GREENE, J.
Pursuant to Maryland Rule 16-715,
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,
Although the trial judge made her ruling, Respondent did not relent. According to Respondent:
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
Respondent interjected and stated that he had no objection to the Prosecutor's motion and asked to be excused. Judge
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.
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 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 Prosecutor was relatively inexperienced, during the court recess, Respondent spoke to him in a loud and forceful tone using what he described as "colorful" language.
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
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 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."
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 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
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 client'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 court-room and advancing Respondent's agenda of showing Judge Ambrose that he was correct about the entry of a stet disposition." 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 "[a]sserting 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:
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)(1) (providing that "[t]he Court of Appeals shall review de novo the circuit court judge's conclusions of law."); Attorney
Petitioner did not file exceptions to the hearing judge's findings or conclusions of law, however, Respondent did file exceptions
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 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
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 not contend that Judge Thompson's factual findings were clearly erroneous. See AGC v. Tanko, 408 Md. 404, 418-19, 969 A.2d 1010, 1019 (2009). Instead, he appears to challenge the sufficiency of the evidence offered against him. In our view, it is of no consequence that the Petition failed to allege that Respondent's conduct wasted judicial resources. There were sufficient facts presented for the hearing judge to conclude that Respondent's behavior wasted judicial resources. Judge Thompson concluded, as a matter of law, that Respondent's conduct was inexcusable, wasted judicial resources and was prejudicial to the administration of justice. In view of the specific allegations in the Petition and the abundance of evidence before the hearing court, we find no merit to Respondent's first exception.
Next, Respondent excepts on the ground that the evidence was not clear and convincing that he heard and could appreciate the direction and comment of Judge Ambrose. Respondent does not fare any better on the merits of this exception than on the merits of his first exception. The hearing judge found that when Respondent left the courtroom he was engaged in dialogue with Judge Ambrose. As he was leaving the courtroom, the judge instructed him to remain because the case was not concluded. The instructions to remain in the courtroom were given to Respondent when he was approximately a distance of 40 feet from Judge Ambrose. Judge Thompson listened to the taped recording of the proceedings that took place in Judge Ambrose's courtroom. He concluded that Judge Ambrose's statements to Respondent and his client "c[ould] be clearly heard." This fact was confirmed by the Prosecutor who testified that Judge Ambrose spoke loudly at the time she instructed Respondent that "he was not excused and that Paz-Rubio was directed to remain and the case was not concluded."
Respondent presents no factual or legal basis for us to disturb the factual findings or legal conclusions of the hearing judge. AGC v. Tanko, 408 Md. at 418-19, 969 A.2d at 1019 (noting that the hearing judge is in the best position to resolve questions of credibility of witnesses); AGC v. Dunietz, 368 Md. 419, 427-28, 795 A.2d 706, 711 (2002) (noting that a hearing judge's findings of fact are prima facie correct and will not be disturbed unless clearly erroneous). He points to no specific place in the record to support the conclusion that he
As to Respondent's third exception, he contends that the record does not support Judge Thompson's conclusion that Paz-Rubio suffered any anxiety as a result of Respondent's conduct. Respondent maintains that at no time was his client deprived of competent and effective representation, "even for an instant."
Judge Thompson's conclusion that Paz-Rubio suffered anxiety is a reasonable inference from the circumstances that occurred on May 15, 2008. Also, the hearing judge's conclusion that Respondent failed to act in his client's best interest is firmly supported by clear and convincing evidence on the record. Judge Thompson stated:
According to Respondent's deposition testimony, he intended to "vindicate" and to "validate" the State's right to stet a case without the trial court's approval. The record of the proceedings before Judge Ambrose reveals that Respondent left the courtroom before the case was over and left his client seated in the courtroom. Respondent rejects the conclusion that he abandoned his client. Yet, he offers no credible response to Bar Counsel's observation that, "Respondent had no way of knowing before he left the courtroom that a recess would be called or that his client would have an opportunity to speak with him prior to the resumption of the hearing." Thus, we overrule Respondent's third exception.
Respondent's next exception is that Judge Thompson erred because he minimized the significance of the collateral consequences to Paz-Rubio in not obtaining a stet and also erred in restricting Respondent's examination of Judge Ambrose and Assistant State's Attorney Craven. Respondent maintains that Judge Thompson further erred by discrediting the newspaper articles that Respondent offered into evidence. According to Respondent, his client faced the risk of detention and deportation if he were to be convicted of driving without a license and, in Respondent's words, "the collateral consequences were disproportionate to the traffic offense itself."
Respondent's arguments are not persuasive. There is no requirement that the hearing judge adopt Respondent's theory of the case. The judge is at liberty to pick and choose what evidence to believe and what evidence to disbelieve, as well as what weight to give (or not) to any piece of evidence. If evidence is not relevant or competent, the evidence is not admissible. The deportation policies of the Sheriff of Frederick County are not relevant to this case. The primary issue in this case is Respondent's conduct in open court on May 15. Respondent's reasons for pursuing that course of action before Judge Ambrose, even if noble, did not and could not have justified the mis-guided and ill-founded methods he chose to disrupt or terminate the traffic case pending before Judge Ambrose. Therefore, the exception is overruled.
As to Respondent's fifth exception, he maintains that Judge Thompson erred by ignoring Respondent's intention to obtain a stet for his client, and that there was established authority to support Respondent's view that his client was entitled to a stet disposition without prior court approval. Again, Respondent's view of the matter is short sighted.
We pointed out in Usiak v. State, 413 Md. at 388, n. 5, 993 A.2d at 41, n. 5 that Respondent's interpretation of Maryland Rule 4-248, that the court has no authority or discretion other than to grant the State's motion to stet, is plainly wrong. Even if Respondent's interpretation of the Rule were correct and existing case law supported his position, the conduct that he displayed before Judge Ambrose was not justified and clearly violated MRPC 8.4(d). Accordingly, the exception is overruled.
Finally, Respondent excepts to the hearing judge's failure to allow Respondent to introduce into evidence a transcript to show Judge Ambrose's resentment toward Respondent and Judge Ambrose's disregard for his client's right to effective representation. Respondent maintains that the hearing judge's ruling in that regard severely restricted Respondent's right to cross-examine Judge Ambrose.
Again, Respondent loses sight of the issues in this case. When we consider Respondent's conversations with the Prosecutor and his announced plan to walk out on the judge if she did not grant the stet, Respondent's conduct and motivation, rather than the motivation or animosity that the trial judge held toward Respondent, is relevant. For whatever it is worth, Judge Thompson commented in his written findings under the category entitled, "Mitigation," that the history between Judge Ambrose and Respondent played a role in this incident, but should not have. Judge Thompson concluded, however, that "Respondent appears to have wanted to prevail over Judge Ambrose personally." Moreover, the transcript that Respondent offered into evidence involved an unrelated case and had no bearing on Respondent's conduct or motivation for his courtroom behavior in this case. Judge Thompson did not err in refusing to admit irrelevant evidence or limit Respondent's cross-examination of Judge Ambrose to matters that were relevant. We overrule Respondent's sixth exception, as well as his supplement
The purpose of attorney disciplinary proceedings is to protect the public and not to punish the erring attorney. AGC v. Mahone, 398 Md. 257, 268, 920 A.2d 458, 464-65 (2007); AGC v. Kinnane, 390 Md. at 339, 888 A.2d at 1187. In Mahone, we pointed out that:
Mahone, 398 Md. at 268-69, 920 A.2d at 465(Quoting AGC v. Lee, 393 Md. 546, 563, 903 A.2d 895, 905-906 (2005)).
As to mitigation, we have said:
Mahone, 398 Md. at 269, 920 A.2d at 465 (quoting AGC v. Lee, 393 Md. at 564, 903 A.2d at 906).
The hearing judge in the present case determined that Respondent's conduct in relation to his representation of Paz-Rubio on May 15, 2008 was prejudicial to the administration of justice and in violation of MRPC 8.4(d). We agree with that legal conclusion.
In Mahone, we held that a reprimand was the appropriate sanction for an attorney who violated MRPC 8.4(d) by disrupting the trial court proceedings on one occasion and walking out of the courtroom while the judge was rendering his oral opinion from the bench on another occasion. Mahone, 398 Md. at 269, 920 A.2d at 465. In AGC v. Alison, 317 Md. 523, 565 A.2d 660 (1989), this Court imposed a 90-day suspension for a violation of MRPC 8.4(d) when an attorney verbally abused court clerks, used offensive and vulgar language in court, resisted a court-ordered search, harassed his estranged wife, filed spite charges against his estranged wife for forgery, and made expletive references to police officers. The common thread running through Mahone and Alison was that the attorneys' disruptive and discourteous behavior, in court, involving court personnel and the judicial process, during the representation of a client, was prejudicial to the administration of justice and in violation of MRPC 8.4(d). The respective attorney's disrespect for the judicial process was evident in both cases. The sanction imposed for the respective attorney's misconduct, however, was different because there were more aggravating factors present in Alison than in Mahone.
In the present case, Bar Counsel recommends that we impose "a sanction
At oral argument, in response to the Court's questioning, Respondent showed no remorse and was adamant that if presented with the same situation again, his actions would be the same. That response is troubling where Respondent was on notice that his decision to walk out on the court proceedings to make a point is not acceptable behavior; nonetheless, he would repeat the conduct, apparently because he believes such behavior constitutes zealous advocacy, toward the goal of protecting his client. It is the failure to distinguish between zealous advocacy that is appropriate and professional misconduct that gives the Court pause. In the present case, Respondent reacted inappropriately when the trial judge refused to grant the State's request to stet the case. His conduct was both disruptive and discourteous to the court. His decision to disrupt the legal proceedings and to disrespect the trial judge in the manner in which he did was a calculated response to the judge's anticipated ruling. In Respondent's zeal to manipulate the outcome of the court proceedings, Respondent, as the hearing court found, subordinated his responsibility to his client to his own desire to advance his own agenda. As a result of Respondent's conduct, his client was prejudiced and subjected to two bench warrants, and Respondent advised his client not to return to the courtroom for further proceedings even though Respondent believed that the case could be easily resolved. Finally, Respondent knew that his contemptuous conduct was prejudicial to the administration of justice because of his involvement as defense counsel in Mahone.
Clearly, Respondent's misconduct in this case does not warrant the same disposition as that imposed in Mahone. Respondent's courtroom behavior, moreover, could have warranted a more severe disposition than that imposed in Alison. Only because this is Respondent's first disciplinary matter, where he has been the subject of disciplinary charges, do we adopt Bar Counsel's recommendation for a 60-day suspension, rather than impose a more severe sanction. Accordingly, the suspension of 60 days shall begin 30 days from the filing of this opinion.
Portions of the Respondent's exceptions shall be stricken. As we shall explain in our discussion of each of the exceptions, the exceptions are overruled for the reasons stated herein. The newspaper articles referring to Judge Thompson are stricken from the record. The articles were neither offered nor admitted into evidence at the hearing and are not relevant for purposes of our review of the disciplinary proceedings in this case. The references to the Peer Review Panel proceedings are also stricken. We have explained in several cases the Peer Review Panel proceedings are informal, confidential and privileged. AGC v. Kinnane, 390 Md. 324, 338, 888 A.2d 1178, 1186-87 (2005); AGC v. Lee, 387 Md. 89, 108, 874 A.2d 897, 909 (2005); See Rule 16-723(a). We have said that "Peer Review Panel Reports [are insulated] from subsequent disclosure at later stages of the attorney discipline process." Thus, the evidence that was presented to the Peer Review Panel, and its assessment of that evidence, is irrelevant to our review of the evidence presented at Respondent's actual disciplinary evidentiary hearing.
