Attorney Grievance Comm'n of Md. v. McDonald

• Decision Date: 21 February 2014
• Docket Number: Sept. Term, 2012.,Misc. Docket AG No. 38
• Citation: 437 Md. 1,85 A.3d 117
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. John Mark McDONALD.
• Court: Maryland Court of Appeals

437 Md. 1

85 A.3d 117

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND

v.John Mark McDONALD.

Misc. Docket AG No. 38, Sept. Term, 2012.

Court of Appeals of Maryland.

Feb. 21, 2014.

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

David G. Whitworth, Esq. (Whitworth Smith LLC, Edgewater, MD), for respondent.

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

HARRELL, J.

John Mark McDonald was admitted to the Bar of this Court on 13 December 1995. After serving as an Assistant State's Attorney in Kent, Talbot, and Queen Anne's Counties, McDonald was appointed Deputy State's Attorney for Queen Anne's County in January 2003. On 12 September 2012, the Attorney Grievance Commission (the “Commission”), acting through Bar Counsel, filed against McDonald a Petition for Disciplinary or Remedial Action (the “ Petition”), pursuant to Maryland Rule 16–751(a)(1). The Petition alleged that McDonald engaged in a pattern of misconduct related to an “inappropriate relationship” between him and Melissa Knotts, the former office manager for the State's Attorney's Office for Queen Anne's County (the “Office”), by using improperly his position to “fix” traffic citations issued to Knotts as a personal favor to Knotts, facilitating knowingly Knotts taking leave to which she was not entitled, interfering with the criminal investigation and prosecution of Knotts for embezzling funds from the Office, and deleting (without proper authority) emails from Knotts's former work computer the day after her employment was terminated. Based on the alleged pattern of misconduct, the Petition charged McDonald with violations of the Maryland Lawyers' Rules of Professional Conduct (“MLRPC”) 8.4(a),¹ 8.4(b), ² 8.4(c),³ and 8.4(d).⁴

The matter was referred to a judge who was specially assigned to the Circuit Court for Queen Anne's County for hearing and the filing of findings of fact and proposed conclusions of law. An evidentiary hearing, spanning five non-consecutive days of testimony and argument, commenced in the Circuit Court on 10 January 2013 and concluded on 31 January 2013.

For reasons explained here, based on the evidence received during the evidentiary hearing, our due consideration of the hearing judge's Memorandum of Findings of Fact and Proposed Conclusions of Law, and the Exceptions and Recommendations for Sanctions of the parties, we disbar McDonald from the practice of law in Maryland.

I.

A. The Hearing Judge's Findings of Fact

The hearing judge filed a Memorandum of Findings of Fact and Proposed Conclusions of Law on 16 April 2013. We summarize the hearing judge's findings of fact based on the categories of misconduct alleged by Bar Counsel.

1. Ticket Fixing

Bar Counsel's admitted evidence (credited by the hearing judge) reflected that, on five occasions between December 2008 and April 2011, McDonald entered (or arranged for the entry of) dispositions of nolle prosequi for traffic citations issued to Knotts. During their respective consecutive tenures as the State's Attorney for Queen Anne's County, Frank M. Kratovil, Jr. (now a judge of the District Court of Maryland) and Lance G. Richardson maintained the same policy regarding motor vehicle citations or criminal charges involving employees of the office, which policy required immediate self- reporting by any employee who received a citation or was charged, so that the State's Attorney could determine whether the use of a special prosecutor was necessary, and “did not permit an attorney from abusing the office he or she holds by entering a nolle prosequi on charges or citations as a favor to employees....” Although McDonald cross-examined Richardson regarding exceptions to this policy against showing favoritism to employees, each of the instances brought up by McDonald were deemed to be “vastly different than what occurred with the citations issued to Knotts.” Any claim by McDonald that the Office had a policy of showing favoritism to employees in regards to citations or charges was found by the hearing judge to be “without merit.” McDonald's explanation that he entered, or caused to be entered, nolle prosequi for Knotts's citations in exchange for information she provided about ongoing drug investigations, in conformity with a policy or practice of the Office to encourage such exchanges, was not credible. In an email McDonald sent to Knotts on 29 April 2010, he listed favors he performed for her, including “ [f]ive fixed tickets.” The hearing judge found ultimately that “each nolle prosequi entered by the Respondent or at his behest for traffic citations issued to Knotts was done as a personal favor to her and without any legitimate business purpose.” Based on these findings, the hearing judge concluded, by clear and convincing evidence, that McDonald violated MLRPC 8.4(a) and (d).

2. Interference with the Prosecution of Knotts for Embezzlement

The hearing judge considered Bar Counsel's evidence regarding McDonald's alleged interference with Knotts's embezzlement prosecution by looking: first, at his alleged attempts to intimidate or corrupt the State's witnesses against Knotts; next, at McDonald's alleged attempts to influence Steven Trostle, the Special Prosecutor assigned to prosecute the case against Knotts; and, finally, at McDonald's alleged obstruction of justice regarding the Knotts prosecution.

Attempts to intimidate or corrupt the State's witnesses

The hearing judge made three factual findings regarding Bar Counsel's evidence tendered to prove McDonald's alleged attempts to intimidate or corrupt the State's witnesses against Knotts. The first finding was that McDonald's choice to resign from the Office shortly before a murder trial he was scheduled to prosecute was not an attempt to influence Richardson by forcing him to choose between conceding to McDonald's wishes regarding the Knotts prosecution or being left in the lurch on the murder trial. The hearing judge found credible McDonald's explanation that he left the Office as Deputy when he did because he felt he could not return to the Office if he testified in support of Knotts's anticipated Motion to Enforce Plea Agreement in the criminal case arising from her theft from the Office. Second, the judge found that certain text messages sent by McDonald to Richardson did not rise to the level of a threat. Third, she resolved that statements made by McDonald to Robert Penny, an investigator for the Office, and April Pyle, an administrative assistant for the Office, that the Office would “go down” if Knotts “went down,” were not threats, but were efforts to protect the Office from looking bad if Knotts's defense attorney filed the anticipated Motion to Enforce Plea Agreement. The hearing judge concluded that “[a]lthough [McDonald] was clearly trying to influence the outcome of Knotts's criminal case and acted inappropriately in his quest to do so, the testimony does not establish that he tried to intimidate or corrupt Richardson and Penny.”

Attempts to influence Trostle

The hearing judge reached a similar outcome regarding the evidence surrounding McDonald's interactions with Trostle. In response to Bar Counsel's allegations that McDonald urged Trostle to be lenient with Knotts and attempted to influence Trostle's prosecutorial decision-making, the hearing judge concluded that “although [McDonald] attempted to influence the outcome of the Knotts prosecution, his actions in that regard—however inappropriate as they may have been—do not rise to the level of attempting to intimidate or corrupt an officer of the court.”

Alleged Obstruction of Justice

The hearing judge made the following factual findings concerning whether McDonald's actions regarding the embezzlement prosecution of Knotts constituted obstruction of justice. Promptly following McDonald's meeting with Richardson and Penny on the day Knotts confessed to the embezzlement, at which meeting he agreed not to involve himself in Knotts's prosecution, McDonald: (1) told Penny there was a problem with the Miranda advisements Penny gave Knotts; (2) called Penny to ask whether criminal charges would be filed and, when Penny answered in the affirmative, “asked Penny to call Richardson to dissuade him from filing charges and went so far as to suggest that the county's human resources office be contacted and a meeting arranged to resolve the issues without the necessity of filing criminal charges”; and, (3) asked about the amount of restitution due. On 6 July 2011, the day that criminal charges were filed against Knotts, McDonald called repeatedly the police sergeant who was on his way to serve Knotts with the criminal summons and also emailed Richardson to ask what would happen to the charges if restitution were paid immediately (implying that he thought Knotts could pay it right away). Between July 6 and July 15 of 2011, McDonald, while employed still as the Deputy State's Attorney, asked R. Stewart Barroll, Esq., a local attorney, to represent Knotts in the embezzlement case. McDonald stated that he would see to it that any fees related to the representation would be paid. McDonald also represented to Barroll that a plea agreement had been reached already and, thus, his representation of Knotts would more than likely involve only the sentencing.

From 15 July 2011 until 8 September 2011 (the day McDonald resigned), McDonald had “daily or near-daily communications” with Richardson, Penny, and Pyle about the Knotts prosecution. “By way of example, [McDonald] sought information about the status of the case, questioned how the case would proceed and how the matter was being handled by the Special Prosecutor.” McDonald contacted Trostle to ask, among other things, if he would be seeking an indictment of Knotts and, if so, whether McDonald could be contacted at that time so he could assist Knotts in surrendering herself and being released as soon as...