Attorney Grievance Comm'n of Md. v. Mixter

Decision Date02 February 2015
Docket NumberMisc. Docket AG No. 7,Sept. Term, 2013.
Citation109 A.3d 1,441 Md. 416
PartiesATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Mark Thomas MIXTER.
CourtMaryland Court of Appeals

?441 Md. 416
109 A.3d 1

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
Mark Thomas MIXTER.

Misc. Docket AG No. 7, Sept. Term, 2013.

Court of Appeals of Maryland.

Feb. 2, 2015


Disbarment ordered.

Harrell, J., joined in judgment only.

[109 A.3d 3]

Lydia E. Lawless, Asst. Bar Counsel (Glenn M. Grossman, Bar Counsel, Attorney Grievance Commission of Maryland), for petitioner.

Michael J. Budow, Esq. (Anne K. Howard, Bethesda, MD), for respondent.


Argued before BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, McDONALD and WATTS, JJ. 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

I. Introduction

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), 1 filed a “Petition For Disciplinary or Remedial Action” against

[109 A.3d 4]

Respondent, alleging that Mixter engaged in a “pattern and practice that is outside the bounds of zealous representation, in direct defiance of the Discovery Guidelines of the State Bar, contrary to the Rules of Civil Procedure and in violation of the Maryland Lawyers' Rules of Professional Conduct.” Violations were alleged of the following Maryland Lawyers' Rules of Professional Conduct (“Rule”): 3.1 (Meritorious Claims and Contentions), 2 3.2 (Expediting litigation),3 3.3 (Candor Toward the Tribunal),4 3.4 (Fairness to Opposing Party and Counsel),5 4.1 (Truthfulness in Statements to Others),6 4.4 (Respect for Rights

[109 A.3d 5]

of Third Persons),7 5.3 (Responsibilities Regarding Nonlawyer Assistants),8 8.1

[109 A.3d 6]

(Bar Admission and Disciplinary Matters) 9 and 8.4 (Misconduct).10

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 16–757.11 On August 22, 2013, at the

[109 A.3d 7]

request of Judge Marcella Holland, Circuit Administrative Judge for the Eighth Judicial Circuit, this case was reassigned to Judge Timothy J. Doory.

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),12 4.1(a), 4.4(a) and 8.4(a), (c) and (d), but not Rules 5.3(c) and 8.1.13

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 14 certificates, we provide an overview of the applicable Maryland Rules.

Subpoenas, according to Maryland Rule 2–510(a),15 may be issued “to compel a

[109 A.3d 8]

party over whom the court has acquired jurisdiction to attend, give testimony, and produce and permit inspection [and] copying ... of designated documents ... or tangible things at a deposition,” the service of which is “permitted by Rule 2–121(a)(3)”.16 Maryland Rule 2–121(a)(3) provides that service may be accomplished by mailing by certified mail, restricted delivery, and that service “by certified mail under this Rule is complete upon delivery.” “If service is by certified mail, the proof shall include the original return receipt.” Maryland Rule 2–126(a)(3). When a deposition subpoena is issued which calls for the production of documents, Maryland Rule 2–412(c) provides that, “the designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice and the subpoena shall be served at least 30 days before the date of the deposition.” 17

Furthermore, according to Maryland Rule 2–413(a)(1),18 a non-party witness

[109 A.3d 9]

only may be required to attend a deposition “in the county in which the person resides or is employed or engaged in business, or at any other convenient place fixed by order of court.” A party to an action, on the other hand, “may be required to attend a deposition wherever a nonparty could be required to attend or in the county in which the action is pending.” Maryland Rule 2–413(b).

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:

[Rule 2–413] is conceptually a venue rule providing for the place where a deposition is taken. It is limited by the judicial power of the courts to compel appearance or to sanction nonappearance. As a practical matter, a nonresident nonparty may be compelled to attend a deposition only to the extent he or she is subject to a body attachment, i.e., is present in the state. See Rule 2–510(i). A party's deposition may be noticed for a location in the county where the action is pending, whether or not the party is a resident of that county. This is because the party has been subjected to the judicial power of the court when initially served with process in the action under Rule 2–121. The party who is a resident of the State may be deposed in the county in which the party resides or works as well.

With respect to a nonparty, there are fewer appropriate locations. The nonparty who is a resident may be deposed in the county where he or she lives or works. A nonresident, on the other hand, cannot be forced to give a deposition in this State at all unless served with a subpoena while in this State. If the nonresidence is served in this State, the deposition may be taken in the county of service or within 40 miles of the place of service. If not served with a subpoena while in this State, the nonresident will have to be deposed in his or her own state under its rules.

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),19 Florida (2008, 2009, 2011), 20 Iowa (2009, 2010),21 North Carolina

[109 A.3d 10]

(2010),22 Pennsylvania (2008, 2009, 2010),23 South Carolina (2009, 2010), 24 Texas (2012),25 Virginia (2007, 2009, 2010, 2011) 26 and Washington D.C. (2007, 2008, 2009, 2010, 2012).27 Several states have in the

[109 A.3d 11]

past required, or continue to require, the issuance of a “commission” to take a deposition pursuant to litigation in another state. A “commission” is a court order that authorizes the judiciary of another state to issue a subpoena to the witness who is located in that state. See Forensic Advisors, Inc. v. Matrixx Initiatives, Inc., 170 Md.App. 520, 525, 907 A.2d 855, 857 (2006).

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. 28 First, the party requesting the records may submit written assurance to the health care provider that “a person in interest has not objected to the disclosure of the designated medical records within 30 days after the notice [that medical records had been requested] was sent” to the patient.29 Section 4–306(b)(6)(i)(1)(B). In the event that there had been an objection to disclosure of the health care records, the party seeking disclosure could provide written certification to the health care provider that the objection had been resolved and that the new request complies with the terms of the resolution to the objection. Section 4–306(b)(6)(i)(1)(C). The health care service provider also could be afforded proof that the court in which the litigation is pending has waived service of a subpoena for the production of documents to the provider for good cause. Section 4–306(b)(6)(i)(2). The fourth possibility is to submit to the health care provider a copy of a court order expressly authorizing disclosure of the designated medical records. Section 4–306(b)(6)(i)(3).

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,

[109 A.3d 12]

“unless the attorney seeking action by the court has filed a certificate describing the good faith attempts” to resolve the dispute with opposing counsel. The attorney must certify that he or she had been unable to reach an agreement with the opposition on the disputed issues and must “include the date, time, and circumstances of each discussion or attempted discussion.”

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...

To continue reading

Request your trial
2 cases
  • Attorney Grievance Comm'n of Md. v. Mixter
    • United States
    • Court of Special Appeals of Maryland
    • 2 d1 Fevereiro d1 2015
    ...441 Md. 416109 A.3d 1ATTORNEY GRIEVANCE COMMISSION OF MARYLANDv.Mark Thomas MIXTER.Misc. Docket AG No. 7, Sept. Term, 2013.Court of Appeals of Maryland.Feb. 2, 2015.109 A.3d 3Lydia E. Lawless, Asst. Bar Counsel (Glenn M. Grossman, Bar Counsel, Attorney Grievance Commission of Maryland), for......
  • Attorney Grievance Comm'n v. Portillo
    • United States
    • Court of Special Appeals of Maryland
    • 27 d4 Maio d4 2021
    ...where the attorney engaged in similar misconduct in representing two clients in different matters); Attorney Grievance Comm'n v. Mixter, 441 Md. 416, 530 (2015) ("Factor (d), 'multiple offenses,' is implicated when an attorney violates multiple disciplinary rules."). Further, the hearing ju......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT