Maryland Court Rejects Trial Judge’s Dishonesty And Failure To Cooperate Findings

The Maryland Court of Appeals has imposed an indefinite suspension for an attorney’s ethics lapses in a client representation that was ongoing when he was appointed as an Administrative Law Judge.

Richard A. Moore, II (“Respondent”), was admitted to the Bar of this Court on June 28, 1990. Beginning in 1990, Respondent served as an Assistant State’s Attorney in Prince George’s County for approximately nineteen years. Respondent left the State’s Attorney Office in 2009 and entered into private practice as a solo-practitioner. Respondent’s practice consisted of criminal defense, personal injury matters, and family law matters. On March 18, 2013, Respondent was placed on exempt status based on his appointment as an Administrative Law Judge.

The court sustained some violations found by the hearing judge and rejected others

The hearing judge conducted an evidentiary hearing on April 15, 2016. Thereafter, the hearing judge issued Findings of Fact and Conclusions of Law, maintaining that the evidence was clear and convincing, that Respondent violated MLRPC 1.1, 1.2(a), 1.3, 1.4(a) and (b), 1.16 (a) and (d), 8.1(a) and (b), and 8.4(a), (c), and (d). Respondent filed exceptions to the hearing judge’s findings of fact and conclusion of law. We conclude that the hearing judge’s conclusions as to violations of Rules 1.1, 1.2(a), 1.3, 1.4(a) and (b), 1.16(a), and 8.4(a) and (d) were supported by clear and convincing evidence and overrule Respondent’s exceptions. We hold, however, that the record lacks clear and convincing evidence to sustain Respondent’s violations of Rules 8.1(a) and (b) and 8.4(c).

Notably, the court rejected the allegation that the attorney knowingly testified  falsely.

The hearing judge failed to articulate the basis from which he believed that Respondent’s deposition testimony was a knowing and intentional misrepresentation. Respondent testified at his deposition that to his recollection, he had the conversation terminating his representation of Ms. Covington sometime in late February or early March. Ms. Covington testified at her deposition that the conversation did not occur until late May, and there is undisputed telephone record evidence showing that Ms. Covington called Respondent at the end of May, and that she continued to call him several times between then and September 2013. If the hearing judge reached his conclusion based upon his determination that Ms. Covington was the more credible witness, he did not specifically articulate so. Even if the hearing judge specifically concluded that Ms. Covington was the more credible witness and that the conversation took place in May, such evidence only pertains to a finding of when the conversation took place and not whether Respondent knowingly misrepresented the facts. The evidence may be clear and convincing to prove that Respondent made a misrepresentation as to the time that the conversation took place, however, the record lacks clear and convincing evidence that Respondent made such representation with present knowledge of its falsity because Respondent testified that it was his recollection that the conversation had taken place at an earlier time…

The hearing judge’s factual finding that Respondent knowingly and intentionally misrepresented the facts is conclusory and is not supported by the evidence. Such conclusory reasoning does not satisfy the clear and convincing evidentiary standard. Accordingly, we sustain Respondent’s exception to the hearing judge’s factual finding that Respondent knowingly and intentionally made a misrepresentation in his deposition testimony.

The evidence failed to establish that the attorney made false statements to Bar Counsel

we find the record lacks clear and convincing evidence that Respondent violated Rule 8.1(a). Although Respondent should not have relied upon his memory of the events in drafting his Response to Bar Counsel, we find such conduct to amount to, at most, a negligent misrepresentation of the facts. We note that Respondent should have kept notes and should have memorialized in writing his communications with Ms. Covington, especially the communication at issue regarding the termination of representation. We further note that Respondent should have reviewed whatever documents he possessed in the Covington case file prior to responding to Bar Counsel. However, the evidence in this case reveals Respondent’s misrepresentation as to the time and content of the conversation he had with Ms. Covington was, at most, the result of sloppy organization and a lack of diligence in obtaining accurate information to convey to Bar Counsel. Nothing in the record rises to the level of clear and convincing evidence that Respondent knowingly misrepresented the facts to Bar Counsel.

And this significant legal conclusion

The hearing judge also found that Respondent violated Rule 8.1(b) because on multiple occasions, Bar Counsel made more than one request for information due to Respondent’s delay in responding to initial requests. Although the evidence is undisputed that Respondent failed to timely respond to Bar Counsel, Respondent did eventually respond to every request for information made by Bar Counsel. Rule 8.1(b) imposes no time limit. The Rule simply provides that an attorney shall not “knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority[.]” MLRPC 8.1(b). We hold that the record lacks clear and convincing evidence that Respondent violated Rule 8.1(b) and sustain this exception.

Sanction

Respondent excepts to the hearing judge’s omission of the presence of mitigating factors. Specifically, Respondent draws this Court’s attention to the fact that although, at the time of the violation, Respondent had been a member of the Bar for over twenty years, Respondent had little experience in the field of civil matters as most of his career was spent working for the State’s Attorney Office. Moreover, Respondent was a relatively new solo practitioner at the time he took Ms. Covington’s case. We overrule Respondent’s exception to the hearing judge’s omission as to these factors because under ABA Standard 9.32, the relevant factor is “inexperience in the practice of law[,]” not within a particular area of practice. Respondent’s limited experience in the civil law area does not render him inexperienced in the practice of law generally. Moreover, Ms. Covington’s case did not present a complex claim but was rather a simple personal injury case. Finally, Respondent asks this Court to note that no prejudice occurred to Ms. Covington’s case as Ms. Covington was able to obtain a satisfactory settlement of her claim. This mitigating factor weighs against a more severe sanction because it demonstrates a lack of actual harm to the client. We find support for this mitigating factor based upon a preponderance of the evidence and affirm Respondent’s exception as to its omission by the hearing judge.

We conclude that this case is similar to Mooney and therefore hold that the appropriate sanction in this case is an indefinite suspension with the right to reapply for admission after ninety days. The indefinite suspension shall begin thirty days after the issuance of this opinion.

The Mooney precedent may be found here. 

Video of oral argument before the court is linked here. 

Before the court, Bar Counsel sought disbarment and attempted to save the dishonesty findings with contentions that (as I heard it) improperly sought to shift the burden of proof to the accused attorney.

The court properly rejected Bar Counsel’s contentions as to both the misconduct and appropriate sanction. (Mike Frisch)