Attorney Grievance Commission v. Winters

COUCH, Judge. The Attorney Grievance Commission, acting through Bar Counsel, filed a petition for disciplinary action against Richard Mark Winters (the respondent), alleging violation of Disciplinary Rule 1-102(A)(1), (3), (4), (5) and (6) of the Code of Professional Responsibility. 1 The petition was based upon the respondent’s convictions in two different jurisdic ⁶⁶⁰ tions: 1) in the Circuit Court for Anne Arundel County for conspiracy to violate the Maryland income tax law and for filing fraudulent State income tax returns; and 2) in the United States District Court for the District of Maryland for possession and distribution of cocaine. Pursuant to Rule BV9b, we referred the matter to Judge DeLawrence Beard of the Circuit Court for Montgomery County for an evidentiary hearing, and suspended the respondent from the practice of law in Maryland. 2 Judge Beard has filed with us comprehensive findings of fact and conclusions of law. After reviewing his findings, and the respondent’s exceptions thereto, we conclude that disbarment is the appropriate sanction in this case.

I. The basic facts in this case are not in dispute. They are set forth in Judge Beard’s findings: “The Respondent, Richard M. Winters, was admitted to the Bar of the State of Maryland in 1975. He lived and practiced law in Frederick County, Maryland and maintained what he described as a trial practice which underwent substantial expansion in 1978. In 1978, upon the suggestion of his first wife, Mr. Winters began to experiment with cocaine, which he determined enhanced his ability to work harder, and longer—as much as eighty to one hundred hours per week.

As Mr. Winters’ use of cocaine continued, his dosage and frequency of consumption increased. “In the latter part of 1978 or early part of 1979, Mr. Winters changed his practice of using a standard dosage and consumed whatever amount of cocaine he had available. It was at this time that he acknowledged, at least to himself, his drug addiction; also, the Respondent and his wife separated. Mrs. Winters moved to California ⁶⁶¹ and Mr. Winters began to share a residence with another woman. “The Respondent continued to practice law and in cases where his clients were charged with the offense of Driving While Intoxicated, or Family Practice matters, he was often paid in cash which he intentionally failed to report as income. He used the unreported income for purchases of additional cocaine and began to consume the drug openly.

The Respondent maintained that his conduct was for the purpose of supporting his cocaine addiction and not for material gain and that he has been drug free since September 1982; ... there is no evidence to the contrary. “On September 23,1982 a search warrant was executed on Mr. Winters’ residence which resulted in the following events: “On or about February 14, 1983, Respondent was formally charged in the Circuit Court for Anne Arundel County with violations of Article 81, Sections 221 and 302a of the Annotated Code of Maryland and common law conspiracy. On July 20, 1983 the Respondent was found guilty, after a jury trial of Counts 1, 2, 3, and 6 of the Indictment in that he conspired to violate the Maryland income tax laws and did unlawfully and wilfully make fraudulent Maryland state personal income tax returns for the years 1979 and 1980 in violation of the common law and the above referenced statutes. He was sentenced on September 14, 1983 to incarceration for a period of five (5) years with the execution of all but one year suspended and was placed on five (5) years probation. By Opinion and Order dated October 24, 1984, the Court of Appeals of Maryland affirmed the convictions. [See Winters v. State, 301 Md. 214 , 482 A.2d 886 (1984).] “On or about February 16, 1983, the Respondent was formally charged in the United States District Court for the District of Maryland with violations of 21 U.S.C. sections [841(a)(1), 844(a), 846] and 18 U.S.C. section 2 .

On October 31, 1983 Mr. Winters was found guilty after a jury trial, of possession of a quantity of a Schedule II ⁶⁶² Narcotic Controlled Substance, to wit: Cocaine, under Counts 2, 4 and 5 of the Indictment; and of distribution of a quantity of a Schedule II Narcotic Controlled Substance, to wit: Cocaine, under Count 3 of the Indictment. He was sentenced on December 20, 1983 to incarceration for a period of two (2) years and a special parole term of three (3) years. The convictions were affirmed by the United States Court of Appeals for the Fourth Circuit.” II. Based on these convictions, the trial judge concluded that the respondent had violated Disciplinary Rule 1-102(A)(1), (3), (4), (5) and (6).

The respondent does not take exception to this legal conclusion. Under Md. Rule BV10 e 1, the respondent’s convictions are conclusive proof of his guilt as to these crimes. See Attorney Grievance Commission v. Clinton, 308 Md. 701, 706 , 521 A.2d 1202, 1204 (1987); Attorney Grievance Commission v. Jacob, 303 Md. 172, 178-79 , 492 A.2d 905, 908 , cert. denied, — U.S.-, 106 S.Ct. 272 , 88 L.Ed.2d 234 (1985). A conviction under Md. Code (1957, 1980 Repl.Vol., 1986 Cum.Supp.), Art. 81, § 302(a) of “making a fraudulent return with the intent to defeat the payment of taxes is a crime of moral turpitude.” Attorney Grievance Commission v. Osburn, 304 Md. 179, 181 , 498 A.2d 276, 277 (1985).

III

Turning to the appropriate sanction in this case, the respondent’s serious criminal conduct would normally call for disbarment. See Osburn, 304 Md. at 181-82 , 498 A.2d at 277-78 (convictions for filing fraudulent State income tax returns and for conspiring to violate income tax laws warrant disbarment); Standards for Imposing Lawyer Sanctions Rule 5.11, adopted by the American Bar Association in February 1986 (disbarment is generally appropriate when “a lawyer engages in ... the sale, distribution or importation of controlled substances”). ⁶⁶³ The respondent argues, however, that “compelling extenuating circumstances,” Maryland State Bar Association v. Agnew, 271 Md. 543, 553 , 318 A.2d 811, 817 (1974), exist for imposing a sanction less severe than disbarment. 3 Specifically, respondent asserts that his impaired mental condition, caused by cocaine addiction and a Narcissistic Personality Disorder, was responsible to a “substantial degree” for the conduct which caused his convictions. He seeks an indefinite suspension. Our cases indicate that impaired mental condition or addiction to alcohol or drugs may be a mitigating factor in imposing a disciplinary sanction, even where an attorney’s conduct would otherwise warrant disbarment as a matter of course.

See, e.g., Attorney Grievance Commission v. Haupt, 306 Md. 612, 614-16 , 510 A.2d 590, 591-92 (1986); Attorney Grievance Commission v. Willemain, 305 Md. 665, 679-80 , 506 A.2d 245, 252-53 (1986) (Willemain II); Attorney Grievance Commission v. Newman, 304 Md. 370, 377 , 499 A.2d 479, 483 (1985); Attorney Grievance Commission v. Jacob, 303 Md. 172, 179 , 492 A.2d 905, 908-9 , cert. denied, — U.S.-, 106 S.Ct. 272 , 88 L.Ed.2d 234 (1985); Attorney Grievance Commission v. Aler, 301 Md. 389, 398-99 , 483 A.2d 56, 61 (1984); Attorney Grievance Commission v. Miller, 301 Md. 592, 608-9 , 483 A.2d 1281, 1290 (1984); Attorney Grievance Commission v. Nothstein, 300 Md. 667, 684-86 , 480 A.2d 807, 816 (1984). However, we have imposed sanctions short of disbarment only when the mental impairment or addiction is “to a substantial degree” responsible for the attorney’s improper conduct. Nothstein, 300 Md. at 685 , 480 A.2d at 816 . See Attorney Grievance Commission v. Reid, 308 Md. 646 , 521 A.2d 743, 745-46 (1987); Willemain, 305 Md. at 680 , 506 A.2d at 253 ; Aler, 301 Md. at 398-400 , 483 A.2d at 61 ; ⁶⁶⁴ Miller, 301 Md. at 609 , 483 A.2d at