Attorney Grievance Com'n v. Joehl

• Decision Date: 01 September 1993
• Docket Number: No. 12,12
• Citation: 335 Md. 83,642 A.2d 194
• Parties: ATTORNEY GRIEVANCE COMMISSION v. Jeffrey Thomas JOEHL. Misc. (Subtitle BV),,
• Court: Maryland Court of Appeals

Page 83

335 Md. 83

642 A.2d 194

ATTORNEY GRIEVANCE COMMISSION v. Jeffrey Thomas JOEHL.

Misc. (Subtitle BV), No. 12,

Sept. Term, 1993.

Court of Appeals of Maryland.

June 7, 1994.

Melvin Hirshman, Bar Counsel, and James P. Botluk, Asst. Bar Counsel for the Atty. Grievance Com'n of Maryland, for petitioner.

Durke G. Thompson, Chevy Chase, for respondent.

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

KARWACKI, Judge.

In a petition filed in this Court on April 19, 1993, the Attorney Grievance Commission charged Jeffrey Thomas Joehl, the respondent, a member of the Bars of this State and of the District of Columbia, with professional misconduct. The allegations arose primarily out of certain representations and omissions made by Joehl in connection with his application for admission to the Bar of this State. The petition alleged that Joehl had violated Rules 8.1, 8.4(b), 8.4(c), and 8.4(d) of the Maryland Rules of Professional Conduct. ¹ On April 21, 1993, pursuant to Maryland Rule BV9(b), we ordered that the charges and pleadings be transmitted to Judge William M. Cave of the Circuit Court for Montgomery County for hearing. That hearing was held on September 2, 1993, and Judge Cave's findings of fact and conclusions of law were filed in this Court on January 26, 1994. We quote extensively from that document:

"Respondent submitted an application for registration as a candidate for admission to the Bar of Maryland, dated February 12, 1991. Subsequently, respondent executed an oath, dated November 12, 1991, that all of the matters and facts contained in the original questionnaire were true and correct and no changes had taken place which would reflect unfavorably on his qualifications to be admitted as a member of the Maryland Bar.

"Attached to respondent's application was a list of traffic offenses entitled, 'Traffic Proceedings,' which appears to be a summary taken from this Motor Vehicle Administration traffic record with a number of the entries deleted, showing only the charge and disposition.

"On September 5, 1991, the respondent was interviewed by Donna Jacobs, Esq., on behalf of the Character Committee of the State Board of Law Examiners. Ms. Jacobs was apparently concerned about the extensive nature of his driving record and asked the respondent about that record. The respondent assured Ms. Jacobs that he had become a more responsible driver. He, however, did not inform her that he had three additional convictions for exceeding the speed limit in June ² of 1990, and had been issued an additional citation on March 9, 1991. Nor did he reveal convictions of other traffic offenses outside of the State of Maryland. The respondent further failed to disclose any of the suspensions before the Motor Vehicle Administration.

"On March 19, 1991, shortly after receiving the citation for exceeding the speed limit by 30 miles an hour, respondent went to Colorado, turned in his Maryland driver's license and applied for and received a Colorado driver's license. He then returned to Maryland to complete his final semester of law school. The respondent has testified under oath that at the time he applied for a Colorado license, it was his intention to take the Maryland Bar and then return to Colorado as a permanent resident thereof.

"It is a little difficult to understand why it was necessary to apply for the Colorado license until such time as he actually moved to Colorado, unless it was for the purpose of obtaining a Colorado driver's license before his Maryland license would be suspended.

"Respondent was born in Colorado. Accordingly, despite possible inferences to the contrary, it is conceivable that he did have the intention to return to Colorado at the time he applied for that license. However, without question, there came a time that he did not return to Colorado, and knew or should have known that a Maryland driver's license was required because he was remaining in the State of Maryland. He nonetheless did not turn in his Colorado license nor did he attempt to get a Maryland license or have his privileges restored.

"In 1987, respondent was charged with the crime of battery. That charge was subsequently nol prossed and respondent would have been entitled to have the matter expunged. At the time of the application to the Bar, however, the matter had not been expunged and respondent was required to list it on his application.

"It seems apparent that instead of being totally candid on his application and character interview, the respondent treated that which could have been done as in fact having been done.

"... Now, based on his attitude and demeanor before this Court, the Court is of the opinion that respondent has matured substantially and recognizes the requirement that he be completely candid.

"Bar counsel has also cited the respondent for the guilty plea on January 7, 1992, for the charge of possession of marijuana. Despite the guilty plea, respondent received a disposition pursuant to Article 27, Section 641 [probation before judgment]. The Court is satisfied from the testimony from the respondent that he did not knowingly possess the marijuana. That on the date in question, December 28, 1991, the clothes and marijuana belonged to his wife.

"The Court is further satisfied that the guilty plea was pursuant to the plea bargain to obtain the disposition under Article 27, Section 641."

Based on these findings of fact, Judge Cave reached the following conclusions of law:

"[R]espondent has not violated Rule 8.4(b) because the [guilty plea to the charge of possession of marijuana] was not a criminal act that reflected adversely on a lawyer's honesty, trustworthiness or fitness. Nor did he violate Section (c) or (d) of Rule 8.4 after he was admitted to the Bar."

With respect to Joehl's driving record and battery charge, Judge Cave concluded that "it is doubtful that these would have prevented respondent from being admitted to the Bar. Respondent's sin of omission was greater than his sin of commission." The judge held further:

"As previously noted, the Court does find that respondent did fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter or knowingly failed to respond to a lawful demand for information from an admission or disciplinary authority as required by Rule 8.1(b). There was, at the very least, a technical violation."

Bar Counsel filed exceptions to portions of the findings of fact and conclusions of law and recommended that, as an appropriate sanction, Joehl be disbarred. Joehl filed no exceptions to Judge Cave's findings and conclusions, but suggested that if a sanction is required, the appropriate sanction is a reprimand.

I

We observe as a preliminary matter that this Court has original and complete jurisdiction over attorney disciplinary proceedings. Attorney Griev. Comm'n v. Powell, 328 Md. 276, 287, 614 A.2d 102, 108 (1992) and cases cited therein; Md. Rule BV9(b). When factual findings are in dispute, we will give deference to a hearing judge's findings "unless they are clearly erroneous, 'giving due regard to the trial court's opportunity to assess the credibility of the witnesses.' " Attorney Griev. Comm'n v. Goldsborough, 330 Md. 342, 356, 624 A.2d 503, 509 (1993) (quoting Powell, 328 Md. at 287-88, 614 A.2d at 108). See also Attorney Griev. Comm'n v. Kemp, 303 Md. 664, 674, 496 A.2d 672, 677 (1985). Nevertheless, as we stated in Powell, "the ultimate decision as to whether an attorney has or has not been guilty of misconduct is to be made by us." 328 Md. at 287, 614 A.2d at 108 (quoting Attorney Griev. Comm'n v. McBurney, 282 Md. 116, 122, 383 A.2d 58, 61-62 (1978)). Applying this standard, we will review the exceptions filed by Bar Counsel.

II

Bar Counsel contends, among other things, that the trial court erred in failing to address whether Joehl made misrepresentations to the inquiry panel when he testified before it in December, 1992. Although this charge was included in the original Petition for Disciplinary Action, Judge Cave did not address it in his findings of fact. Ordinarily, such a failure to address an issue might require a remand to the trial court, but in view of the uncontroverted testimony in the case sub judice, we are convinced that there is no genuine issue of fact to be decided.

Joehl testified before the inquiry panel that he was not aware his driver's license was suspended at the time he received three speeding citations in July, 1990 and when he was arrested on December 28, 1991, for possession of marijuana. ³ The relevant testimony before the panel consists of the following:

"MR. BOTLUK: Was your license suspended when you received the three citations in July of 1990?

"MR. THOMPSON: Same objection. He may answer if he knows, but.

"MR. JOEHL: I don't know.

"MR. NALLS: He says he doesn't know.

"MR. JOEHL: I would assume not, though, that it was not suspended.

"MR. BOTLUK: And what do you base that assumption on?

"MR. JOEHL: Well, just looking at the record. First of all there's no, I wasn't charged with it and second of all, I avoid driving when my driver's license is suspended."

According to Joehl's driving record, however, a 180-day suspension was imposed following a hearing on March 23, 1990. Joehl's license was surrendered to the MVA on that same day. Moreover, when asked at trial if he was in attendance at the March 23, 1990 hearing, Joehl replied, "Yes. If there was any hearing, yes, I would be there." Joehl further stated, in reply to an inquiry as to whether he surrendered his license on that day, "Again I don't recall specifically the specific hearing or--but if the record so reflects, then yes." No reasonable individual could believe that a 24-year-old healthy college graduate with postgraduate legal education ⁴ did not know four months after personally attending a hearing and surrendering his driver's license to authorities,...