Disbarred Now; Reasons To Follow
The Maryland Court of Appeals has disbarred an attorney and indicated that a written opinion will follow in due course.
The attorney was the subject of an earlier disciplinary action in 2010, when the court suspended him for 60 days for a criminal offense.
The majority in the earlier case
In terms of aggravation, we are aware that this is not Marcalus’s first sanction by the AGC. Marcalus was suspended indefinitely in 2007, with the right to apply for reinstatement after thirty days.
Yet we must look at Marcalus’s crime in context. On a spectrum of controlled dangerous substance distribution offenses, Marcalus’s crime is relatively minor. This lawyer possessed a legitimate prescription for Vicodin, a medicine “frequently prescribed for mild to moderate pain.” He gave one pill of vicodin to Michelle in return for oral sex. At some time within the past five years, he also gave Vicodin to Denise, a woman he knew. These actions violated CL Section 5-602. But they are of a fundamentally different character than if he did this regularly or he was peddling his prescription pills to the public.
Perhaps more importantly, Marcalus’s misconduct likely would never have come to light had he not volunteered the information that led to the complaint against him. He did so, by all accounts, in order to help the individual who was his client until a short time before Marcalus’s disclosure to the police. The evidence shows that Marcalus believed that his client had been wrongfully charged with rape by the same woman with whom he had engaged in a Vicodin-for-sex exchange. Marcalus’s effort to help his client was out of the ordinary, in that he willingly placed his own self-interest in jeopardy in order to serve his client’s interests. His choice to reveal those actions evinced no selfishness; to the contrary, it demonstrated a willingness to prioritize his client’s interests ahead of his own. There is no indication that Marcalus profited by his statements, tangibly or intangibly. Many other attorneys in Marcalus’s place may have lacked the fortitude to make this disclosure, given the potential risk to themselves. Such voluntary disclosure strongly mitigates against a harsh punishment for Marcalus’s actions.
From the dissent
Considering Marcalus’s disciplinary track-record, his solicitation of a personal benefit in this case, and the potential for future harm to the public, I find more aggravating factors than mitigating factors in the present case than were present in Smith and Floyd. As such, I believe that a stronger sanction should be imposed than the Majority does. Accordingly, I would suspend indefinitely Marcalus, with the right to reapply for reinstatement in no sooner than 6 months.
(Mike Frisch)