Attorney Grievance Com'n v. Kent

• Decision Date: 01 September 1993
• Docket Number: No. 48,48
• Citation: 337 Md. 361,653 A.2d 909
• Parties: ATTORNEY GRIEVANCE COMMISSION v. Michael Gayhart KENT. Misc. (Subtitle BV),,
• Court: Maryland Court of Appeals

Page 361

337 Md. 361

653 A.2d 909

ATTORNEY GRIEVANCE COMMISSION v. Michael Gayhart KENT.

Misc. (Subtitle BV), No. 48, Sept. Term, 1993.

Court of Appeals of Maryland.

Feb. 10, 1995.

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

Edward Smith, Jr., Baltimore, for respondent.

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

RAKER, Judge.

In this disciplinary proceeding, the Attorney Grievance Commission, acting through Bar Counsel, charged the respondent, Michael Gayhart Kent, with violations of Rule 1.7 (Conflict of Interest: General Rule), Rule 3.3 (Candor Toward the Tribunal), Rule 3.4 (Fairness to Opposing Party and Counsel), Rule 4.2 (Communication with Person Represented by Counsel), and Rule 8.4 (Misconduct) of the Maryland Rules of Professional Conduct. These charges stem from respondent's representation of Paul Holland and Anthony Gray, defendants in a first degree murder, robbery, and rape case in Calvert County, Maryland. Bar Counsel recommends that respondent be disbarred from the practice of law.

Pursuant to Maryland Rule BV9(b), we referred this matter to Judge Robert J. Woods of the Circuit Court for Calvert County, to make findings of facts and conclusions of law in accordance with Maryland Rule BV11(a). After a three-day evidentiary hearing, Judge Woods found that respondent had violated Rules 1.7, 3.4(c), 4.2, and 8.4(d), but that he had not violated Rule 3.3(a). Both Bar Counsel and respondent filed exceptions to the findings.

I.

Following the evidentiary hearing held on April 11-13, 1994, Judge Woods found the following uncontested facts:

"The Respondent, Michael G. Kent, was born in Calvert County, Maryland. He was admitted to the Bar of this Court on June 26, 1985. Upon graduation from law school, Respondent worked for Baltimore City State's Attorneys Office until 1987. In 1987, he came to work for a short time with the State's Attorneys Office in Prince George's County. He then opened up his own office in Calvert County, Maryland, at 3720 Solomons Island Road, Huntington, Maryland 20639. His intentions were to come back home where his family and friends were and to help the minority population in Calvert County. Around 1988 he joined the Federal Public Defenders panel. He initially practiced in Calvert County and Baltimore City. As his work progressed in Calvert County, he took less work from Baltimore City.

"On May 13, 1991, Linda Mae Pellicano was robbed, raped, and murdered in her home in Calvert County, Maryland. The initial investigation of the crime by the authorities revealed that a suspect in the murder was allegedly a caucasian male. Subsequently, the police circulated a composite photograph of the suspect in the local newspaper of Calvert County, from May 1991 until the first week of June 1991.

"Mr. Anthony Gray later made statements to the police which implicated himself and Mr. Paul Holland and Mr. Leonard Long. Mr. Gray, Mr. Holland, and Mr. Long were subsequently charged with having committed these crimes.

"In August 1991, Respondent was contacted by Mr. Holland and Mr. Holland's father to represent him. Beginning in August 1991, Mr. Gray was represented by Ms. Cristina Gutierrez.

"Ms. Gutierrez entered into plea negotiations with the State's Attorney, Warren Sengstack, which resulted in an agreement that Mr. Gray would plead guilty to first degree murder and first degree rape, and that he would testify against Mr. Long and Mr. Holland. Because of a lack of physical evidence connecting the Defendants to the crime, Mr. Gray's testimony was essential to the State's case against Long and Holland. On October 7, 1991, Mr. Gray entered a guilty plea pursuant to the plea agreement. Ms. Gutierrez intended to file a motion for reconsideration of Mr. Gray's sentence after Mr. Gray's promised testimony in the cases against Holland and Long. Although the State made no promises with regard to the sentencing of Mr. Gray, it was understood that if Mr. Gray testified as promised the State would not oppose a reduction of sentence from life to a life sentence with all but 30 years suspended.

"On October 24, 1991, Respondent visited and spoke to Mr. Gray without the permission of his attorney, Ms. Gutierrez. Respondent also visited Mr. Gray twice on October 31, 1991 and once on December 7, 1991, all while Mr. Gray was represented by Ms. Gutierrez (Petitioner's exhibits 9 & 10). On October 31, 1991, Mr. Gray wrote a letter to Judge Rymer which stated:

Mike Kent told me what the everydine [sic] was my case. My law never told me told thank. I'm not guset [sic] I was never at that lady house. I want to parte not gus [sic]. I want a new law. (Petitioner's exhibit 7).

"Respondent testified that it was he who gave Mr. Gray the paper to write the letter. Respondent also delivered Mr. Gray's letter to the Court on October 31, 1991. Mr. Gray sent a second letter to Judge Rymer on November 25, 1991, again denying criminal responsibility (Petitioner's exhibit 8). Respondent also had several conversations with Mr. Gray by telephone during the time Ms. Gutierrez was representing him.

"After Mr. Sengstack learned of Respondent's meeting with Mr. Gray, the State filed a Motion for Protective Order to prohibit Respondent from communicating with Mr. Gray. At the hearing on that motion held on November 18, 1991, Respondent testified that he had believed that Ms. Gutierrez no longer represented Mr. Gray (Petitioner's exhibit 11). Respondent also testified that he called Ms. Gutierrez's office and left a message prior to meeting with Mr. Gray (Petitioner's exhibit 11). Ms. Gutierrez states that Respondent never left a message for her prior to his meeting. Respondent's testimony is uncorroborated by any other source.

"After the Court entered the protective order, Respondent had at least one more conversation with Mr. Gray, on December 7, 1991, regarding the case, without the knowledge or permission of Ms. Gutierrez (Petitioner's exhibits 9 & 10).

"After his conversations with the Respondent, Mr. Gray refused to testify against Mr. Long and Mr. Holland. On December 16, 1993, Ms. Gutierrez withdrew her appearance per Mr. Gray discharged her and Mr. Gray retained Respondent to represent him in an attempt to withdraw his guilty plea. Mr. Kent entered his appearance on December 23, 1991. Respondent represented Mr. Gray from December 23, 1991 until January 20, 1992, while Respondent was still representing Mr. Gray's co-defendant, Mr. Holland. Respondent did not explain to Mr. Gray the conflict of interest inherent in the dual representation (April 12, 1994, Vol. III, pages 609-610).

"As a result of Mr. Gray's refusal to testify against his co-defendants, Mr. Long and Mr. Holland were acquitted of all charges. The Circuit Court denied Mr. Gray's motion to withdraw his guilty plea on February 21, 1992. On February 27, 1992, the Court imposed two life sentences, to be served concurrently.

"Respondent again entered his appearance for Mr. Gray on March 16, 1992, and filed an application for leave to appeal on behalf of Mr. Gray. That application for leave to appeal was denied by the Court of Special Appeals. Respondent never filed a motion to modify Mr. Gray's life sentence."

The hearing judge made additional factual findings, which we shall summarize. As a result of Gray's written and multiple oral statements that Holland had raped and stabbed Ms. Pellicano, there existed irreconcilable differences between Gray and Holland. The hearing judge further found that on October 28, 1991, Gray openly admitted his involvement in the Pellicano murder and gave no suggestions that he was not fully satisfied with his attorney, Ms. Gutierrez. Since there was no physical evidence against Holland, Gray's testimony was crucial to the State's case against Holland. Judge Woods found that the letter Gray wrote and gave to respondent was intended to be used by respondent as evidence to impeach Gray in the event that Gray testified against Holland. He made the finding that as a result of respondent's visits and contacts with Gray, Gray did not testify against Holland. Judge Woods also found that Gray's interest was impaired because his failure to testify resulted in the loss of the opportunity to have his sentence reduced.

After making findings of fact, Judge Woods made conclusions of law. He found by clear and convincing evidence that respondent violated Rules 1.7, 3.4(c), 4.2, and 8.4(d). Judge Woods found that he violated Rule 1.7 ¹ because the interests of Gray and Holland were adverse. Judge Woods concluded that respondent violated Rule 1.7 by failing to properly consult with his clients about the representation and by failing to adequately explain the conflict of interest and obtain the consent of his clients to the joint representation.

Judge Woods found that respondent violated Rules 3.4(c) and 4.2. ² He found that by meeting with Gray without first seeking the permission of his attorney, providing Gray with paper to write a letter to Judge Rymer, and continuing to meet with Gray after the court issued a protective order banning communication with him, respondent committed multiple violations of these rules. The court also found that these actions were a violation of Rule 8.4(d) ³ because they constituted conduct prejudicial to the administration of justice. He found that as a result of respondent's conduct, Gray, a crucial witness for the State, did not testify against Holland.

Judge Woods found that respondent had not violated Rule 3.3(a). ⁴ He concluded that in light of testimony by respondent that he was not trying to mislead the court when he testified on November 18, 1991, and in the absence of any action by Judge Rymer indicating that the court felt respondent was not candid at that hearing, respondent had not violated Rule 3.3(a).

In his conclusion, Judge Woods commented...