, whom he strongly urged to cooperate. The only uncertainty of the event was the chance that Judge Ambrose might agree to the motion made by the State to stet the charges.” Respondent’s action of walking out of the courtroom delayed resolution of his chent’s case even though the delay eventually worked to his client’s advantage. Further, Judge Thompson, concluded that “Respondent’s conduct was in pursuit of his [own] legal philosophy as opposed to his clients interests,” and resulted in a “waste of the time of clerical personnel, the time of the State’s Attorney, and the Court.” Moreover, Judge Thompson determined that Respondent’s behavior constituted “a breach of ethical responsibility” to his client resulting in a bench warrant being issued for Paz-Rubio and probably “anxiety, uncertainty, and bewilderment” to his client. The hearing judge noted that “Respondent subordinated his responsibility to this client to his own desire to ‘make a statement’ by leaving the courtroom and advancing Respondent’s agenda of showing Judge Ambrose that he was correct about the entry of a stet disposition.” ⁶⁸⁰ Although Respondent argued that he believed his conduct “was acceptable as long as it was taken in good faith and supported in law,” the hearing judge concluded that “Respondent ha[d] not proven by a preponderance of the evidence that there [wa]s a defensible or excusable reason for his conduct.” Although the hearing judge pointed out that Respondent’s conduct in this case appears to be an isolated event, however, by acting as he did, “Respondent misapprehended his role in the courtroom.” Rather than “[ajsserting a right for the ‘benefit’ of the State,” clearly “Respondent should have been doing what was possible and ethical to obtain the best result for his client.” Judge Thompson also made findings of fact as to mitigation.

He concluded: Mitigation Prior to the events of May 15, 2008, there was history between Judge Ambrose and Respondent. It undoubtedly, but should not have, played a role in the incident. The Respondent appears to have wanted to prevail over Judge Ambrose personally. While there is evidence of the Respondent’s manner of conducting himself, mostly from his own testimony, the conduct of the Respondent appears to be an isolated event.

It appears that Respondent was trying to make a point in Court by the use of improper means. As such, the conduct is neither corrupt nor immoral. The character of the conduct was annoying and disrespectful, and evinces a lack of confidence in the judicial process. The Respondent’s character reflects an interest of championing the rights of defendants by fighting for and winning points of law that he believes are right.

While this is an admirable trait, such conduct is problematic when it runs contrary to the client’s interests and the needs of the judicial system to fairly administer justice. The character of the conduct seems in the nature of “tilting at windmills” rather than zealously protecting the rights and interests of his client. Witnesses called by the Respondent included ⁶⁸¹ Jack Bloomquist, Esq., who described the Respondent as earnest almost to a fault, and zealous in his advocacy. Bloomquist opined that Respondent considers the law sacred.

He was described as religious, very devout and highly principled. At the same time, Bloomquist recognized that Respondent had weaknesses in his courtroom style and could be over zealous when subtlety might be helpful and more persuasive. In other words, sometimes the Respondent tended to “go over the top” in his representation. The Respondent presented testimony that his conduct was ethical and consistent with his professional obligations and responsibilities to his client.

In his testimony, he essentially argued that his conduct was ácceptable as long as it was taken in good faith and supported in law. In this regard, Respondent testified that he contacted William Poffenberger, Esq., a respected criminal law practitioner, and asked him, “Do you believe that entry of a stet with the consent of the defendant is a termination of the prosecution?” Respondent described this as a “loaded question” to which Respondent received the answer of “yes.” Poffenberger was also called by the Respondent who said, “I believe it was a termination but I didn’t believe that the other side believed that.” Poffenberger explained that the “other side” was referring to judge or judges of the courts. Poffenberger denied that he told Respondent that the Court did not have the right or the authority to deny a motion for a stet, that Respondent should not go back into the courtroom to finish the matter, or suggesting any other course of conduct to the Respondent. In summary, by discussing with the prosecutor in advance his intent to walk out on the court proceedings, by conducting himself consistent with his representations to the prosecutor and disregarding the explicit directions of the Court to Respondent and his client, and further acting to advance his personal legal beliefs contrary to the interests of his client violated the Rules of Professional Conduct.

Respondent, in essence, told the prosecutor to play his role in allowing Respondent to challenge the actions of the Court in order to ⁶⁸² allow himself the opportunity to fall upon his sword in support of a misperceived legal right. Having fallen upon his sword, Respondent now complains that falling on his sword has painful consequences. He is now accountable in these proceedings for his conduct. DISCUSSION Standard of Review Recently, in Attorney Grievance v. Lara, 418 Md. 355 , 14 A.3d 650 (2011), we reiterated that “[t]his Court has original and complete jurisdiction over attorney discipline proceedings in Maryland.” Although we review the record independently, we accept the hearing judge’s findings of fact unless we determine that they are clearly erroneous.

Attorney Grievance v. Guida, 391 Md. 33, 50 , 891 A.2d 1085, 1095 (2006). We review the hearing judge’s conclusions of law de novo. Rule 16-759(b)(l) (providing that “[t]he Court of Appeals shall review de novo the circuit court judge’s conclusions of law.”); Attorney Grievance v. Thomas, 409 Md. 121, 147 , 973 A.2d 185, 201 (2009). The Exceptions and Recommended Sanctions Petitioner did not file exceptions to the hearing judge’s findings or conclusions of law, however, Respondent did file exceptions 9 and a supplement to those exceptions.

As ⁶⁸³ to sanction, Petitioner recommends that we impose a 60-day suspension because Respondent engaged in conduct that was both disruptive and prejudicial to the administration of justice. To the contrary, Respondent does not believe that his conduct is sanctionable because, in Respondent’s view, his intent and efforts were always to protect his client from a prosecution that would have been contrary to the law. Thus, according to Respondent, we should refer his case back to a Peer Review Panel for its further consideration. As to Respondent’s written exceptions to Judge Thompson’s findings of fact and conclusions of law, he first contends that the professional misconduct, alleged to have occurred, never happened.

In addition, he asserts that he has been “deprived of his opportunity to present a defense and Due Process.” Further, Respondent maintains that he never provided a ⁶⁸⁴ disservice to his client and the allegation that he “engaged in conduct intended to be wasteful of judicial resources was never charged.” In support of his argument that the Petition does not mention he wasted judicial resources, Respondent refers to paragraph 11 of the Petition for Disciplinary or Remedial Action, which alleges that “[djuring the proceedings, Respondent was advised by the Court that he was to return with his client for a hearing later in the day[,]” and paragraph 12, which alleges that “Respondent failed to comply with the Court’s direction.” In its response to the first exception, Bar Counsel points out that, based upon the allegations contained in the Petition filed in this case, “Respondent was on notice that he needed to defend against the allegation that he did not comply with the Court’s direction and that he was not free to leave the courtroom or excused from the rest of the hearing.” In addition, Bar Counsel asserts that, the Petition alleged misconduct related to Respondent’s actions on May 15, 2008, and his representation of Paz-Rubio, wherein Respondent interrupted the proceedings, disrespected the trial judge and left the courtroom before the proceedings had concluded. The specific charge contained in the Petition was a violation of MRPC 8.4(d): “It is professional misconduct for a lawyer to ... engage in conduct that is prejudicial to the administration of justice.... ” Respondent does