Attorney Grievance Commission v. White

CATHELL, Judge. Bar Counsel, on behalf of the Attorney Grievance Commission, petitioner, filed two petitions for disciplinary action against respondent, Elvira M. White. In the first petition, Number 81, Bar Counsel represented and charged that respondent had violated Rule 3.4 (Fairness to opposing party and counsel), 1 and Rule 8.4 (Misconduct), 2 of the Maryland Rules of Professional Conduct (Rule or Rules). In petition Number 42, Bar Counsel represented and charged that respondent had violated Rule 3. 3 (Candor toward the tribunal),3 and Rule 8.4.

We referred the charges in both petitions to the Circuit Court for Baltimore City, requesting it to conduct a consolidated hearing and report its findings of facts and proposed conclusions of law to this Court. ³⁵⁰ With respect to petition Number 81, the circuit court found by clear and convincing evidence that respondent violated Rule 3.4(a) and Rule 8.4(c) and (d). Similarly, with regard to petition Number 42, the circuit court found that respondent violated Rule 3.3(a)(1) and (4) and Rule 8.4(b), (cj, and (d). Respondent filed exceptions to the circuit court’s findings and conclusions. Bar Counsel did not file any exceptions and recommended that respondent be disbarred.

We shall overrule respondent’s exceptions and order that she be disbarred. I. Petition Number 81 Respondent was admitted as a member of the Maryland Bar on May 27, 1980. She maintained a part-time civil practice from approximately 1981 until July 1990. Respondent also was employed as a full-time public defender in Prince George’s County beginning approximately July 1,1981.

In March 1995, respondent filed a civil suit in the United States District Court for the District of Maryland against the Public Defender for the State of Maryland alleging employment discrimination. The case was tried before a jury, the Honorable Peter J. Messitte presiding. The jury could not arrive at a verdict and the judge granted a mistrial. The Public Defender filed a renewed Motion for Sanctions, seeking a dismissal of the case with prejudice.

Judge Messitte granted the motion and entered final judgment in favor of the defendant Public Defender. He found specifically: 1. the [respondent engagéd in an action of destruction of parts of an autobiographical manuscript, a substantial portion of which covered events bearing on her claims before the court; 2. that she lied in her July, 1996 deposition when she stated that she had destroyed the entire manuscript; 3. that she knowingly and wilfully intended to destroy discoverable and relevant evidence, and that her statements to the contrary were not believable, and ³⁵¹ 4. that her testimony that she did not understand what it was that defense counsel was asking for was fatuous and not worthy of belief. Respondent appealed the district court’s decision, but failed to prosecute that appeal in a timely manner, and it was dismissed. Judge Messitte referred the matter of respondent’s actions during the litigation to the Disciplinary Committee of the United States District Court for possible sanctions.

The Disciplinary Committee determined that a formal disciplinary proceeding should be instituted against respondent. A panel of three district court judges was appointed to hear the matter. When respondent appeared before the panel, she sought to present testimony challenging Judge Messitte’s findings. The panel declined to allow this and prevented her from relitigating the factual issues that had been decided against her by the trial court, stating that the factual findings “are final and binding on her, and she is now collaterally estopped from challenging them by witnesses or otherwise.” The panel noted that the proper process for her to seek a review of those factual findings would have been to follow through with the appeal.

The panel found that respondent violated Rules 3.4(a) and 8.4(c) and (d) of the Maryland Rules of Professional Conduct. It then recommended to the judges of the full court that respondent be suspended indefinitely from the practice of law in the United States District Court. The full court accepted the recommendation, and respondent was suspended indefinitely from practice in that court on September 26,1997. Based upon the findings, conclusions, and sanctions imposed by the United States District Court, Bar Counsel filed in this Court a petition for disciplinary action, Number 81, for reciprocal discipline pursuant to Maryland Rule 16-710e.l. 4 The ³⁵² circuit court, in its Proposed Findings of Fact and Conclusions of Law, noted that respondent again attempted to present testimony to dispute the factual findings of the federal trial court.

The circuit court, pursuant to Maryland Rule 16-710e.l, declined to permit her to do so. The circuit court then made the same findings as to respondent’s conduct before the United States District Court as described, supra. The circuit court concluded: Based on the rule ... and the absence of any evidence showing cause why she should not be disciplined in the reciprocal matter, this court finds that there was a final adjudication by the United States District Court for the District of Maryland, and that such adjudication is conclusive proof of the misconduct of the Respondent. Respondent excepts to the circuit court’s findings and proposed conclusions of law, claiming for the third time that Judge Messitte erred in sanctioning her and that the panel should not have suspended her.

She argues that “[t]he extraordinary circumstances of this case warranted that Respondent be heard in challenging the wisdom of the United States District Court in suspending her.” Respondent further explains: Instant counsel for the Respondent both at the hearing before the United States District Court and herein attempted to attack this error ridden finding, but was rebuffed by both tribunals. Unlike Attorney Grievance v. Richardson, 350 Md. 354 [ 712 A.2d 525 ] (199[8]), Respondent was never afforded the opportunity to defend herself against the bully tactics employed in the decision by the federal court due to the incompetent act of her counsel and the fact that she had not been notified of her appeal’s dismissal. We said in Attorney Grievance Commission v. Richardson, 350 Md. 354, 365-68 , 712 A.2d 525, 530-32 (199[8]): ³⁵³ This case is a reciprocal discipline case. In such cases, “[a] final adjudication in a disciplinary proceeding by a judicial tribunal ... that an attorney has been guilty of misconduct is conclusive proof of the misconduct in the hearing of charges pursuant to this Rule.” Rule 16-710(e).

See Attorney Griev. Comm’n v. Gittens, 346 Md. 316, 324 , 697 A.2d 83, 87 (1997); Attorney Griev. Comm’n v. Willcher, 340 Md. 217, 221-22 , 665 A.2d 1059, 1061 (1995); Attorney Griev. Comm’n v. Saul, 337 Md. 258, 267-68 , 653 A.2d 430, 434 (1995); Attorney Griev.

Comm’n v. Hopp, 330 Md. 177, 185-86 , 623 A.2d 193, 197 (1993); Attorney Griev. Comm’n v. Sparrow, 314 Md. 421, 425-26 , 550 A.2d 1150, 1152 (1988); Attorney Griev. Comm’n v. Parsons, 310 Md. 132, 142-43 , 527 A.2d 325, 330 (1987); Attorney Griev. Comm’n v. Haupt, 306 Md. 612, 614-15 , 510 A.2d 590, 591-92 (1986); Attorney Griev.

Comm’n v. Bettis, 305 Md. 452, 455 , 505 A.2d 492, 493 (1986); Attorney Griev. Comm’n v. Moore, 301 Md. 169, 171 , 482 A.2d 497, 498 (1984); Attorney Griev. Comm’n v. Rosen, 301 Md. 37, 39 , 481 A.2d 799, 800 (1984). Thus, evidence that the respondent was found, by the Supreme Court of Florida, to have engaged in misconduct and that that finding was used in the District of Columbia to adjudicate reciprocal discipline proceedings against him, is not only admissible in this Court, but such evidence conclusively establishes that he engaged in that misconduct.

As we have seen, the respondent was suspended on two occasions pursuant to an order of the Supreme Court of Florida and the District of Columbia Court of Appeals did likewise. The orders of the Florida and District of Columbia courts were issued only after disciplinary proceedings had been initiated and a hearing had been held to adjudicate the charges referred. Thus, the orders suspending the respondent conclusively establish that the respondent engaged in misconduct, they being final adjudications by a judicial tribunal in a disciplinary proceeding. Gittens, 346 Md. at 325 , 697 A.2d at 88 ; Willcher, 340 Md. at 221-222 , 665 A.2d at 1061 ; Attorney Griev.

Comm’n v. Sparrow, 314 Md. 421 , 550 A.2d 1150 (1988). See also Attorney Griev. Comm’n v. ³⁵⁴ Moore, 301 Md. 169 , 482 A.2d 497 (1984). So too is the fact of the suspensions imposed by the Florida Supreme Court and the District of Columbia Court of Appeals, they too being final adjudications in a disciplinary proceeding. .:.

We have made clear that this provision does not permit the relitigation of the facts underlying the disciplinary judgment. Sabghir, 350 Md. at 80-81 , 710 A.2d at 932-33. The respondent admits to wanting to impeach the Florida judgment. The hearing court correctly declined to permit him to do so; the respondent may not revisit, or collaterally attack, either the findings of fact made by the Florida court or the judgments it rendered. [Alteration in original.] We see no further need to explain the principles we so recently stated in Richardson .

Accordingly, we overrule respondent’s exceptions as to petition Number 81 and sustain the circuit court’s conclusion that respondent violated Rules 3.4(a), and 8.4(c) and (d).

II

Petition Number 42 We first note that this Court has original and complete jurisdiction over attorney disciplinary proceedings. Md. Rule 16-709b; see also 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, 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. The “hearing court’s findings of fact are prima facie correct and will not be disturbed unless they are shown to be clearly erroneous.” Attorney Grievance Comm’n v. Garland, 345 Md. 383, 392 , 692 A.2d 465, 469 (1997) (citing Attorney Grievance Comm’n v. Goldsborough, 330 Md. 342, 347 , 624 A.2d 503, 505 (1993)).

Accordingly, the ultimate ³⁵⁵ decision as to whether a lawyer has violated the Rules rests with this Court. Garland, 345 Md. at 392 , 692 A.2d at 469 ; Attorney Grievance Comm’n v. Breschi, 340 Md. 590, 599 , 667 A.2d 659, 663 (1995). Bar Counsel contends in petition Number 42 that respondent gave false or misleading testimony on two separate occasions. The first alleged occasion took place when respondent testified as a witness in post conviction proceedings relating to Amy Lynn Smith, whom respondent represented as an Assistant Public Defender.

The second instance occurred during a deposition taken in connection with respondent’s federal claim against the Public Defender in which respondent testified about her private representation, long after the Public Defender enacted a ban on private practice, of tenants involved in a fire in the District of Columbia. The circuit court made specific findings of fact relating to the charges outlined by Bar Counsel, which we restate: In this petition, Bar Counsel alleged that while the Respondent was an Assistant Public Defender, she represented one Amy Lynn Smith in a case of some notoriety in Prince George’s County. The Defendant Smith was convicted of a number of offenses, including conspiracy to commit murder and attempted murder in which the victims were her own parents. Subsequently the Defendant Smith filed a petition for post conviction relief in the Circuit Court for Prince George’s County, and the Respondent was called to testify in those proceedings in June of 1994.

While testifying under oath, the Respondent was questioned about the extent of her private practice while in the employ of the Public Defender’s Office. The Respondent testified that as of July, 1990 the private practice of law was prohibited by the State Office of the Public Defender. She further testified that she represented only one client after the prohibition was instituted, and that representation was with the knowledge and permission of her supervisor____ ... Bar Counsel [also] asserts that the Respondent represented plaintiffs for personal injuries in a case arising ³⁵⁶ out of a fire that occurred in the District of Columbia.

This representation was long after the ban on private practice had gone into effect....' The [Respondent was called as a witness in the post conviction proceeding by the attorney for the Defendant Smith. During those proceedings, while the [Respondent was under oath, she was asked: Q. Did you, [Ms.] White, ever engage in any type of practice outside of your Public Defender’s Office while being employed by the Public Defender’s Office? A. Yes. I did.

Q. Under what circumstances did you do that? A. From the time of my full employment from 1980— whenever I was hired, July 1st, when I was hired full time, 1981, until approximately July of 1990. I had a part-time civil practice, and at that time Stephen Harris, the new Public Defender, disbanded the private practice of law. Allen Shepherd [, now the Honorable E. Allen Shepherd, Jr., of the Circuit Court for Prince George’s County,] who was the District Public Defender here in Prince George’s County, told us to finish up everything we had.

Q. Is that what you did? A. Yes, with the exception of a case I handled for a Judge’s daughter long after the prohibition was gone. I did engage in the private practice of law, I handled a case for Judge Audrey Melbourne of her daughter’s divorce, which was heard by The Honorable G.R. Hovey Johnson, and that was against the policy of the Office of the Public Defender, and when she—at the time she and I were close, and she asked me to do her a favor, and as a judge I did her a favor____ The [Respondent testified with regard to the ban that she was told by Judge Shepherd that she could “finish up” any cases which she had started prior to the ban. She under ³⁵⁷ stood this to mean that if the client had contacted- her prior to the ban, she could carry through that client’s case to conclusion, including filing suit on behalf of the client after the ban was in effect.

Judge Shepherd was asked: Q. Concerning cases which were pending in court, where the representation was being carried out by an Assistant Public Defender, what was the policy? A. The policy was you could finish up, conclude those cases that were pending. Q. What about cases which were, where there was no case pending in court or before an administrative agency, but you had a client? A. No. My understanding was, you could conclude those cases for which you had accepted fees and were in the process.

That means in court. Judge Shepherd was then asked whether the Respondent’s statement that he had told her she could finish the case of any client who had contacted her prior to the ban was correct. He answered: I don’t believe it is. You know, she may have misunderstood, but the point is, the directive was clear, that if you have a pending case, you conclude your pending case, but you can’t accept new cases.

When Respondent testified, she was asked on cross examination about these other cases. In each case, Respondent had filed suit or entered her appearance on behalf of the clients after the ban had gone into effect. Bar Counsel attempted to show that there were new matters, while Respondent insisted throughout that she had been “contacted” by the client prior to the ban. Bar Counsel questioned Respondent about these specific cases: 1.

Case of Donna Smith, which involved a complaint for child custody filed after the ban went into effect. Respondent had no documents relating to this file. She testified from memory that she had been consulted by [Ms.] Smith prior to the ban; ³⁵⁸ 2. The Walter case was filed by the [Respondent in 1992.

Respondent believed that Mr. Walter had talked to her about his divorce case prior to July 1, 1990. The complaint filed in 1992 stated that the parties had separated on January 13th, 1989; 3. Branson v. Branson was an action filed by another attorney in which the [Respondent entered her appearance in March of 1992. Again, [Respondent said that she had been consulted by the original attorney prior to the date of the ban.

Respondent had no documents as to when she had been initially approached in that case; 4. The case of Mark C. Saunders, Jr., was one for a limited divorce filed on August 19th, 1991. The complaint in this case averred that the parties had separated on June 15th of 1991. Respondent testified that she had discussed the case with Mr. Saunders well in advance of the filing date; 5. .

The case of James T. Butts (also a domestic case) was filed in. May of 1991. Respondent testified that she had . prepared a legal separation for Mr. Butts at least a year prior to the filing of the suit. 6. The case of David Draggs, another domestic case, was filed in April of 1991.

Respondent testified that she and Mr. Draggs attended the same church, and that she had talked to him long before the ban with regard to his domestic matter. At some point, the Public Defender, Mr. Harris, wrote to the [Respondent asking her to explain her involvement in the above cases. Her response to Mr. Harris was that she had had a relationship with all of them prior to the effective date of the private practice ban. Mr. Harris then requested that the [Respondent send him documents showing when she had, in fact, been contacted by these various clients.

The [Respondent refused to send this information to the Public Defender, although she said that such documents did exist. Her reason for the refusal was that the attorney who was winding up her cases and who had custody of the files had invoked the attorney client privilege. In her testimony ³⁵⁹ before the court, however, [Respondent said that was only one of the reasons: Q. What was another reason? A. Well, there were actually three reasons.

One was attomey/client; two, I was involved in litigation with the Office of the Public Defender, and had been advised by counsel at that time not to supply them with one. Three, I did look for the documents in my basement before I got kicked out of my house, and four, that was about the time of the break-in, in my house, that the police investigated, where somebody only stole files. So, they were the reasons. The [Respondent explained that she had no documents relating to these cases since they had been turned over to the lawyer representing her in Federal Court in the suit against the Public Defender’s Office.

This court suggested that because of the seriousness of the matter and its potential impact on the [Respondent, that if the parties agreed, the case would be continued and this court would instruct the lawyer allegedly in possession of the files to be present at the second hearing. Both counsel adopted the court’s suggestion. The hearing was continued until November 20th, 1998, at which time Erroll Brown, Esquire appeared. Mr. Brown had represented the [Respondent (along with co-counsel, Maurice Foster).

He had no documents which would show any contact between the [Respondent and the clients who had been represented