Attorney Grievance Com'n of Maryland v. Gittens

• Decision Date: 01 September 1995
• Docket Number: No. 48,48
• Citation: 697 A.2d 83,346 Md. 316
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. James P. GITTENS. Misc.(Subtitle BV),,
• Court: Maryland Court of Appeals

Page 316

346 Md. 316

697 A.2d 83

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. James P. GITTENS.

Misc.(Subtitle BV), No. 48, Sept. Term, 1995.

Court of Appeals of Maryland.

July 25, 1997.

Melvin Hirshman, Bar Counsel, and Raymond A. Hein, Assistant Bar Counsel, for the Attorney Grievance Commission of Maryland, for Petitioner.

Thomas G. Bodie, Towson, for Respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, RAKER and WILNER, JJ.

BELL, Chief Judge.

The Attorney Grievance Commission of Maryland, the petitioner, acting through Bar Counsel, filed against James P. Gittens, the respondent, a Petition For Disciplinary Action Pursuant to Rule BV16c. ¹ In that petition, noting the respondent's conviction in federal court of theft and that this Court earlier had suspended the respondent pursuant to BV16b ², it alleged that the respondent, by violating RULE 8.4(B) AND (C) OF THE MARYLAND RULES OF PROFESSIONAL CONDUCT³, did engage in misconduct as defined in Maryland Rule BV1k. ⁴ We referred the matter to Judge Ronald A. Silkworth of the Circuit Court for Anne Arundel County for hearing. After holding a hearing, Judge Silkworth made findings of fact and conclusions of law, the former by the clear and convincing standard, as follows:

"FINDINGS OF FACT

"1. The Respondent, James P. Gittens was admitted to the Maryland Bar on October 27, 1988.

"2. The Respondent also has been or is admitted to the Bars of the following courts: District of Columbia Court of Appeals, from which he is currently suspended; Supreme Court of Pennsylvania; United States District Court for the District of Maryland, from which he is currently suspended; and the United States District Court for the District of Columbia, in which his status is inactive and in which he was ordered not to practice without permission.

"3. Respondent primarily practiced in the District of Columbia.

"4. That on January 5, 1994, Respondent was charged in a nine-count indictment in the United States District Court for the District of Columbia with violations of 18 U.S.C. § 1341 (Mail Fraud); 18 U.S.C. § 2 (Aiding and Abetting); 22 D.C.Code §§ 3811 and 3812 (First Degree Theft); and 22 D.C.Code § 3901 (Theft Against a Person Aged Sixty or Older).

"5. That on September 21, 1994, pursuant to a plea agreement by which Respondent pled guilty to Count 4 of the Indictment and all other counts were dismissed, judgment was entered against Respondent on one count of first degree theft against a person sixty or older. The Respondent was sentenced to imprisonment for a term of not less than 18 months nor more than 54 months.

"6. The actions for which Respondent was convicted before the U.S. District Court for the District of Columbia were theft of a client's funds entrusted to him and held in his escrow account.

"7. Respondent abused alcohol on weekends beginning in college, later began to use drugs, and became addicted to cocaine in the late 1980's.

"8. After depleting most of his personal assets in order to purchase cocaine to satisfy his addiction, Respondent began to withdraw money from his attorney's escrow account in order to purchase cocaine.

"9. Respondent did seek drug treatment and was an in-patient at the Psychiatric Institute of Washington in 1991.

"10. That, upon being released from the twenty-eight (28) day in-patient treatment at the Psychiatric Institute of Washington, Respondent participated in a six (6) month after-care program.

"11. That Respondent last used illegal drugs on or about March 13, 1992. He has been drug and alcohol free since March 13, 1992.

"12. That since the time of his last use of illegal drugs, Respondent has maintained steady employment and has complied with the rules and regulations of his probation officer.

"13. That Respondent has continued to actively participate in programs aimed at controlling his prior addictions to drugs and alcohol, including Narcotics Anonymous and Alcoholics Anonymous.

"14. That Respondent sought the professional care of Susan Feister, M.D., who gave her opinion that the cause of Respondent's violation of the Maryland Rules of Professional Conduct in taking his clients funds was his addiction to cocaine. The Court agrees.

"15. Dr. Feister gave her additional opinion that Respondent was in the highest percentile of those former addicts who, based on their behavior since the time of their addiction, would not resort at any time in the future to the use of abuse of illegal drugs. Respondent has, since 1991, counseled with Jerome Griffin, licensed clinical social worker, whom the Court considers an expert in regard to the counseling of addicted persons. The Court accepts the opinion of Dr. Griffin, that Respondent, due to his long period of abstinence and his responsibility, evidenced by his employment and care for his family, will not in the future likely abuse drugs or alcohol. Respondent has been able to maintain a balance in his life and work towards his rehabilitation since his release from the Lorton Reformatory for Males.

"16. That Respondent has counseled with Richard B. Vincent, Director of the Lawyer Counseling Committee of the Maryland State Bar Association. Mr. Vincent also believes that the cause of Respondent's misuse of client funds was his addiction. The Court agrees. Mr. Vincent also concurs that the Respondent, based upon his efforts at rehabilitation, is likely to continue drug free. He recommends an extended period of close monitoring.

"17. That Respondent has been enthusiastic and steadfast in his recovery and rehabilitation.

"18. That on March 10, 1996 pursuant to Maryland Rule BV 16b, the Court of Appeals of Maryland suspended Respondent from practicing law in Maryland pending further order.

"CONCLUSIONS OF LAW

"1. That the Respondent, by committing the acts that resulted in his criminal conviction, engaged in misconduct as defined in Maryland Rule BV1k.

"2. That the Respondent's acts of misconduct violated Maryland Rule of Professional Conduct 8.4, subsections (b) and (c)."

As the findings of fact indicate, the respondent is presently suspended from practicing law in the District of Columbia. The respondent was suspended following his sentencing, which occurred on September 21, 1994, and the suspension has been in effect since December 19, 1994, when the District of Columbia Court of Appeals passed the initial order, which order was amended by a subsequent order dated August 14, 1995.

Taking no exceptions to the hearing judge's findings of fact and conclusions of law, the petitioner recommends that the respondent be disbarred. In support of that recommendation, the petitioner emphasized that the charge to which the respondent pled guilty involved "an unauthorized use, disposition, and transfer" of $88,379.92 of money belonging to someone else, and thus was a misappropriation. This Court has made it quite clear, it points out, that misappropriation of funds entrusted to his or her care by an attorney "is an act infected with deceit and dishonesty and ordinarily will result in disbarment in the absence of compelling extenuating circumstances justifying a lesser sanction." Attorney Griev. Comm'n v. Williams, 335 Md. 458, 474, 644 A.2d 490, 497 (1994); Attorney Griev. Comm'n v. Casalino, 335 Md. 446, 644 A.2d 43, 46 (1994); Attorney Griev. Comm'n v. White, 328 Md. 412, 417, 614 A.2d 955, 958 (1992); Attorney Griev. Comm'n v. Bakas, 323 Md. 395, 403, 593 A.2d 1087, 1091 (1991); Attorney Griev. Comm'n v. Ezrin, 312 Md. 603, 608-09, 541 A.2d 966, 969 (1988). Recognizing that in the past this Court has imposed lesser sanctions, most frequently indefinite suspension, when it has been satisfied that the cause or a substantial part of the cause of the misconduct is alcoholism, drug addiction, psychiatric disorders, or the like, e.g., Attorney Griev. Comm'n v. Willemain, 297 Md. 386, 395-96, 466 A.2d 1271, 1275 (1983); Attorney Griev. Comm'n v. Finlayson, 293 Md. 156, 160, 442 A.2d 565, 567 (1982); Attorney Griev. Comm'n v. Flynn, 283 Md. 41, 45-47, 387 A.2d 775, 778 (1978); Attorney Griev. Comm'n v. Cooper, 279 Md. 605, 369 A.2d 1059 (1977), the petitioner reminds us that, in Attorney Griev. Comm'n v. Kenney, 339 Md. 578, 591, 664 A.2d 854, 860 (1995), we cautioned the Bar that "in the future, ... absent truly compelling circumstances, alcoholism should not provide mitigation where an attorney has been found to have committed a violation which would ordinarily warrant disbarment." The petitioner urges that this Court send the same message where the misconduct warranting disbarment was caused by drug addiction. Thus, it concludes as to the respondent's case, "[w]hile cocaine addiction may have "caused" the Respondent's misappropriation(s) in the sense that it created the motivation to steal client funds and other escrow monies to support his drug habit, that addiction should not serve as a mitigating circumstance justifying a disciplinary sanction less than disbarment." ⁵

Like the petitioner, the respondent has taken no exceptions to Judge Silkworth's findings of fact or conclusions of law. Instead, he urges this Court to adopt those findings and conclusions, find that his misconduct was caused by his cocaine addiction, and continue in effect his indefinite suspension from the practice of law. The respondent offers as justification for those actions his pre-cocaine record as an attorney, particularly noting that, at that time, his record was completely free of even the allegation of misconduct; the opinion of three professionals and Judge Silkworth that cocaine addiction was the reason that he engaged in misconduct; his thus far successful attempt to control his addiction, along with the opinion of the professionals who have helped him that he is not likely to abuse drugs and alcohol in the future; and the fact that he has been punished, including incarceration, as a result of the misconduct that is the basis for the petition for disciplinary action.

The conduct...