BATTAGLIA, J.
Table of Contents
I. Introduction .............................................. 3
II. Judge Doory's Findings of Fact ........................... 17
III. Judge Doory's Conclusions of Law ..........................34
IV. Discussion ................................................38
A. Mixter's Exceptions to Judge Doory's
Findings of Fact ......................................39
B. Mixter's Exceptions to Judge Doory's
Conclusions of Law ....................................57
C. Sanction ..............................................68
V. Appendices ................................................75
Mark T. Mixter, Respondent, was admitted to the Bar of this Court on November 20, 1980. On March 26, 2013, the Attorney Grievance Commission, ("Petitioner" or "Bar Counsel"), acting pursuant to Maryland Rule 16-751(a),
In an Order dated March 28, 2013, we referred the matter for a hearing to Judge Melissa Phinn of the Circuit Court for Baltimore City, pursuant to Maryland Rule 16-757.
On May 31, 2013, a copy of the Petition, our Order and a writ of summons was served on Mixter's counsel to which Mixter filed an Answer in which he denied all of Bar Counsel's allegations. A five-day hearing was held before Judge Doory, during which voluminous exhibits from both parties were admitted, the majority of which included Mixter's files from the various cases in which his actions occurred, as well as testimony from expert and lay witnesses; the latter included character witnesses called by Mixter. Judge Doory, on June 9, 2014, issued Findings of Fact and Conclusions of Law in which he found, by clear and convincing evidence, that Mixter had violated Rules 3.1, 3.2, 3.3, 3.4(a), (c), (d) and (f),
For an understanding of the bases of Judge Doory's findings that Mixter had filed various frivolous motions and made misrepresentations in connection with unenforceable subpoenas, as well as that Mixter made misrepresentations to various courts in relation to Maryland Rule 2-431
Subpoenas, according to Maryland Rule 2-510(a),
Furthermore, according to Maryland Rule 2-413(a)(1),
Because "the subpoena powers of the State of Maryland stop at the state line", (Attorney Grievance v. Gallagher, 371 Md. 673, 702, 810 A.2d 996, 1013 (2002), quoting Bartell v. Bartell, 278 Md. 12, 19, 357 A.2d 343, 347 (1976)), when the deposition of, and/or documents from, a non-party outside of Maryland is sought, the dictates "of the place where the deposition is held" must be followed. Maryland Rule 2-413(a)(2). The intersection of Maryland Rules 2-413(a)(1), (a)(2) and (b) has been described as:
Neimeyer & Schuett, Rule 2-413, Maryland Rules Commentary 297 (3d ed.2003, 2013 Supp.)
Subpoenas were issued, by Mixter, to non-party witnesses in various of the following states during the years specified, according to Judge Doory's findings of fact: Arizona (2012),
Securing medical records of an adverse party requires observance of one of a variety of additional protocols as provided by Section 4-306 of the Health-General Article of the Maryland Code, four of which are relevant.
Maryland Rule 2-431 also creates a "certificate requirement" that is a prerequisite to the trial court's resolution of a discovery dispute. The Rule provides that a court need not consider a discovery dispute,
In Rodriguez v. Clarke, 400 Md. 39, 63, 926 A.2d 736, 750 (2007), we examined the history and purpose of the "certificate requirement" contained in Maryland Rule 2-431 and emphasized that making "sincere attempts" to resolve discovery disputes is "integral to the entire discovery process":
Id. at 63-65, 926 A.2d at 750-51.
Discovery disputes arise, generally, when parties cannot agree upon the propriety of a particular disclosure, request or response; although ignoring discovery requests altogether also generates issues:
John A. Lynch, Jr. & Richard W. Bourne, Modern Maryland Civil Procedure 7-127 (2d ed.2004, 2014 supp.).
Against this backdrop, this case arose out of "the Respondent's conduct in twenty-two (22) separate cases" that "span a period of approximately seven years and involve different parties, different opposing
Judge Doory's findings of fact as to Respondent's actions fall into the following categories: Frivolous Motions Directed at Non-Party Witnesses; Frivolous Motions Directed at Out-of-State Witnesses; Subpoenas Issued to Out-of-State Witnesses; Subpoenas Issued in Violation of Rule 2-413; Additional Abuses of Subpoena
Judge Doory found that in eleven of the twenty-two cases, Respondent had issued subpoenas to out-of-state witnesses compelling production of documents without having followed the proper protocol for doing so, listed in Appendices 3 and 4, and, further, that Mixter misrepresented to the recipients that they could be compelled to appear in Maryland. In seven of the eleven cases, Judge Doory found that Respondent had filed frivolous motions with the various courts to enforce the invalid subpoenas, listed in Appendix 3.
In fourteen cases, Judge Doory found that Respondent had filed various different frivolous motions, some to compel, some for sanctions or some seeking contempt, directed to non-party witnesses emanating from his issuance of subpoenas that lacked proof of service or intentionally did not provide sufficient time for production of documents, listed in Appendix 2.
In fifteen cases, according to the findings of fact, Mixter had also made false certifications to the various courts asserting that he had engaged in good faith efforts to resolve discovery disputes, listed in Appendix 6. Judge Doory found that, in eight of those fifteen cases, Mixter had made misrepresentations to the courts by omitting material information from his motions, listed in Appendix 7.
We recount below, for each of the categories of Judge Doory's findings, representative examples within the category.
In the first category of findings, entitled "Frivolous Motions Directed at Witnesses", Judge Doory found that sixty-two separate motions to compel or hold in contempt, listed in Appendix 2, filed by Respondent and directed at non-party witnesses, were frivolous, because the underlying subpoenas that had commanded the appearance of the non-party witness and the production of documents were unenforceable. Judge Doory determined that the subpoenas were invalid, because "there was either no proof of service of the subpoena, or ... it did not provide the witness the requisite 30 days to produce documents as required by Maryland Rule 2-412(c)":
One of Judge Doory's findings in his first category was that Mixter had misrepresented to the Circuit Court for Prince George's County, in a case entitled Byrne-Egan, the date of service of a subpoena on Dr. Stephen Rosenbaum, as well as that the subpoena had been accompanied by a 30-day assurance letter. Mixter had represented in his "Motion to Compel the Custodian of Records of Stephen Rosenbaum, M.D.", that the witness was served "on or about August 25, 2011" as well as "that on September 26, 2011, the 30-day assurance letter was sent." Judge Doory found that, in fact, there had not been proper proof of service presented in the record and that the 30-day assurance letter authorizing the release of the records under Section 4-306(b)(6)(i)(1) of the Health-General Article of the Maryland Code had been sent on the same day the motion to compel was filed; therefore, the Motion, Judge Doory found, was frivolous:
Judge Doory found that, "On occasion, the Respondent was successful in misleading the court and the requested relief was granted", as in Keener, in which a judge with the Circuit Court for Charles County had granted an order compelling the production of documents based upon Mixter's misrepresentation that he had properly served a subpoena on Civista Medical Center for the production of documents, along with a 30-day assurance letter. Respondent, then, according to Judge Doory, had mailed a copy of the order to Civista and threatened to hold Civista in contempt if it failed to produce the requested documents:
In the second category, Frivolous Motions Directed at Out-of-State Witnesses, Judge Doory found that Mixter would "knowingly or recklessly, and in complete disregard for the Maryland Rules" issue "Maryland subpoenas to out-of-state witnesses over whom the Maryland courts have no jurisdiction and then filed frivolous motions to compel compliance with same."
Judge Doory determined that twenty-four motions filed by Mixter, directed at out-of-state witnesses, listed in Appendix 3, were frivolous, "because the court in which they were filed had no jurisdiction over the non-party witness and their failure to comply with a Maryland subpoena, as such, the grounds for each of the motions was without merit":
Judge Doory singled out Respondent's actions in Mixter, a defamation case Mixter had filed against attorneys who had filed complaints against him with the Attorney Grievance Commission, as contradicting Respondent's assertion that Maryland subpoenas had been issued to out-of-state witnesses only by mistake. Judge Doory observed that a subpoena Mixter had issued to Dr. Michael Conte in Arizona for service in that state had been returned as unserved, and found that, after the subpoena was returned, Mixter mailed the subpoena again to Dr. Conte on the same day he filed a motion to compel Dr. Conte's appearance in Maryland:
In the third category, Judge Doory found that Respondent had issued Maryland subpoenas, commanding the witnesses' appearance and production of documents, to thirty-five additional out-of-state witnesses, listed in Appendix 4, coupled with letters containing knowing and intentional misrepresentations to the witnesses that their appearance could be compelled in Maryland:
Some of the out-of-state witnesses, whom Judge Doory identified as having received subpoenas requesting their personal appearance and the production of documents that were improperly issued from Maryland courts, included: Bartley J. Eckhardt, P.E., of Robson Forensic, located in Lancaster, Pennsylvania; Amgolf, Inc., located in Fairfax, Virginia; the Hope for Life Wellness Center, Inc., located in Miami, Florida; Thomas F. Grogan, C.F.E., of Victoria Business Center, located in Springfield, Pennsylvania; and Dr. Stephen Silibiger, located in Pawleys Island, South Carolina.
In the fourth category, entitled "Subpoenas Issued in Violation of Rule 2-413", Judge Doory found that "Respondent had a pattern and practice of knowingly and intentionally noting depositions in the wrong venue in violation of Maryland Rule 2-413".
Mixter, according to the findings of fact, would subpoena non-party, fact witnesses for depositions and production of documents at his office in Baltimore City, when the witnesses were located outside of Baltimore City and the cases were not pending in Baltimore City:
In the section entitled "Additional Abuses of Subpoena Power", Judge Doory identified episodes in Mixter, Alemu and Railey as examples in which Respondent abused his authority as an officer of the court by issuing subpoenas in order to harass and intimidate witnesses and opposing counsel. Judge Doory found that Mixter, in his own case, had issued subpoenas to ten witnesses, compelling appearance and the production of documents, without having provided sufficient time for such production, simply to harass the recipients:
In Mixter's own case, Judge Doory recounted, among others, the events surrounding the subpoena directed to an attorney named Daniel Sussman, one of the witnesses in the suit. Mr. Sussman had filed a motion to quash Mixter's deposition subpoena and production of documents. Judge Doory found that Mixter had misrepresented in his response to the motion the date upon which Mr. Sussman had been served, among other things:
Finally, Judge Doory observed that Mixter also had subpoenaed the driving record of James Farmer, a Mixter defendant, and, in response to Mr. Farmer's motion for a protective order as to his driving record, Mixter asserted "a multitude of disingenuous arguments", including "that the driving record may reveal impeachable evidence including criminal convictions for driving-related offenses and alcohol related charges or problems that `may form the basis for evidence of habit/routine practice under Maryland Rule 5-406' or `a common
Judge Doory found that Respondent also had misused subpoenas in Railey by attempting to compel the defendants' attorney to produce documents unrelated to the litigation at issue:
Finally, in Alemu, Judge Doory found that Mixter had abused the subpoena authority by attempting to secure the exhibits from Mixter's client's deposition, for which he was sanctioned:
Judge Doory, in the section of his findings of fact entitled "Frivolous Motions Directed at Opposing Party", found forty-two instances, listed in Appendix 5, in which Mixter had filed frivolous motions, "because the Respondent either failed to make any good faith efforts to resolve the discovery disputes or the filings were filed prematurely or otherwise do not comply with the Maryland Rules."
Judge Doory put forth one example of Mixter having filed frivolous motions to compel and for sanctions directed at the opposing party in Koontz. Judge Doory noted that Respondent had propounded discovery on the Koontz plaintiffs for their medical and financial information, for which the plaintiffs had requested that Mixter agree to a confidentiality agreement in order to limit disclosure. Mixter, according to Judge Doory, moved to compel production of the medical and financial information, rather than enter into a confidentiality agreement. Judge Doory found that a judge in the Circuit Court for Anne Arundel County denied Mixter's motion but ordered that the plaintiffs provide the requested discovery, once a confidentiality agreement was executed. Mixter then, according to Judge Doory, moved for the circuit court to reconsider its denial of his motion to compel; then, before the circuit court had ruled on the motion, he executed a confidentiality agreement and demanded production of the medical and financial information from the plaintiffs within five days. Judge Doory found that, once the five days had elapsed, Respondent filed a motion to dismiss and/or for sanctions based upon the plaintiffs' failure to provide their medical and financial information:
In the "False Certifications" Section, Judge Doory found fifty-three instances in which "the Respondent falsely certified to the court that good faith efforts to resolve discovery disputes had been made," listed in Appendix 6. According to Judge Doory, Mixter's certifications contained misrepresentations which were intended to mislead the courts into believing that he had engaged in good faith attempts to resolve discovery disputes; in fact, the exhibits Mixter had attached to the certificates were the original letters accompanying the subpoenas sent before any discovery dispute could have existed:
In the Section entitled "Misrepresentations by Omission", Judge Doory observed that Mixter had intentionally omitted from the twelve motions listed in Appendix 7 responses from the adverse parties or the witnesses, in an attempt to advance his position. In the Maryland Rule 2-431 certificates, for example:
In the ninth category of his findings of fact, entitled "Misrepresentations and Disregard for Court Orders and Directives", Judge Doory found that in the Alemu, Byrne-Egan, Canby, Chineme, Davis, Fuselier, Green, Johnson, Keener, Koontz, Mixter, Pearson and Presbury cases that Mixter had, in bad faith and without substantial justification, knowingly and intentionally made misrepresentations as to the
In Byrne-Egan, Judge Doory found that Mixter had knowingly and intentionally misrepresented to White Marsh Psychiatric Associates that no objection had been made to his subpoena for the third-party defendant's mental health records and failed to provide the protective order that had been entered related to those same records:
In Chineme, Judge Doory found that Mixter had facilitated the alteration and destruction of important evidence by his client. Judge Doory explained that when Mixter represented the defendant landlord in a mold case, the plaintiff's expert had attempted to inspect the premises, but Mixter blocked the expert from doing so. The plaintiff, according to Judge Doory, then filed a motion to compel, which was granted by the Circuit Court for Baltimore City, providing that the plaintiff's expert
Judge Doory found that Mixter had also made a knowing misrepresentation to the Court of Special Appeals in Keener. Judge Doory observed that the Circuit Court for Charles County, after a hearing, had found Mixter in contempt for failure to comply with a previous court order. After a subsequent hearing, Judge Doory continued, the Circuit Court had awarded attorney's fees to Mixter's opposition. According to Judge Doory, Mixter appealed both of the Circuit Court's orders to the Court of Special Appeals, asserting that the rulings had been made without a hearing. When apprised of this misrepresentation, Judge Doory found that Mixter had filed an errata sheet alleging that the misrepresentation was a "typographical error"; Judge Doory found that the error was not "typographical", because it provided the basis for an argument and, therefore, the errata sheet was itself a misrepresentation to the Court of Special Appeals:
In Koontz, Judge Doory observed that Respondent had wrongfully represented to health care providers that the opposing party had not objected to disclosure of their medical records, in an effort to obtain confidential medical records. The parties in Koontz, according to Judge Doory, had, in fact, stipulated to the entry of a Protective Order to maintain the confidentiality of the plaintiffs' medical and financial records. Judge Doory found that Mixter violated the Order when he filed a Motion for Sanctions and/or Motion to Compel Supplemental Discovery to which he attached some of the confidential records at issue. Judge Doory noted that Mixter, after the plaintiffs had filed a Motion for Protective Order, issued subpoenas to nineteen of the plaintiffs' health care providers asserting that the plaintiffs had not objected to the disclosure of their medical information:
Judge Doory found that, in Pearson, Respondent had "in bad faith" made "an intentional effort to obstruct the defendants' access to information and to circumvent [a] court order". According to Judge Doory, a judge of the Circuit Court for Prince George's County had granted an order permitting the defendants to speak with the plaintiff's health care providers without the presence of opposing counsel. Judge Doory found that Mixter, subsequently, wrote letters to the nine health care providers admonishing them not to speak to the defense attorneys, in an attempt to circumvent the court order and obstruct the defense's access to evidence:
Judge Doory also determined that Mixter had maintained the Railey litigation "in bad faith and without substantial justification. Not only did the Respondent bring and pursue the case in bad faith but he engaged in abusive, harassing and frivolous discovery practices throughout the entire case". Judge Doory found that Respondent had represented Nancy Railey, plaintiff, before the Circuit Court for Washington County against, inter alia, a group known as the "Cochran Defendants." According to Judge Doory, after Ms. Railey's deposition, it became clear that there was no legal basis for Ms. Railey's claims. Judge Doory observed that, nevertheless, Mixter had frivolously and in bad faith continued the action against the Cochran Defendants and had refused to dismiss a named defendant unless the defense counsel drafted the line of dismissal:
During the hearings in the instant case, Judge Doory also had received "substantial testimony ... with regards to the [misleading] use of [a trial court's action in a case titled] Greater Washington Orthopaedic Group, PA v. Varner and Miles & Stockbridge (Case No. 88899)" (Hereinafter "Varner"). In Varner, according to Judge Doory, "on April 9, 1993, the Honorable Peter J. Messitte, then of the Circuit Court for Montgomery County, Maryland, issued a `Revised Order'" in which Judge Messitte explained "that the treating physician for a plaintiff cannot charge a fee for deposition or trial that is greater than the fee charged to the physician's usual and customary office practice." Judge Doory found that Mixter routinely mailed to expert witnesses for the opposing side a copy of Judge Messitte's interlocutory order in Varner along with a cover letter stating, "I have also enclosed a copy of the decision in the case of Greater Washington Orthopedic Group, P.A. v. Varner, et al., which sets forth the method of payment for your time spent testifying."
At the hearing, Judge Doory received testimony from Mixter's expert witness, Alan Feld, as an expert in the field of civil litigation, who "testified that the Varner opinion provides a proper guideline to be used in determining what a reasonable fee would be for an expert's time." Judge Doory, despite Mr. Feld's testimony, found that "Respondent's statement to the non-lawyer witnesses that the Varner opinion governs the method of payment' is misleading":
Judge Doory determined that the motions within the Petitioner's exhibits related to Joshua Aaron, M.D., Ian M. Weiner, M.D., Douglas M. Shepard, M.D., Clifford
As an example, the circumstances in which Dr. Shepard was involved are typical of the entire group of experts. Judge Doory found that Mixter had noted the deposition of Dr. Shepard and had included the Varner opinion with the notice of deposition. When Dr. Shepard's employer requested advance payment of his fees, Judge Doory noted that Mixter cancelled the deposition, refused to pay Dr. Shepard's fee and called Dr. Shepard to threaten contempt if Dr. Shepard did not appear at the deposition. Judge Doory found that Mixter subsequently filed a Motion to Hold Dr. Shepard in Contempt in which he misrepresented to the court that Dr. Shepard had been properly served; the circuit court, subsequently, in reliance on Mixter's misrepresentation, issued a Show Cause Order directed at Dr. Shepard that Mixter was to serve on the doctor by October 10, 2009. Judge Doory found that Mixter, then, on October 19, 2009, filed a false Affidavit of Service which misrepresented that Dr. Shepard had been served on October 6, 2009:
After delineating these comprehensive findings of fact, Judge Doory then determined the following conclusions of law:
Judge Doory did find that Mixter had proven that during the relevant time period he had suffered from increased stress as a result of his mother's death and his wife's treatment for cancer, and that Mixter had modified his office procedures regarding his interactions with witnesses, but did not accept other offered mitigation:
"This Court has original and complete jurisdiction over attorney discipline proceedings in Maryland." Attorney Grievance v. O'Leary, 433 Md. 2, 28, 69 A.3d 1121, 1136 (2013), quoting Attorney Grievance v. Chapman, 430 Md. 238, 273, 60 A.3d 25, 46 (2013). "[W]e accept the hearing judge's findings of fact as prima facie correct unless shown to be clearly erroneous." Attorney Grievance v. Fader, 431 Md. 395, 426, 66 A.3d 18, 36 (2013), quoting Attorney Grievance v. Rand, 429 Md. 674, 712, 57 A.3d 976, 998 (2012). We conduct an independent, de novo review of the hearing judge's conclusions of law, pursuant to Maryland Rule 16-759(b)(1).
Mixter excepts to Judge Doory's general finding that "the sixty-two (62) motions for relief described in the attached Appendix Two (2), incorporated by reference herein, filed by the Respondent and directed at non-party witnesses were frivolous. The motions were frivolous because ... the subpoena was ineffective as of the date of service because it did not provide the witness the requisite 30 days to produce documents as required by Maryland Rule 2-412(c)." Mixter asserts that even though he had served subpoenas which provided less than thirty days for the recipient to produce documents, that this error was "harmless". We disagree and overrule this exception, because Maryland Rule 2-412(c), which requires thirty days' notice prior to a documents deposition, is written in mandatory nomenclature of "shall". See Dove v. State, 415 Md. 727, 738, 4 A.3d 976, 982 (2010). When the term "shall" is used in a Maryland Rule it "`denotes an imperative obligation inconsistent with the exercise of discretion.'" Gaetano v. Calvert Cnty., 310 Md. 121, 124-25, 527 A.2d 46, 47-48 (1987), quoting City of College Park v. Cotter, 309 Md. 573, 588 n. 23, 525 A.2d 1059, 1066 n. 23 (1987). We disagree with Mixter.
Mixter also asserts, within the same exception, that he could move to compel compliance with subpoenas for which he had provided less than thirty days' notice for the production of documents, because the motions had not been filed until after thirty days elapsed from service. Maryland Rule 2-412(c), again, requires thirty days' notice in order to secure subpoena enforcement. That a motion to compel was filed beyond thirty days after service is, therefore, irrelevant, because the time for the party's appearance, or for raising objections to the subpoena,
Mixter notes numerous exceptions based on the fact that Judge Doory did not find credible his testimony as well as that of some of his witnesses. We, however, generally, "defer to the credibility findings of the hearing judge." Attorney Grievance v. Agbaje, 438 Md. 695, 93 A.3d 262 (2014). "[T]he hearing judge is in the best position to evaluate the credibility of the witnesses and to decide which one to believe and, as we have said, to pick and choose which evidence to rely upon." Attorney Grievance v. DiCicco, 369 Md. 662, 683-84, 802 A.2d 1014, 1026 (2002), quoting Attorney Grievance v. Monfried, 368 Md. 373, 390, 794 A.2d 92, 101 (2002). See also Attorney Grievance v. Sheridan, 357 Md. 1, 17, 741 A.2d 1143, 1152 (1999) (stating that the hearing judge is "in the best position to assess first hand a witness's credibility."). As we have stated, a hearing judge "is free to disregard the testimony of Respondent if the judge believed the evidence was not credible." Monfried, 368 Md. at 390, 794 A.2d at 101.
Mixter excepts to all of Judge Doory's findings that he knowingly and intentionally engaged in misconduct. He initially argues that Judge Doory erred because there was no direct evidence to support that his impropriety was both knowing and
Mixter initially takes exception that Judge Doory did not find credible his testimony that he had, in fact, attempted to resolve discovery disputes by telephoning opposing parties to resolve issues before he filed motions to compel. We defer to Judge Doory's credibility findings and also note that in Mixter's twenty-two case files, introduced into evidence and comprising thirty-two volumes, he did not include any notation nor preserve any documentation in any file, with respect to any such telephone conversations or attempted resolution of discovery disputes.
Judge Doory found also that Mixter knowingly and intentionally misrepresented to various tribunals that he had engaged in good faith attempts to resolve discovery disputes as part of his Maryland Rule 2-431 certificates attached to the fifty-three motions listed in Appendix 6 and contained in Mixter's files. According to Judge Doory's findings, Mixter had attached to every one of his certificates of good faith, as evidence of his attempts to resolve the discovery disputes, a copy of his cover letter accompanying the original subpoenas mandating the production of documents and depositions. For example, within Petitioner's Exhibit 18, which is comprised of Mixter's files from the Mixter litigation, was such a cover letter sent to Stephen Shechtel,
(emphasis in original).
Judge Doory found that the cover letters were not representative of good faith attempts to resolve discovery disputes, because not only were they sent to witnesses before any dispute actually could have existed, but excusing a witness's presence if all documents are produced is not within the contemplation of the Maryland Rules for resolution of discovery disputes. The file reflects, moreover, that after Mr. Shechtel received the subpoena, he responded by letter objecting to it, asserting that: "the Subpoena was served not in accordance with Maryland Rules"; the documents sought were "outside of the Maryland Rules"; the documents deposition was scheduled "without the courtesy of an advance telephone call ... on a date and at a time that [Mr. Shechtel was] unavailable; the request was "far too broad"; and the documents demanded "may constitute attorney work product and accordingly are not discoverable."
Judge Doory also had before him, listed in Appendix 7, twelve motions authored by Mixter and contained in his files — six to compel, three for contempt, two for sanctions (one of which was, in the alternative, a motion to compel) and one for a protective order — in which Judge Doory found that Mixter had knowingly and intentionally omitted reference to letters that attorneys had sent to him attempting to conciliate the discovery disputes before he filed the motions to compel, for contempt, for sanctions and for a protective order. Exhibit 18 includes an example chosen by Judge Doory to discuss, that being a Motion to Compel the production of documents from Steven A. Markey, III, from whom Mixter sought documents embodying any statements made by Mr. Markey to other attorneys about Mixter "at any time whatsoever."
Subsequently, Mixter filed a Motion to Compel the deposition and production of documents from Mr. Markey, in which he entirely omitted any reference to Mr. Markey's letter; instead, the motion included
Judge Doory also found that that Mixter had intentionally and knowingly misrepresented to the Circuit Court for Anne Arundel County, in the Koontz litigation, that the custodian of records for Dr. Eckel had been served with a subpoena for a documents deposition, "on or about 21st day of April, 2010". To his Motion to Compel documents from Dr. Eckel, Mixter had attached a United States Postal Service "Track & Confirm" receipt for the subpoena which revealed that it had not been delivered until April 27, 2010, six days after Mixter had claimed service had been accomplished and had actually been returned to Mixter's office on April 29, 2010. The problems with service on Dr. Eckel, however, had not been revealed in the Motion filed by Mixter. We, accordingly, overrule Mixter's exception to Judge Doory's finding that he knowingly and intentionally misrepresented to the Circuit Court judge in Koontz that Dr. Eckel had properly been served.
Judge Doory found, as well, that, in the Mixter litigation, Mixter had intentionally and knowingly attempted to enforce an unserved subpoena commanding the personal appearance of, and the production of documents from, the custodian of records for Dr. Michael Conte. Judge Doory's finding was premised on Mixter's files, which reflect not only that, on March 8, 2012, Mixter had mailed a documents subpoena to Dr. Conte, but that the subpoena had been returned to Mixter's office and, on April 18, 2012, he had resent the subpoena to Dr. Conte by first-class mail, which our Rules do not contemplate as adequate service. On April 18, 2012, Mixter, however, filed a Motion to Compel in which he asserted that the subpoena had been served "on or about March 6, 2012", but he must have known the subpoena had not been served by the very fact that he had resent it. We, accordingly, overrule Mixter's exception to Judge Doory's determination that he had intentionally and knowingly attempted to enforce an unserved subpoena on Dr. Conte in the Mixter litigation.
Judge Doory found that Mixter had knowingly and intentionally attempted to enforce twenty-four Maryland subpoenas to out-of-state witnesses, which are identified in Appendix 3, without having followed the protocols for issuing enforceable out-of-state subpoenas. Maryland Rule 2-413(a)(2) mandates that a nonparty may only be "required to attend a deposition outside of this State in accordance with the law of the place where the deposition is held." Mixter, however, issued the twenty-four subpoenas, and attempted to enforce them, without having acted "in accordance with the law of the place" where the various out-of-state witness were located.
Judge Doory specifically identified, in the Mixter files, an instance in which Mixter had intentionally misrepresented to a
Judge Doory also found that Mixter had intentionally and knowingly misrepresented to non-party witnesses residing in other states that they could be compelled to appear and produce documents in Maryland. Judge Doory found that Mixter knew that every one of the thirty-five subpoenas listed in Appendix 4 was directed at a witness outside of Maryland, but did not comport with the proper procedures for the issuance of subpoenas to non-party witnesses outside of Maryland. While Mixter knew an out-of-state witness could not be compelled to attend a deposition in Maryland, as discussed supra, the subpoenas, in emphasized print, stated "you are liable to body attachment and fine for failure to obey this subpoena."
Judge Doory, also, found that in seven subpoenas in Mixter's files from five cases, Mixter had intentionally and knowingly misrepresented to non-party residents of Maryland that they could be compelled to appear and produce documents outside of their counties of residence or employment,
For example, Mixter's files from the Mixter litigation contain a subpoena, served on the Maryland Association for Justice, a non-party with its principal office in Howard County, commanding the personal appearance of, and production of documents from, its representative at Mixter's office in Baltimore City. The Association objected to the subpoena on the grounds that, inter alia, it was unenforceable, because it violated Maryland Rule 2-413. Mixter, in response, however, asserted that the Maryland Rule 2-413 violation "does not render the subpoena unenforceable." Upon a review of the record pertinent to the other six subpoenas, Mixter had included the same subpoenas and cover letters which put the recipients on notice that their physical appearance could be compelled, so that we overrule Mixter's exception to Judge Doory's finding that Mixter had intentionally and knowingly misrepresented to non-party residents of Maryland that they could be compelled to appear and produce documents in violation of Maryland Rule 2-413(a)(1).
Judge Doory found, as well, that Mixter had knowingly and intentionally misrepresented to Judge J. Frederick Motz of the United States District Court for the District of Maryland, during the Byrne-Egan litigation, that the third-party defendant had admitted to a failure to timely respond to discovery requests. Mixter's files from the Byrne-Egan litigation, which had been admitted into evidence as Petitioner's Exhibits 3 and 4, contain a Motion to Compel the third-party defendant's answers to interrogatories and production of documents, filed on December 2, 2011. The third-party defendant's Response, filed on December 19, 2011, included within Mixter's files, contained only three affirmations, none of which admitted to a failure to timely respond to Mixter's discovery requests:
In Mixter's letter to Judge Motz the very next day Mixter asserted, however, that the third-party defendant had "admit[ed] to the plaintiff's failure to timely answer my client's discovery requests", which was not reflective of the state of affairs. We, accordingly, overrule the exception.
Judge Doory also found that Mixter had attempted to obtain the opposing parties' health care records during the Byrne-Egan and Koontz litigations by knowingly and intentionally misrepresenting to the health care providers that no objection had been made to the disclosure of such records. Mixter's files from Byrne-Egan show that, on February 21, 2012, the third-party defendant filed a Motion for a Protective Order to "bar the inquiry into and the disclosure of the unrelated mental health history of Emily Seay" and that, on March 5, 2012, Mixter filed a response to the motion for a protective order. Mixter, despite having responded to the motion for a protective order as to Ms. Seay's health
In Koontz, Judge Doory also found that Mixter had attempted to obtain the plaintiff's medical records by knowingly and intentionally misrepresenting to the plaintiff's health care providers that no objections to such disclosure had been made. Mixter's files from the Koontz litigation show that Mixter had issued subpoenas to nineteen of the plaintiff's healthcare providers on April 21, 2010, requesting the plaintiff's medical records and that, on May 5, 2010, the plaintiff filed an "Emergency Motion" for a protective order or to quash or limit those nineteen subpoenas. Sixteen days later, Mixter sent a letter to the health care service providers, a sample of which is contained in his files, wherein he disregarded the existence of the Emergency Motion and informed the providers that, "[the plaintiff] and her attorney have not objected to the disclosure of the requested medical records. Please forward the responsive records at your earliest convenience." Mixter's files support Judge Doory's finding that Mixter had made intentional misrepresentations to the plaintiff's health care providers. We overrule this exception.
Judge Doory also found that Mixter had knowingly and intentionally misrepresented to Judge Deborah K. Chasanow of the United States District Court for the District of Maryland, in the Davis litigation, that the defendants had been properly served with the complaint. Mixter's records, contained in Petitioner's Exhibit 7, include return receipts from the mailed complaints that were that were signed on March 12, 2010. The receipts, however, were not signed by the defendants, as Judge Doory observed and as Mixter himself testified at the hearing before Judge Doory. Mixter, nonetheless, had included the return receipts as exhibits to affidavits he had executed under oath in which he affirmed to Judge Chasanow "that a complaint was duly served upon [the defendants] on or about March 12, 2010 by evidence of the signature on the return receipt attached to this affidavit". The record supports the finding that Mixter had made an intentional misrepresentation to Judge Chasanow; we, therefore, overrule this exception.
Judge Doory found that Mixter had knowingly and intentionally obstructed his opposition's access to evidence in Pearson by sending a letter to his client's physicians requesting that they not speak to opposing counsel, despite a court order authorizing such communication. Mixter's files from the Pearson litigation, received into evidence as Petitioner's Exhibit 21, include an Order from a Judge on the Circuit Court for Prince George's County, issued May 18, 2012, permitting the parties to "engage in ex parte discussions with treating healthcare providers" and allowing "any third-party who is provided with a subpoena requesting the production of documents or commanding attendance at deposition or trial to disclose Protected Health Information in response to such request or subpoena." Mixter's files also contain a letter he had sent to one health care provider, dated just three days after the order, in which he told the physician, after acknowledging the Order, to "refuse to discuss Ms. Pearson's treatment" with the opposition. We overrule Mixter's exception to Judge Doory's finding that Mixter had intentionally attempted to prevent opposing counsel from speaking to his client's physicians in Pearson.
Judge Doory, thus, had clear and convincing evidence that had been contained within Mixter's own files from which he
Mixter also notes exceptions to Judge Doory's findings that various Maryland subpoenas had been improperly served on out-of-state witnesses, because, Mixter argues, Bar Counsel had not presented proof that the various deponents had not consented to a waiver of the Rules. As we have discussed, however, the Maryland Rules and statutes of the various other states in issue require additional protocols for an out-of-state witness to be compelled to attend a deposition.
For example, Mixter asserts that, regarding the Alemu litigation, "Petitioner also failed to produce any evidence that Maharishi University, while located [in Iowa], is not subject to Maryland's subpoena powers for other reasons or that an agreement had been entered into between the parties regarding requests for documents from out-of-state witnesses." The University is located in Iowa and only would have been subject to the authority of the Maryland courts, once Mixter complied with the strictures of Maryland Rule 2-413(a)(2), which would have required adherence to Section 622.84 of the Iowa Code, discussed supra. There was no documentation in Mixter's files that he had attempted to properly serve a subpoena on Maharishi University according to Iowa law or of an agreement waiving service, so that we overrule this exception. We overrule, as well, each of Mixter's similar exceptions premised on the assertion that Bar Counsel had failed to prove that the opposing party in each of the ten cases had not waived the Maryland Rules, because, upon a review of the record, there are no such documents regarding waiver included in any of the relevant files that were maintained by Mixter.
Mixter also excepts to six specific findings that Maryland subpoenas had contained misrepresentations to six non-party, out-of-state recipients, that their attendance could be compelled in Maryland.
We disagree, because Maryland Rule 2-413(a)(2) is explicit that a non-party witness outside of Maryland only may be required to attend a deposition in accordance with the laws of the State where the witness resides. By failing to follow the protocols of the various states in which the witnesses resided, Mixter issued unenforceable subpoenas and the recipients could not be compelled to appear in Maryland. Accordingly, we overrule these exceptions.
Mixter also excepts that Bar Counsel could not have proven that ten subpoenas, from five cases, had not been properly served, because no proof of service was
Mixter also excepts to Judge Doory's findings that various motions to compel the production of records from health care providers were frivolous, because valid subpoenas had been served upon the providers. Judge Doory found, however, that in six instances from four cases Mixter had not complied with additional steps for obtaining health care records provided by Section 4-306 of the Health-General Article of the Maryland Code, discussed supra. The record reflects that Mixter had not complied with Section 4-306, because he had either failed to send a 30-day assurance letter altogether to the medical provider, or he had mailed the letter less than one week before he certified service of a motion to compel the records, thereby providing insufficient time for the production of documents. We, therefore, overrule this exception.
Mixter also excepts to Judge Doory's finding that, "Respondent had a pattern and practice of knowingly and intentionally noting depositions in the wrong venue". According to Mixter, Judge Doory erred because every subpoena for the production of documents in his files had included a cover letter stating that the witness would not have had to appear so long as the documents were produced. Judge Doory found, however, that every subpoena required personal appearance of the witness, because in every subpoena, in those same files, Mixter always had selected the option on the subpoena form that required the witnesses to "personally appear and produce documents or objects", rather than checking the option which provided, "produce documents and or objects only".
Mixter also excepts to Judge Doory's finding that his "Motion to Hold in Contempt Various Custodians of Records" for absence at trial, filed in Alemu, was frivolous, because, according to Judge Doory, Mixter sought to hold non-party witnesses in contempt for their absence at a trial that had not taken place and that Mixter had moved to continue. Mixter asserts that Judge Doory erred in finding that it was he who had filed the motion to continue
Whether Mixter had filed the motion to continue, however, was not dispositive with regard to Judge Doory's finding that the motion to hold the non-party witnesses in contempt was frivolous, because "there was no basis in fact or law to file a motion to hold non-party witnesses in contempt of court for failure to appear at a trial that did not take place." Mixter's file containing the docket sheet from Alemu reflects that the Circuit Court Judge had granted a postponement, on June 17, 2010, while Mixter had filed his motion for contempt, within the subsequent month, on July 8, 2010. We, accordingly, overrule Mixter's exception to Judge Doory's finding that the "Motion to Hold in Contempt various custodians of records" was frivolous.
Mixter also excepts to Judge Doory's finding that the Motion to Compel the Custodian of Records of Maryland Dental Board to produce documents, filed in the Canby litigation on November 2, 2011, was frivolous. As Mixter recognized in his exception, he sent notice of the deposition on October 20, 2011 for a deposition to be held on October 31, 2011, which did not comport with the thirty-day requirement of the Maryland Rules.
Mixter excepts to Judge Doory's finding that the Motion to Compel the custodian of records of CSC-Layers to produce documents in Dunston was frivolous for being untimely, because, Mixter argues, Judge Doory could not rely upon the Circuit Court's order denying the Motion to Compel to conclude that the motion itself, also included in the record, was frivolous. In the Order, which was included with Mixter's files from Dunston in Petitioner's Exhibit 8, Judge Audrey Carrion of the Circuit Court for Baltimore City denied the Motion to Compel as untimely, because it was filed "in violation of the discovery deadline defined in the Scheduling Order." This exception is overruled.
Mixter notes an exception to Judge Doory's finding that the Motion to Compel Custodian of Records of GEICO to produce documents in Dunston was frivolous, on the basis that the Motion to Compel was not part of the record before Judge Doory. Judge Doory could not have found that the motion to compel was frivolous, because that motion was not included in the Dunston files. We sustain this exception.
Judge Doory found, as well, that the Motion to Hold in Contempt the records custodian of GEICO was a frivolous motion directed at a non-party. Mixter also excepts to this finding, on the basis that
Mixter next excepts to Judge Doory's finding that the Motion to Compel the custodian of records of Washington Hospital Center, located in Washington, D.C., to produce documents in the Fitzgerald litigation was frivolous, because, he asserts, he had properly complied with the District's rules for service, as evidenced by a Washington D.C. subpoena in his files from the Fitzgerald litigation. As we explained supra, however, in 2008, when the subpoena was issued, the District of Columbia required that a commission and notice be issued by the Circuit Court for Prince George's County. See D.C.Code § 14-103 (2008). We overrule this exception.
Mixter also notes an exception to Judge Doory's finding that the Motion to Compel production of documents from the Maryland Association of Justice filed in Mixter was frivolous. Mixter asserts that "the Maryland Association for Justice concedes that it was served a subpoena from Respondent". Service was not the issue, however, because the Association objected to enforcement of the subpoena on the grounds that the deposition was mandated to be taken in the wrong county, in Mixter's office in Baltimore City.
Mixter excepts to Judge Doory's finding that the Motion to Compel the production of documents from the custodian of records for Dr. Rosenbaum contained a misrepresentation to the Circuit Court for Prince George's County in the Byrne-Egan litigation. Mixter affirmed to the Circuit Court in the Motion to Compel that the witness was served "on or about August 25, 2011". Judge Doory observed, however, that "[t]he green card is clearly from something else as it was dated August 16, 2011, more than a week before the relevant subpoena was issued." Mixter, however, urges that "while it appears that the green card is dated `8/16/11' it is more likely that the green card is actually dated `8/26/11'". A review of the green card in Mixter's files that had been received into evidence reflects the date as "8/16/11". We, therefore, overrule this exception.
Mixter also excepts to Judge Doory's finding that he misrepresented to the Circuit Court for Charles County in a Motion to Compel in Keener that an enforceable subpoena for the production of documents had been served upon the Civista Medical Center. Mixter, in his exception, asserts that the subpoena was enforceable, because it was served on Civista, located in Charles County, on September 21, 2009, and he sought production of documents at his office in Baltimore City on October 19, 2009. Furthermore, Mixter excepts on the basis that he had sent thirty-day assurance letters to Civista, in compliance with Section
The subpoena directed at Civista, however, was unenforceable, because it sought the production of documents from a non-party witness in the wrong jurisdiction, as mandated by Maryland Rule 2-413, discussed supra. Furthermore, under Maryland Rule 2-412(c), Civista had thirty days within which to produce documents, but the subpoena for the production of documents called for fewer days. Under Section 4-306 of the Health-General Article of the Maryland Code, finally, Civista could not have produced the documents on October 19, before it had received the 30-day assurance letters on October 22. We, therefore, overrule Mixter's exception.
Mixter notes an exception to Judge Doory's finding that the Motion to Compel the production of medical records from the United States Department of Health and Human Services in Fitzgerald was frivolous, because the Department had been properly served at its Maryland office. Judge Doory's finding that the Motion to Compel was frivolous, however, was based on the fact that Mixter had misrepresented to the Circuit Court for Prince George's County that he had complied with Maryland Rule 2-431, discussed supra. Mixter in fact, however, had not engaged in good faith efforts to resolve the dispute, and he had omitted from the motion relevant correspondence from the Department, such as letters he received notifying him that he was required to first obtain consent from Ms. Fitzgerald for the release of the requested documents. We accordingly overrule his exception.
Mixter excepts to Judge Doory's finding that, in Koontz, the Motion to Compel the production of documents from the custodian of employment records for the United States Internal Revenue Service was frivolous, because he had properly served an enforceable subpoena on the Internal Revenue Service in Annapolis. Judge Doory had found, however, that the Motion to Compel was frivolous, because there had been no proof of service of the subpoena, which is supported by a review of Mixter's files in Koontz. We overrule this exception.
Mixter also excepts to Judge Doory's finding that the Motion to Compel supplemental answers to interrogatories from the plaintiff, filed in the Circuit Court for Prince George's County in Byrne-Egan, was a frivolous motion, because there had been no good faith attempts at resolution of the discovery dispute. We sustain this exception, because the record contains a copy of the opposing party's Answer to Motion to Compel in which they admit to having submitted incomplete answers to interrogatories.
Mixter excepts as well to Judge Doory's finding as frivolous the Motion in Limine to preclude Ms. Emily Seay from testifying as to her alleged emotional distress in the Byrne-Egan litigation. Mixter argues that the Motion in Limine was proper "as it sought to preclude the Third-Party Defendant from introducing evidence of mental or psychological damages after a protective order had been entered precluding Respondent from obtaining medical records relating to said damages." Judge Doory's finding was based on the fact that Ms. Seay stipulated that, "[she] is making no claim of psychiatric injuries as a result of this accident."
Mixter also notes an exception to Judge Doory's finding that the Motion for Contempt filed in Canby to preclude Douglas Barnes from testifying and for sanctions was frivolous, because, he argues, "[t]his motion was directed at an expert witness for Defendant. Therefore, Respondent excepts to the court's use of this motion to support its claim that Respondent filed frivolous motions directed at opposing parties." Mixter also excepts, with regards to Judge Doory's use of the Motion for Contempt to preclude Dr. Barnes, "to the trial court's finding that the filing of a Motion [for Contempt]
Judge Doory, however, had only made two findings with regards to the Motion for Contempt to preclude Dr. Barnes: that the motion contained a false certification of good faith efforts at resolution of a discovery dispute, (see Appendix 6 ("Vol. 6, tab 31")), and that the motion exemplified Mixter's use of motions for contempt in order to "harass[] and intimidat[e] opposing parties and expert witnesses by threatening an order of contempt in an attempt to force the expert to appear at a deposition on terms, often unreasonable, set by the Respondent or be excluded from testifying at trial." With respect to Dr. Barnes specifically, Judge Doory found:
(internal record citations omitted). Mixter's files from Canby do not show any subpoena related to the Motion for Contempt and the exhibits included with the Defendant's Answer to Plaintiff's Motion for Contempt reveals the truth, that Mixter had filed the Motion for Contempt in an attempt to force Dr. Barnes's deposition to move forward on Mixter's own terms.
Mixter also notes an exception to Judge Doory's finding that the Motion to Dismiss and/or for Sanctions for Plaintiff's Complete Failure to Provide Discovery in the Koontz litigation was a frivolous motion directed at the opposing party. Judge Doory found that Mixter had not acted in good faith by creating the discovery dispute, because Mixter had made unreasonable demands of his opposition, attempted to enforce those demands without any good faith effort at conciliation and, further, that Mixter had not presented evidence that the opposition refused to agree to his demands:
Mixter's assertion, however, is that he had submitted the confidentiality agreement "nearly two weeks before the motion to dismiss was filed" and that "[t]he plaintiffs should have been prepared to provide discovery responses upon receipt of the executed confidentiality agreement sought at their request." Mixter's files reflect that, contrary to Mixter's assertions, the plaintiffs had provided the requested discovery on October 26, 2009, which he believed to be inadequate. There is no documentation in the file, however, that demonstrates Mixter had acted in good faith to resolve the myriad of discovery issues. We overrule Mixter's exception to Judge Doory's finding that the Motion to Dismiss was a frivolous motion directed at the opposing party.
Mixter notes an exception to Judge Doory's finding that the Motion to Compel answers to interrogatories and the production of documents from the defendant filed in Presbury was frivolous, because, he argues, the motion was not premature. Judge Doory had found that the Motion to Compel was frivolous, because it was filed with a false certification that good faith efforts had been made to resolve the discovery dispute. Mixter's files from Presbury indicate that only one letter had been sent from Mixter to the opposition in an attempt to resolve the dispute, to which the opposition replied in an effort to address the outstanding issues. Mixter's files show that he had neither conciliated further nor described nor referenced the "letter from opposing counsel informing him that, due to the fact the defendant was an out-of-state corporation, the discovery responses were not yet due", in his Motion to Compel, as required by Maryland Rule 2-431. We, accordingly, overrule this exception.
Mixter also excepts to Judge Doory's finding that the Motions to Compel Supplemental Discovery, to Compel Supplemental Answers to Interrogatories, for Default Judgment and Other Sanctions and to Compel Supplemental Discovery Concerning Expert Witnesses, all filed against the defense in Railey, were frivolous, because Judge Doory had improperly based his finding upon an opinion by the Circuit Court for Washington County in the case. The opinion, within Mixter's files from Railey that had been received into evidence as Petitioner's Exhibit 25, provided, with regard to all four motions, that "Mixter and the Plaintiff proceeded in this case in bad faith and without substantial justification". We overrule Mixter's exception.
Mixter excepts as well to Judge Doory's finding that the Motion for Protective Order to preclude the Alemu plaintiff from taking a de bene esse deposition of Dr. Danziger, included a misrepresentation by omission. Judge Doory had found that Mixter had made the misrepresentation by omission by not attaching to the Motion for Protective Order, or otherwise describing, correspondences from opposing counsel, as required by Maryland Rule 2-431. Mixter's records from Alemu show that the Motion for a Protective Order included only Mixter's letters to opposing counsel, without inclusion of the return correspondence, which indicated that attempts had been made to resolve the dispute. We overrule this exception.
Mixter notes an exception to Judge Doory's finding that the Motion to Compel production of documents from the custodian of records of Neil J. Fagan, an attorney and putative deponent in Gonzales, contained a misrepresentation by omission to the Circuit Court for Montgomery County and that the motion was frivolous. Judge Doory found that Mixter had requested documents from Mr. Fagan that Mr. Fagan had previously turned over to the plaintiff's attorney in Gonzales and that Mixter had omitted that Mr. Fagan had notified Mixter that he was no longer in possession of the requested documents before Mixter filed the motion on November 19, 2009. Mixter argues in his exception, however, that "[i]t was immaterial that Mr. Fagan provided the documents responsive to Respondent's requests to [plaintiff's counsel] because the simple fact remains that the requested documents were not provided to Respondent in accordance with the subpoena." A review of Mixter's files, however, shows that, according to a letter written by Mixter on November 30, 2009, to both Mr. Fagan and the plaintiff's attorney, Mixter acknowledged that he had, on November 11, 2009, received documents responsive to the subpoena from the plaintiff's attorney.
Mixter's records, furthermore, contain only the standard cover letter, discussed supra, as what he purported represented a good faith attempt at resolution of the dispute with Mr. Fagan prior to filing the Motion to Compel, but without any mention of the assurance from Mr. Fagan that he no longer had the documents nor any reference to Mixter's having received any documents responsive to the subpoena. We, accordingly, overrule this exception.
Mixter next excepts to Judge Doory's finding that, in the Pearson litigation, he had obstructed access to evidence by sending to Ms. Pearson's medical providers letters telling them not to speak to opposing counsel. Mixter argues that, technically, his actions did not violate the Circuit Court's order allowing ex parte communications. However, as Judge Melanie Shaw Geter found during the Pearson litigation and Judge Doory observed, "the Respondent's letters to the healthcare providers `thwarts the spirit of [the] order'". Further, as discussed above, Judge Doory properly found that Mixter had intentionally sought to prevent the physicians from speaking to opposing counsel. We, therefore, overrule this exception.
Mixter also notes an exception to Judge Doory's finding that he had brought and pursued the Railey litigation in bad faith, because opposing counsel "had no idea as to what information Ms. Railey had presented to Respondent prior to the filing of the lawsuit." Mixter also excepts to Judge Doory's finding that pursuing the Railey litigation against Leo Cline had been in bad faith, because it was defense counsel's "refus[al] to draft the Line of Dismissal" that kept Mr. Cline in the litigation. We sustain Mixter's exception as far as the record does not show he had brought the litigation in bad faith.
The basis for Judge Doory's finding, however, was that the Circuit Court Judge had determined that the deposition of Ms. Railey, Mixter's client, had been "devastating" to her claim against the Cochran Defendants and that, after her deposition, Mixter should have dismissed the Cochran Defendants from the suit. Judge Doory had relied upon an unreported opinion from the Court of Special Appeals, included in Mixter's records from the Railey litigation, in which the intermediate appellate court vacated the Circuit Court's denial of the Cochran Defendants' motion for sanctions against Mixter. In the opinion, the Court of Special Appeals noted that "in her deposition, Ms. Railey appeared to undermine the factual bases for many of the counts in the complaint" and that the Cochran Defendants had appeared "to generate a genuine issue as to the frivolous nature of some of [the] various motions, notices of deposition, and subpoenas advanced by [Mixter]."
Furthermore, Mixter does not contend that there was any good faith basis to continue to maintain a suit against Mr. Cline, but, rather, that it was opposing counsel's responsibility to draft the line of dismissal that Mixter would file. Mixter's letter regarding dismissal of Mr. Cline was included in Petitioner's Exhibit 24, which is one of the two volumes of Mixter's files from the Railey litigation. The letter shows that Mixter was aware that the action against Mr. Cline was baseless, but that he would only dismiss the action were opposing counsel to write the line of dismissal, as retribution for opposing counsel's
We, accordingly, overrule Mixter's exception to Judge Doory's finding that pursuing the Railey litigation was frivolous.
Mixter notes an exception to Judge Doory's finding that he used the Varner opinion issued in 1993 by Judge Messitte, at the time a Judge of the Circuit Court for Montgomery County, to create discovery disputes and rattle witnesses. Judge Doory found that the Varner opinion "explains that the treating physician for a plaintiff cannot charge a fee for deposition or trial that is greater than the fee charged for the physician's usual and customary office practice." Mixter testified at length before Judge Doory about his practice of regularly including the Varner opinion with his subpoenas to opposing experts. When asked by Bar Counsel whether it was his "intention to tell anyone, especially an expert witness, that the Varner decision was an appellate decision that was controlling", Mixter replied that he had not. Mixter agreed, however, that he regularly included the Varner opinion with letters to opposing experts informing them that it would control the method by which their fees would be determined, even though it was twenty years old and issued by one circuit court judge, prior to Kilsheimer v. Dewberry & Davis, 106 Md.App. 600, 665 A.2d 723 (1995), an opinion issued by the Court of Special Appeals, which was controlling at all relevant times that Mixter had sent the Varner opinion to opposing experts.
Mixter excepts to Judge Doory's finding that the Circuit Court Judge in Byrne-Egan had granted Mixter's "Motion for Contempt and for Show Cause Order, or, in the Alternative, Motion in Limine to Preclude Matthew Mulqueen from Testifying at Trial", filed on March 16, 2012, based upon misrepresentations made by Mixter in the motion that Mr. Mulqueen had been properly served with subpoenas for depositions scheduled for October 12, 2011: Mixter asserted that Mr. Mulqueen had "been properly served with a subpoena and notice of deposition, [but] failed to appear for his October 12, 2011 deposition in this matter." In fact, however, the subpoena called for Mr. Mulqueen's attendance on November 14, 2011, rather than October 12, 2011.
On December 9, 2011, Mixter issued a subpoena for a deposition on January 17, 2012, at which Mr. Mulqueen did not appear. Mixter's files contain two undated green cards, which Mixter asserts were returned from the two subpoenas at issue in the Motion for Contempt. These facts do not show by clear and convincing evidence that Mixter made a material misrepresentation that Mr. Mulqueen had been properly served with deposition subpoenas. We sustain this exception.
With the exception of the four exceptions alleged by Mixter to the findings of fact that have been sustained, we determine that Judge Doory's findings were based on clear and convincing evidence and now turn to the exceptions Mixter filed with respect to Judge Doory's conclusions of law.
Mixter excepts to Judge Doory's conclusion that he violated Rule 3.1, which requires that "[a] lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous", by filing each of the one hundred and twenty-seven motions listed in Appendices 2, 3 and 5, as well as pursuing the Railey litigation. Judge Doory concluded:
With respect to sixty-one of the motions identified by Judge Doory in Appendix 2 as "Frivolous Motions Directed at Non-Party Witnesses", for which the evidence was clear and convincing, Judge Doory found that they "were frivolous because no valid subpoena was ever served on the witness; there was either no proof of service of the subpoena, or the subpoena was ineffective as of the date of service because it did not provide the witness the requisite 30 days to produce documents as required by Maryland Rule 2-412(c)." Mixter had filed and pursued the motions by misrepresenting to the various courts that the underlying subpoenas had been served or that the subpoenas provided sufficient time for the production of documents that were being compelled.
Judge Doory also identified the twenty-four motions contained in Appendix 3 as frivolous, based on clear and convincing evidence, because they were directed at out-of-state witnesses and "the court in which they were filed had no jurisdiction over the nonparty witness and their failure to comply with a Maryland subpoena, as such, the grounds for each of the motions was without merit." Judge Doory found that, in order to support enforcement of the subpoenas, Mixter misled the various circuit courts by omitting the states of residence of the parties under compulsion, knowing that they were out-of-state witnesses, to avoid notifying the Maryland judges that additional protocols were required. According to Judge Doory, Mixter, in the subpoenas he had issued, also had misrepresented to the out-of-state recipients that their appearance could be compelled in Maryland, even though under our Rules, their appearance could not be.
With respect to forty-one of the motions listed in Appendix 5, Judge Doory relied on clear and convincing evidence that they "were frivolous because the Respondent either failed to make any good faith efforts to resolve the discovery disputes or the filings were filed prematurely or otherwise [did] not comply with the Maryland Rules." Under Maryland Rule 2-431, Mixter — like any other attorney — was required to engage in good faith efforts to resolve discovery disputes prior to filing motions to compel or for sanctions, which he failed to do, coupled with misrepresentations that he had done so.
Mixter had attempted to enforce over one-hundred and twenty unenforceable subpoenas through meritless motions to compel in order to, as Judge Doory found, coerce his opposing parties into compliance with his excessive discovery requests by "bludgeoning [them] with ... frivolous motions". Mixter's behavior was violative of Rule 3.1. See Attorney Grievance v. Gisriel, 409 Md. 331, 356-57, 974 A.2d 331, 346 (2009) ("The legal process should never be used as the Respondent did here, i.e., merely a device to apply pressure to the other parties....").
Judge Doory also found, based upon clear and convincing evidence, with respect to the Railey litigation, that Mixter had pursued the suit "in bad faith and without substantial justification", because Mixter knew that his client's deposition undercut
Mixter excepts to Judge Doory's conclusion that he had violated Rule 3.2, which requires that an attorney "make reasonable efforts to expedite litigation consistent with the interests of the client", because:
"The effect of the Respondent's conduct", Judge Doory found, is that "the court dockets are clogged and the ordinary and proper resolution of claims is delayed."
Mixter argues that Judge Doory erred, because "there is no evidence [that] Respondent's conduct delayed the litigation in any of the 22 cases at issue." He further contends that, "It is without merit to critique Respondent for routinely requesting a hearing on the motions he filed", because it was for the courts to determine if the hearings were warranted. Mixter asserts that Rule 3.2 only applies upon a finding that a case was delayed, citing Attorney Grievance Commission v. Hermina, 379 Md. 503, 842 A.2d 762 (2004), or only "to scenarios where either counsel did very little to advance his own client's claim or totally failed to participate in discovery", citing Attorney Grievance v. Steinberg, 395 Md. 337, 910 A.2d 429 (2006).
We have interpreted Rule 3.2 violations to include a situation in which an attorney pursued "unwarranted motions ... thereby frustrating the opposing party's attempt to obtain rightful redress." Attorney Grievance v. McClain, 406 Md. 1, 14, 956 A.2d 135, 142 (2008). In McClain, the hearing judge found, based upon clear and convincing evidence, that McClain had engaged in tactics that were not geared towards expediting litigation, such as filing meritless motions in order to hinder the partition sale of his client's property. We determined that McClain violated Rule 3.2, because his motivation for filing the unwarranted motion was "to prevent the sale of the property, thereby frustrating the opposing party's attempt to obtain rightful redress." Id. We also have indicated that Rule 3.2 may be the basis for discipline when an attorney files meritless recusal motions. See Surratt v. Prince George's County, 320 Md. 439, 468, 578 A.2d 745, 759 (1990) ("[A] motion that turns out to be totally without basis in fact ... could be the subject of lawyer disciplinary proceedings", citing Rule 3.2).
Delay is not the dispositive issue under Rule 3.2,
In Obert v. Republic Western Ins. Co., 264 F.Supp.2d 106, 110 (D.R.I.2003), two of the attorneys for Republic Western Insurance Company had been admitted pro hac vice and subsequently were ordered to show cause why that status should not be revoked "based on their actions in pursuit of an unsuccessful motion to recuse that they filed on behalf of their client" in the District Court. The District Court referred the matter to a magistrate judge who concluded that the attorneys had impermissibly diverted the court's resources when they "filed an untruthful affidavit in support of the frivolous motion to disqualify" in violation of Rule 3.2 of the Rhode Island Rules of Professional Conduct.
Mixter violated Rule 3.2 by filing over one hundred and twenty frivolous motions, which wasted valuable resources of the courts and the parties. His reliance on Steinberg is unavailing.
Mixter also excepts to Judge Doory's conclusion that he had violated Rules 3.3(a)(1) and (a)(4). Rule 3.3(a)(1) requires that a lawyer not knowingly "make a false statement of fact or law to a tribunal or fail to correct a false statement of material
Judge Doory concluded Mixter violated Rules 3.3(a)(1) and (4) by regularly making "false statements of material fact to the courts", as well as with "the specific misrepresentations to the court outlined in the section entitled `Misrepresentations and Disregard for Court Orders and Directives'" and by "routinely misrepresent[ing] that out-of-state witnesses were subject to the jurisdiction of Maryland courts, valid subpoenas were issued and properly served, dates of service, that he made good faith efforts to resolve discovery disputes prior to filing motions and that opposing parties or non-party witnesses had refused to respond to his efforts to resolve discovery disputes."
Mixter urges that he did not violate Rules 3.3(a)(1) and (4) because the record is devoid of any false statement of fact that he made to the courts. Mixter also argues that "where the documentation attached to Respondent's motions to compel were inaccurate, the fact the documentation was attached proves Respondent did not intend to mislead the court and certainly establishes that there was not the requisite scientor [sic] to deceive the court when filing these motions."
Judge Doory found, in any event, by clear and convincing evidence, that Mixter had knowingly and intentionally made misrepresentations to various courts, to include: falsely asserting in the twenty-four motions listed in Appendix 3 that the opposing parties were properly served with subpoenas outside of Maryland; falsely certifying in the fifty-three certifications listed in Appendix 6 that he had engaged in good faith efforts at resolving discovery disputes; willfully omitting material information in connection with the twelve motions listed in Appendix 7; in the Byrne-Egan litigation, writing a letter to Judge Motz, in the United States District Court for the District of Maryland, in which he "knowingly and intentionally mischaracterized and misrepresented" the content of the opposition's motion; in the Byrne-Egan litigation, also failing to inform the court, in his response to the court's Show Cause Order for Contempt, that a motion for a protective order as to the third-party defendant's mental health records was pending when he sought those same records; in the Davis litigation, filing a false affidavit in the United States District Court for the District of Maryland in which he asserted that the defendants had been properly served with copies of the complaint; in Green, writing letters to the clerk of the court demanding that hearings on at least five motions were required while omitting that the opposition had requested that the motions be ruled on without hearings and that some of the motions were not yet ripe; in the Johnson litigation, sending a letter to the clerk of the court "informing the Clerk that his Motion to Compel was unopposed, though he knew that the plaintiff had filed a timely opposition to Respondent's Motion to Compel"; in Keener, misrepresenting to the Court of Special Appeals that it was only due to a typographical error that he had falsely framed the procedural history of the suit; in Mixter, asserting that a witness's discovery responses were overdue when, in fact, the witness had been served only three days prior to the date the motion was filed; and, in Mixter, also alleging that Dr. Conte had been properly served with a subpoena for documents when Mixter had filed the motion to compel on the same day he had mailed the subpoena
As Judge Doory found, Mixter knew that he was making misrepresentations to numerous courts, parties and witnesses. We, accordingly, overrule Mixter's exception to Judge Doory's conclusion that he had violated Rules 3.3(a)(1) and (4).
Mixter also excepts to Judge Doory's conclusions that he had violated Rules 3.4(a), (c), (d) and (f). Rule 3.4(a) requires that an attorney not "unlawfully obstruct another party's access to evidence". Judge Doory concluded that "the Respondent violated Rule 3.4(a) by obstructing the [plaintiff's expert's] access to evidence [for testing] and thereby facilitating his client in the destruction of evidence in the Chineme case." Mixter, however, posits that he did not violate Rule 3.4(a) because, "There is absolutely no evidence on this record that Respondent instructed his client to modify the property in question in any way".
We overrule Mixter's exception. Judge Doory had before him clear and convincing evidence that, in the Chineme litigation, Mixter's opposition filed a Request for Entry upon the Premises and the parties, thereafter, agreed to allow the expert to enter the premises to take the necessary samples and, that once the expert entered the premises, Mixter blocked the expert from gathering specimens required for testing. Mixter, therefore, obstructed access to evidence and, thereby, its preservation, in violation of Rule 3.4(a).
Judge Doory concluded also that Mixter violated Rule 3.4(c), which requires that an attorney not "knowingly disobey an obligation under the rules of a tribunal", by "knowingly disobeying the rules of procedure as outlined" and by "knowingly and intentionally disobey[ing] specific court orders and directives as stated in the section entitled `Misrepresentations and disregard for Court Orders and Directives'". Mixter knowingly and intentionally: issued Maryland subpoenas to out-of-state witnesses, in violation of Maryland Rule 2-413(a)(2), while simultaneously violating the rules of various foreign jurisdictions, on the more than fifty occasions listed in Appendices 3 and 4; failed to follow the proper protocol per Section 4-306 of the Health-General Article of the Maryland Code in order to obtain medical records from health care providers; submitted the fifty-three Maryland Rule 2-431 certificates listed in Appendix 6 without having engaged in good faith attempts at resolving discovery disputes; issued subpoenas that provided less than thirty days for document production as required by Maryland Rule 2-412(c); delivered subpoenas by first-class mail, in violation of Maryland Rule 2-121(a)(3); attempted to prove service with falsified green cards, or without green cards altogether, contrary to Maryland Rule 2-126(a)(3); and noted depositions of in-state witnesses in improper counties as delineated by Maryland Rule 2-413(a)(1).
Mixter excepts to Judge Doory's conclusion that he had violated Rule 3.4(c) on the same bases as his factual exceptions, that being that he did not knowingly disobey court orders or Maryland Rules, which we have already overruled. As a result, we overrule Mixter's exception.
Under Rule 3.4(d), it is professional misconduct to "make a frivolous discovery request". Judge Doory concluded that Mixter violated Rule 3.4(d), because he "abused his authority, as an officer of the court, to issue frivolous subpoenas and make frivolous discovery requests and demands". Mixter excepts on the basis that Judge Doory improperly found that the various subpoenas and discovery requests were frivolous.
In ruling on the applicability of Rule 3.4(d) the Oklahoma Supreme Court faced a similar situation in Godlove, 318 P.3d at 1092, with respect to their Rule 3.4(d).
Mixter then excepts to the conclusion that he violated Rule 3.4(f). Rule 3.4(f) requires that an attorney not "request a person other than a client to refrain from voluntarily giving relevant information to another party", with narrow exceptions, not applicable here. Judge Doory found that Mixter violated Rule 3.4(f) by "requesting the plaintiff's doctors to not speak with defense counsel in Pearson" after the Circuit Court Judge, Judge Shaw Geter, filed an Order allowing "that the attorneys for the parties to this lawsuit are permitted to engage in ex parte discussions with [the healthcare providers]." According to Judge Doory, based upon clear and convincing evidence, Judge Shaw Geter "found that while the Respondent's letters to the healthcare providers `thwarts the spirit of [the] order' they did not directly violate the order".
Mixter asserts, in conclusory fashion, that he did not violate Rule 3.4(f), because
With respect to Judge Doory's conclusion that Rule 3.4(f) was violated when Mixter sent the letter to the Pearson physicians, we recognize that the Health Insurance Portability and Accountability Act (HIPAA), Pub. Law 104-191, 110 Stat.1936 (1996), codified as amended in scattered sections of Titles 18, 26, 29 and 42 of the United States Code, may have been implicated. See Strayhorne v. Caruso, No. 11-15216, 2014 WL 916814, at *2 (E.D.Mich. Mar. 10, 2014) (collecting cases) ("The parties recognize, and other courts have observed, that HIPAA neither permits nor prohibits such ex parte communications."). The record is not developed as to the HIPAA issue, however, because it was not raised by Bar Counsel nor Mixter, as it was not before us. The sanction against Mixter remains the same regardless of whether we overrule or sustain Judge Doory's conclusion that Mixter violated Rule 3.4(f). See Attorney Grievance v. Snyder, 368 Md. 242, 261, 793 A.2d 515, 526 (2002) (electing not to address an exception the merits of which were not argued before the hearing judge, because "it would not bear on the attorney's other violations and would not affect the sanction to be imposed"). Therefore, we elect not to address the Rule 3.4(f) violation.
Rule 4.1(a)(1) requires that the attorney not knowingly "make a false statement of material fact or law to a third person". Judge Doory concluded that Mixter violated Rule 4.1(a)(1) by making false statements of law to third parties regarding the enforceability of Maryland subpoenas:
Mixter asserts that he did not violate Rule 4.1, because he did not knowingly make misrepresentations to third parties. Judge Doory had before him clear and convincing evidence that Mixter knowingly had misrepresented to the recipients of the over fifty subpoenas listed in Appendices 3 and 4 that their appearance could be compelled in Maryland. Mixter also, as Judge Doory found, had misrepresented to numerous non-party witnesses, located in Maryland, that they could be compelled to attend a deposition in a county other than that in which they resided. Mixter, therefore, violated Rule 4.1(a)(1) on more than fifty occasions, and we overrule this exception.
Mixter asserts that he did not violate Rule 4.4(a), which states that an attorney "shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that the lawyer knows violate the legal rights of such a person", because his attempts to obtain medical records of various parties only failed for want of Rule compliance, and they were not done with the purpose of embarrassing, delaying or burdening a third person. Judge Doory concluded that Mixter did violate Rule 4.4(a), because he had attempted to obtain medical records, mental health records and driving records of opposing parties, in defiance of court
In McClain, 406 Md. at 15, 956 A.2d at 143, we determined that McClain had violated Rule 4.4(a), even though "there was no suggestion that Respondent's tactics were intended to injure [the third party] nor that he or his client bore any ill-will towards [the third party]", because McClain's actions "were pursued in total disregard for their substantial cost to [the third party], were intentionally dilatory and were without legal basis." In the instant case, similarly, Judge Doory had before him clear and convincing evidence that, during the litigation in his own case, Mixter had attempted "to harass and intimidate the defendants" by requesting their entire driving histories under "a multitude of disingenuous arguments". As the Circuit Court Judge in Mixter stated, the driving records "had absolutely nothing to do with the pending claim for defamation and that the subpoena was aimed solely at harassing the defendant[s]." Mixter intentionally pursued the defendants' driving records without basis, causing his opposition to use time and resources to obtain protective orders as to their driving records, and delaying litigation, thereby violating Rule 4.4(a). See id.
Judge Doory also had before him clear and convincing evidence that, in Byrne-Egan, Mixter attempted to obtain the third-party defendant's mental health records, despite knowing that a motion for a protective order as to those records was pending. Even after the protective order was granted, Mixter filed a motion to compel production of the third-party defendant's mental health records in which he misrepresented to the health care provider that there had been no objection to the production of said records. Mixter's acts caused a useless waste of time and resources, in violation of Rule 4.4(a).
Judge Doory, finally, had clear and convincing evidence before him that, in Koontz, Mixter had issued subpoenas and filed motions which delayed discovery and burdened the opposition. Mixter had issued subpoenas to nineteen of the plaintiffs' health care providers, causing the plaintiffs to move for protective orders or to quash the subpoenas. While the motion for protective order was pending, Mixter misrepresented to the medical providers that there had been no objection to release of the records and filed motions to compel against two health care providers. None of Mixter's motions had any legal basis and only served to delay litigation because they unnecessarily required the plaintiffs to expend time and resources in addressing the motions and, therefore, violated Rule 4.4(a). We overrule this exception.
Judge Doory also determined that Mixter violated Rule 8.4(c), which prohibits "conduct involving dishonesty, fraud, deceit or misrepresentation", because of Mixter's "usual pattern of practice ... laden with deceit and consistent misrepresentations
Judge Doory found, by clear and convincing evidence, that Mixter had knowingly and intentionally made many misrepresentations to the various courts, to include: falsely asserting in the twenty-four motions listed in Appendix 3 that the oppositions were properly served with subpoenas outside of Maryland; falsely certifying in the fifty-three certifications listed in Appendix 6 that he had engaged in good faith efforts at resolving discovery disputes; willfully omitting material information in connection with the twelve motions listed in Appendix 7; in Alemu, by omitting from a Motion for Protective Order to preclude the opposition from taking a de bene esse deposition of an expert, return correspondence from opposing counsel indicating that attempts had been made to resolve the dispute; in the Byrne-Egan litigation, writing a letter to Judge Motz, in the United States District Court for the District of Maryland, in which he "knowingly and intentionally mischaracterized and misrepresented" the content of the opposition's motion; in the Byrne-Egan litigation, also failing to inform the court, in his response to the court's show cause order for contempt, that a motion for a protective order as to the third-party defendant's mental health records was pending when he sought those same records; in the Davis litigation, filing a false affidavit in the United States District Court for the District of Maryland in which he asserted that the defendants had been properly served with copies of the complaint; in Fitzgerald, by omitting from his Motion to Compel medical records from the United States Department of Health and Human Services letters he had received from the Department notifying him that he was required to first obtain the patient's consent for the release of the documents; in the Gonzales litigation, by omitting from his Motion to Compel the production of documents from Mr. Fagan correspondences from Mr. Fagan indicating that he had previously turned the requested documents over to Mixter's opposition; in Green, writing letters to the clerk of the court demanding that hearings on at least five motions were required while omitting that the opposition had requested that the motions be ruled on without hearings and that several of the motions were not yet ripe; in the Johnson litigation, sending a letter to the clerk of the court "informing the Clerk that his Motion to Compel was unopposed, though he knew that the plaintiff had filed a timely opposition to Respondent's Motion to Compel"; in Keener, misrepresenting to the Court of Special Appeals that it was only due to a typographical error that he had falsely framed the procedural history of the suit; in Mixter, asserting that a witness's discovery responses were overdue when, in fact, the witness had been served only three days prior to the date the motion was filed; and, in Mixter, also alleging that Dr. Conte had been properly served with a subpoena for documents when Mixter had, in fact, filed the motion to compel on the same day he had mailed the subpoena underlying the motion to compel the production of documents from Dr. Conte.
Mixter engaged in dishonest and misrepresentative actions in violation of Rule 8.4(c), and we overrule his exception.
Mixter, finally, excepts to Judge Doory's conclusion that he violated Rule 8.4(d), which requires that an attorney not "engage in conduct that is prejudicial to the administration of justice", because, he asserts, "There is no clear and convincing evidence that Respondent's actions are designed
Judge Doory concluded that Mixter violated Rule 8.4(d), because his conduct "without question, brings the profession into disrepute":
Conduct that is prejudicial to the administration of justice is that which "`impacts negatively the public's perception or efficacy of the courts or legal profession.'" Attorney Grievance v. Dore, 433 Md. 685, 696, 73 A.3d 161, 167 (2013), quoting Attorney Grievance v. Rand, 411 Md. 83, 96, 981 A.2d 1234, 1242 (2009). We have said that "`conduct prejudicial to the administration of justice'" should not be given a "`restricted meaning'" and that "`the duty rests upon the courts, and the profession as a whole, to uphold the highest standards of professional conduct and to protect the public from imposition by the unfit or unscrupulous practitioner.'" Attorney Grievance v. Robertson, 400 Md. 618, 640-41, 929 A.2d 576, 589 (2007), quoting Rheb v. Bar Ass'n of Baltimore City, 186 Md. 200, 205, 46 A.2d 289, 291 (1946). An attorney, finally, engages in conduct prejudicial to the administration of justice when he or she files "frivolous motions," engages in "intentionally dilatory tactics" and makes repeated misrepresentations to the courts. McClain, 406 Md. at 16, 956 A.2d at 144.
Mixter impugned the efficacy of the courts and the legal profession by making over one hundred and twenty misrepresentations in twenty-two cases before numerous courts. As an officer of the court, Mixter was expected to manifest integrity, but, instead, he repeatedly made misrepresentations to various tribunals in an effort to abuse and browbeat his opponents into complying with his excessive and unnecessary discovery requests.
Mixter, additionally, was abusive towards his colleagues at the Bar. In his own case, Mixter pursued an action for defamation in an effort to harass opposing counsel from previous suits, as well as those who had complained to Bar Counsel about his misbehavior.
Finally, subsection (a) of Rule 8.4 states that it is professional misconduct to violate the Rules; consequently, a Rule violation is itself sufficient to support a violation of Rule 8.4(a). Attorney Grievance v. Nelson, 425 Md. 344, 40 A.3d 1039 (2012). As stated above, Mixter had repeatedly violated a copious number of Rules and had, therefore, violated Rule 8.4(a). In summary, Respondent violated Rules 3.1, 3.2, 3.3(a)(1) and (a)(4), 3.4(a), (c) and (d), 4.1(a)(1), 4.4(a) and 8.4(a), (c) and (d).
When determining appropriate sanctions, it is well settled that the purpose of attorney discipline is to protect the public, not punish the attorney. Attorney Grievance v. Coppola, 419 Md. 370, 19 A.3d 431 (2011). Attorney discipline is also directed at deterring other lawyers from violating the Maryland Lawyers' Rules of Professional Conduct and to maintain the integrity of the legal profession. Attorney Grievance v. Zuckerman, 386 Md. 341, 872 A.2d 693 (2005). We evaluate an attorney grievance matter on its own merits and impose sanctions "that are commensurate with the nature and gravity of the violations and the intent with which they were committed." Attorney Grievance v. Gore, 380 Md. 455, 472, 845 A.2d 1204, 1213 (2004). Therefore, we consider the nature of the ethical duties violated in light of any aggravating or mitigating circumstances. Attorney Grievance v. Sweitzer, 395 Md. 586, 911 A.2d 440 (2006).
With regard to aggravating factors, we often consult Standard 9.22 of the American Bar Association Standards for Imposing Lawyer Sanctions. Attorney Grievance v. Hodes, 441 Md. 136, 206, 105 A.3d 533 (2014):
Here, aggravating factors (a), (c), (d), (g) and (i) are present, because Mixter had previously been reprimanded for abusive discovery tactics, some of which have been replicated in this case, which include acts after 2008, when Mixter was previously sanctioned. Mixter has also evidenced a clear pattern of misconduct over twenty-two
Factor (a), "prior disciplinary offenses", is present here, because Mixter received a reprimand, by consent, from this Court for Rule 3.2 and 8.4(d) violations in 2008. Attorney Grievance v. Mixter, 403 Md. 463, 943 A.2d 615 (2008). Bar Counsel summarized the reprimand as follows, to which Mixter does not except:
Factor (c), "pattern of misconduct", is evidenced when an attorney's actions constitute the same course of conduct. See Attorney Grievance Comm'n v. Kerpelman, 292 Md. 228, 244, 438 A.2d 501, 509 (1981) ("If we could conclude that this was a pattern of conduct we would not hesitate to disbar."). Mixter's misrepresentations to courts include: falsely asserting in the twenty-four motions listed in Appendix 3 that the oppositions were properly served with subpoenas outside of Maryland; falsely certifying in the fifty-three certifications listed in Appendix 6 that he had engaged in good faith efforts at resolving discovery disputes; willfully omitting material information in connection with the twelve motions listed in Appendix 7; as well as numerous specific cases, including, in the Davis litigation, filing a false affidavit in the United States District Court for the District of Maryland in which he asserted that the defendants had been properly served with copies of the complaint; and, in Mixter, alleging that Dr. Conte had been properly served with a subpoena for documents when Mixter had filed the motion to compel on the same day he had mailed the subpoena underlying that motion.
Mixter's misrepresentations to witnesses and third parties include: threatening the recipients of the over fifty subpoenas listed in Appendices 3 and 4 that their appearance could be compelled in Maryland, when it could not; informing numerous non-party witnesses, located in Maryland, that they could be compelled to attend a deposition in a county other than that in which they reside, when they could not; and notifying several health care providers that the subjects of the medical records Mixter had requested had not objected to disclosure of the records, when they, in fact, had.
From the copious number of misrepresentations made with respect to the papers listed in each Appendix, as well as the numerous additional misrepresentations found by Judge Doory, it is clear that Mixter engaged in several "pattern[s] of misconduct", to include: misrepresenting proper service to courts; misrepresenting to courts that good faith attempts at resolving discovery disputes had been attempted; misrepresenting the law to third parties regarding compelling discovery; and misrepresenting to health care providers that there had been no objections to the release of certain records.
Factor (d), "multiple offenses", is implicated when an attorney violates multiple
Factor (g), "refusal to acknowledge wrongful nature of conduct", is also implicated. Mixter has not once acknowledged that he had committed any improper act and, even when he has recognized that "[t]here certainly are examples where the person on the receiving end of Respondent's conduct may have felt harassed", Mixter asserts that those feelings are "subjective" and, seemingly, irrelevant, because, he argues, no one was "intimidated to the point that he or she changed their course of action". Out of Mixter's one-hundred and six pages of exceptions, he only asserts, in one sentence, that he is "sincerely remorseful", without elaboration. Factor (g) is clearly relevant. See Hodes, at 208, 105 A.3d 533 ("[Respondent's] remorselessness further intensifies the nefariousness of his conduct.").
Factor (i), "substantial experience in the practice of law", finally, is applicable. Mixter has been a member of the Maryland Bar for over thirty-four years.
With respect to mitigating factors, we have considered:
Attorney Grievance v. O'Leary, 433 Md. 2, 31, 69 A.3d 1121, 1138 (2013), quoting Attorney Grievance v. Brown, 426 Md. 298, 326, 44 A.3d 344, 361 (2012).
Judge Doory determined that Mixter had proven, by a preponderance of the evidence, various mitigating factors, to include: attending to his mother during her fatal bout with cancer from January through July of 2010; caring for his wife in April through June of 2012 during her diagnosis, treatment and convalescence from a brain tumor; dealing with his, now controlled, Atrial Fibrillation
Judge Doory found that Mixter did not prove, by a preponderance of the evidence, other purported mitigation, to include: consulting with Dr. Carroll, at the behest of trial counsel, to find better ways to deal with what Dr. Carroll described as Mixter's "ultra competitive personality"; that the twenty-two cases here at issue are a mere three percent of Mixter's caseload and, therefore, insignificant; that Mixter had to work within court imposed deadlines which was a source of additional stress; and that Mixter's clients hold him
With respect to Mixter's cooperation with Bar Counsel, Judge Doory noted that Mixter provided "extensive records and documents" and did not interfere with Bar Counsel's investigation and, therefore, we consider this as mitigation.
Regarding Mixter's work with Dr. Carroll, Judge Doory found that Mixter failed to prove, by a preponderance of the evidence, that he sincerely attempted to change his abusive and misrepresentative practices, because Mixter had met with Dr. Carroll "seven times beginning in late 2012", four years after his reprimand in 2008 and then only at the behest of trial counsel. We agree with Judge Doory that Mixter did not prove sincere attempts to change his practice by a preponderance of the evidence, and we overrule his exception.
Judge Doory made no findings that Mixter recognized the wrongfulness of his actions. Mixter's lack of remorse is an aggravating factor, in light of his grudging one-liner that acknowledged any regret out of over one hundred pages of exceptions. We, accordingly, overrule Mixter's exception that he had proven his remorsefulness by a preponderance of the evidence.
Mixter repeatedly has urged that he was only acting as a zealous advocate for his clients, which Judge Doory should have considered a mitigating factor. We have addressed the role of zealous advocacy in the context of Rules violations in McClain, 406 Md. 1, 956 A.2d 135. McClain argued that a sanction less than disbarment was appropriate for actions violative of Rules 1.1,
In Attorney Grievance v. Culver, 381 Md. 241, 282, 849 A.2d 423, 447-48 (2004), we reiterated that zealous advocacy is important to representing a client, but that it neither excuses nor mitigates Rule violations:
Accordingly, we overrule Mixter's exception that his alleged zealous advocacy should be considered a mitigating factor.
Mixter excepts to Judge Doory's failure to find his high volume practice as a mitigating factor, pointing to Dore, 433 Md. 685, 73 A.3d 161 and Attorney Grievance v. Geesing, 436 Md. 56, 80 A.3d 718 (2013), for support. Dore and Geesing, in fact, support Judge Doory's finding that Mixter's high volume practice was not a mitigating factor.
In Dore, the attorney had "authorized his employees to sign his name on affidavits filed in foreclosure actions" and the employees "notarized the bogus signatures" to expedite Dore's firm in handling as many as 1,200 foreclosure filings per month. 433 Md. at 689, 690, 73 A.3d at 163, 164. Dore urged, for purposes of mitigation, that his behavior should have been considered in light of the high volume of filings his firm was facing. We rejected Dore's argument, noting instead that "[c]ases not limited to a single violation or to one client — even when the attorney's conduct is unintentional — call for a more severe sanction". Id. at 723, 73 A.3d at 183.
In Geesing, a case in which we applied Dore, we suspended an attorney ninety days for "robo-signing" over 2,500 affidavits in foreclosure suits.
Mixter's attempt to find succor, then, in Dore and Geesing is unavailing, as we have recognized that a large volume practice only increases the need for diligence.
With the aggravating and mitigating factors in mind, we turn to determining the appropriate sanction. Bar Counsel recommends disbarment in the present case, because "Respondent engaged in intentionally dishonest, deceitful and misleading
"We long have held that repeated acts of dishonest, fraudulent, or misleading behavior may warrant a sanction of disbarment", even in the absence of misappropriation of client funds. Steinberg, 395 Md. at 373, 910 A.2d at 450. When an attorney "engage[s] in intentional dishonest conduct ... the bar is set especially high, and disbarment will be the appropriate sanction". Id. at 375, 910 A.2d at 451. "Candor and truthfulness are two of the most important moral character traits of a lawyer." Attorney Grievance Comm'n v. Myers, 333 Md. 440, 449, 635 A.2d 1315, 1319 (1994) (the proper sanction when an attorney "exhibited an absence of [candor and truthfulness] on not one, but two, occasions" was disbarment). "`When a lawyer lies to a tribunal, he or she violates a norm that warrants disbarment.'" Attorney Grievance v. Buehler, 441 Md. 237, 246, 107 A.3d 1152 (2014), quoting Attorney Grievance v. Fader, 431 Md. 395, 438, 66 A.3d 18, 43 (2013).
Mixter's pattern and practice has been to intentionally and knowingly mislead courts, witnesses and parties, and his interactions have brought disrepute to the legal profession. Mixter has made hundreds of repeated misrepresentations, to include: falsely asserting in the twenty-four motions listed in Appendix 3 that the oppositions were properly served with subpoenas outside of Maryland; falsely certifying in the fifty-three certifications listed in Appendix 6 that he had engaged in good faith efforts at resolving discovery disputes; willfully omitting material information in connection with the twelve motions listed in Appendix 7; in Alemu, by omitting from a Motion for Protective Order to preclude the opposition from taking a de bene esse deposition of an expert, return correspondence from opposing counsel indicating that attempts had been made to resolve the dispute; in the Byrne-Egan litigation, writing a letter to Judge Motz, in the United States District Court for the District of Maryland, in which he "knowingly and intentionally mischaracterized and misrepresented" the content of the opposition's motion; in the Byrne-Egan litigation, also failing to inform the court, in his response to the court's show cause order for contempt, that a motion for a protective order as to the third-party defendant's mental health records was pending when he sought those same records; in the Davis litigation, filing a false affidavit in the United States District Court for the District of Maryland in which he asserted that the defendants had been properly served with copies of the complaint; in Fitzgerald, by omitting from his Motion to Compel medical records from the United States Department of Health and Human Services letters he had received from the Department notifying him that he was required to first obtain the patient's consent for the release of the documents; in the Gonzales litigation, by omitting from his Motion to Compel the production of documents from Mr. Fagan correspondences from Mr. Fagan indicating that he had previously turned the requested documents over to Mixter's opposition; in Green, writing letters to the clerk of the court demanding that hearings on at least five motions were required while omitting that the opposition had requested that the motions be ruled on without hearings and that several of the motions were not yet ripe; in the Johnson litigation, sending a letter to the clerk of the court "informing
Contrary to Mixter's assertion, a finding of misappropriation of client funds is not a prerequisite to disbarment. In Steinberg, 395 Md. 337, 910 A.2d 429, the attorney violated Rules 3.3, 4.1 and 8.4(c) by making several false statements of material fact, to include: misrepresenting in a Motion to Reconsider an order granting a trustees' sale that his client had not been notified of the sale when, in fact, the client had been duly notified; misrepresenting to opposing counsel that his client refused to be deposed when the client made no such objection; and informing opposing counsel and his client, following Steinberg's discharge, that he had filed a motion to withdraw, which he had not done until months later. We disbarred Steinberg in light of his numerous misrepresentations.
Underlying Myers, 333 Md. 440, 635 A.2d 1315, where we also disbarred an attorney without a finding of misappropriation, were the attorney's repeated acts of misrepresentation. Myers had previously been suspended from the practice of law for lying to Bar Counsel during an investigation. After his reinstatement, Myers falsely testified before a district court judge regarding his driving history. We opined that, what set Myers apart from those instances where an attorney had committed a single isolated misrepresentation and not been disbarred, was that both instances of Myers's misconduct involved misrepresentation, in violation of Rules 3.3(a)(1) and 8.4(c).
Most recently, in Buehler, a reciprocal discipline case, we noted that "Buehler's gravest transgressions are his repeated misrepresentations." Buehler, 441 Md. at 246, 107 A.3d 1152. We disbarred Buehler in light of his repeated misrepresentations to the court as well has his failure to appear at scheduled hearings, his pursuit of meritless proceedings and his failure to notify Bar Counsel of disciplinary proceedings against him in another jurisdiction; there was no finding of misappropriation.
Although Mixter urges as discipline a second reprimand, in cases of dishonesty we have imposed significant "time out" from the practice of law, as acknowledged in Dore and Geesing, cases suggested by Mixter, in which significant mitigation was present. In Dore, we suspended the attorney for ninety days, rather than imposing a greater sanction, "because of the many mitigating circumstances", to include:
In Geesing, we also recognized the existence of a number of significant mitigating factors. Once Geesing became aware that it was improper to authorize staff members to sign documents in his name in foreclosure filings, he took immediate remedial action, to include: e-mailing his entire firm to inform them he would no longer "robo-sign"; recommending that his firm, at its own expense, dismiss the foreclosure actions and re-file them with appropriate documents (at a cost of over $12,000); identifying about 2,500 actions in which he recommended that he be allowed to file a "corrective affidavit" at a cost of about $140,000; and reporting himself to the Attorney Grievance Commission. Geesing, 436 Md. at 60-62, 80 A.3d at 720-22. Geesing, finally, "showed remorse for his misconduct, not merely because of the attorney disciplinary proceeding, but mainly because he dishonored his profession and disappointed his partners and his family, and because others may view the judicial process negatively as a result of his misconduct." Id. at 62, 80 A.3d at 722.
In this case, in which Mixter has made hundreds of misrepresentations without remorse or attempt to rectify his transgressions, and has, instead, attempted to excuse his abusive discovery practices, disbarment is the appropriate sanction.
Respondent Mark T. Mixter is hereby disbarred from the practice of law in the State of Maryland.
Judge HARRELL joins the judgment only.
Since 2011, for a litigant outside of Pennsylvania to obtain a deposition from a party within Pennsylvania, "a party must submit a foreign subpoena to [the chief clerk] in the jurisdiction in which the person who is the subject of the order resides, is employed or regularly transacts business in person." 42 Pa. Cons.Stat. § 5335(a) (2011).
S.C. R. Civ. P. 28(d)(1) (2010). On April 1, 2010, new legislation was enacted, which requires only that "a party must submit a foreign subpoena to the clerk of court of the county in which discovery is sought to be conducted in this State." S.C.Code Ann. § 15-47-120(A) (2010).
Judge Gorsuch of the United States Court of Appeals for the Tenth Circuit recently echoed the sentiments of the Maryland Judicial Task Force, observing that trial judges regularly "live and breathe [discovery] problems; they have a strong situation sense about what is and isn't acceptable conduct", and when discovery disputes evolve into discovery abuses, the merits of the case are forgotten and the time and resources of the parties and attorneys are needlessly wasted:
Lee v. Max Int'l, LLC, 638 F.3d 1318, 1320, 1321 (10th Cir.2011). Maryland Rule 1-201(a) contains an aspirational purpose as well when it states, "These rules shall be construed to secure simplicity in procedure, fairness in administration, and elimination of unjustifiable expense and delay."
Appendix 1 is a case list, describing each case and Respondent's role therein; Appendix 2 contains a list of all sixty-two motions directed at non-party witnesses Judge Doory found to be frivolous; Appendix 3 lists the twenty-four motions directed at out-of-state witnesses that Judge Doory determined to be frivolous; Appendix 4 is a list of thirty-five subpoenas Judge Doory determined had been improperly directed at out-of-state witnesses; Appendix 5 contains forty-two motions directed at an opposing party that Judge Doory determined had been frivolous; Appendix 6 lists fifty-three instances in which Judge Doory found that the Respondent had knowingly filed a false certification of good faith efforts to resolve a discovery dispute; and Appendix 7 contains twelve instances in which Judge Doory found Respondent had made misrepresentations to a court by omitting from his motions communications with opposing counsel or witnesses regarding discovery disputes.
The twenty-two cases included 20 cases in the Maryland court system:
The two other cases were filed in the United States District Court for the District of Maryland:
The impact of Mixter's actions were felt in the Circuit Courts for Anne Arundel, Baltimore, Charles, Montgomery, Prince Georges and Washington Counties, as well as the Circuit Court for Baltimore City and the United States District Court for the District of Maryland.
(emphasis in the original, internal citations omitted). At a motions hearing on a number of open discovery motions before the Circuit Court, the hearing judge set the deposition date for Mixter to complete his examination of Dr. Barnes.
(footnote omitted).
In Steinberg, the attorney "engaged in a pattern of delay" by failing to return phone calls and letters and cited "cryptic excuses for [his] lack of communication," causing "the scheduling of hearings or meetings without Steinberg's cooperation or input." 395 Md. at 365, 910 A.2d at 446. Steinberg also "displayed an unwillingness to comply with discovery", by cancelling depositions the evening before they had been scheduled. Id. at 366, 842 A.2d at 446. Steinberg's failure to communicate and unwillingness to comply with discovery violated Rule 3.2.
