Attorney Grievance Comm'n of Maryland v. Joseph, Misc. Docket AG No. 11

• Citation: 31 A.3d 137,422 Md. 670
• Decision Date: 18 November 2011
• Docket Number: Sept. Term,2010.,Misc. Docket AG No. 11
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Joel David JOSEPH.
• Court: Court of Appeals of Maryland

31 A.3d 137

422 Md. 670

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND

v.Joel David JOSEPH.

Misc. Docket AG No. 11

Sept. Term

2010.

Court of Appeals of Maryland.

Oct. 27, 2011.Reconsideration Denied Nov. 18, 2011.

Dolores O. Ridgell, Assistant Bar Counsel (Glenn M. Grossman, Bar Counsel, Attorney Grievance Commission of Maryland), for Petitioner.

Joel David Joseph, Beverly Hills, CA, for Respondent.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ^* MURPHY, ADKINS, and BARBERA, JJ.GREENE, J.

Pursuant to Maryland Rule 16–751,¹ the Attorney Grievance Commission of Maryland (“Petitioner”), acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action against Joel David Joseph (“Respondent”), charging him with professional misconduct arising out of representations made to the California Bar and third persons, regarding his residency in connection with applications for appearance pro hac vice in California's state and federal courts. Petitioner charged Respondent with violating Rules 3.3(a)(1),² 8.1(b),³ and 8.4(c) and (d) ⁴ of the Maryland Lawyers' Rules of Professional Conduct (“MRPC”). In accordance with Maryland Rule 16–752(a),⁵ we referred the matter to the Honorable Joseph A. Dugan, Jr. of the Circuit Court for Montgomery County, to conduct an evidentiary hearing and to render findings of fact and recommend conclusions of law. Judge Dugan held an evidentiary hearing on September 23, 2010, and in accordance with Maryland Rule 16–757(c) ⁶ rendered the following findings of fact and conclusions of law.

FINDINGS OF FACT

Respondent, Joel David Joseph, was admitted to the Maryland Bar on April 1, 1981. He is self-employed as an attorney and also works for the Made in U.S.A. Foundation, which he founded. He has a part-time “national practice” and has been admitted pro hac vice in 25 different jurisdictions, mostly federal courts, across the United States. In March 2007, Respondent contacted the Law Offices of Robert M. Moss, the law firm of a solo practitioner, located in Santa Monica, California. He spoke with Moss's office administrator and paralegal assistant, Suzanne Brewer. As the hearing judge recounted, “Respondent told Brewer that he was a Maryland attorney looking for local counsel to sponsor his admission pro hac vice and act as co-counsel in cases to be filed in California courts. Respondent told Brewer that he lived in Maryland, had an office in Maryland and had been practicing for years.” On March 23, 2007, Respondent and Moss entered into an Agreement to work together on two cases: Wartell v. United States and Pribyl v. K–2. Respondent already had retainer agreements with the plaintiffs in both cases.

The Wartell case was filed in the United States District Court for the Central District of California. A document entitled, “Application of Non–Resident Attorney to Appear in a Specific Case” was prepared and signed by Respondent, under the penalty of perjury, on or about May 10, 2007. The Application indicated that Respondent's “out-of-state business information” was as follows: Law Offices of Joel D. Joseph, 7272 Wisconsin Avenue, Suite 300, Bethesda, Maryland 20814. It also contained the following statement: “I am not a resident of, nor am I regularly employed, engaged in business, professional or other activities in the State of California. I am not currently suspended or disbarred in any court.” The Application indicated that Respondent was barred only in Maryland and that he was also admitted to practice before the Supreme Court of the United States and the United States Courts of Appeal for the 1st, 2nd, 4th, 6th, 7th, 9th, and 10th Circuits. Respondent gave the application to Brewer; it was then signed by Moss and filed on June 28, 2007.

The K–2 case was a class action suit filed in the Superior Court of California, County of Los Angeles. Brewer prepared the Application of Joel D. Joseph Pro Hac Vice, using the information provided by Respondent in the Wartell application. The application was dated June 15, 2007 and signed by both Respondent and Moss. The caption in the upper left hand corner of the Application indicated that the address for the Law Offices of Joel D. Joseph was 7272 Wisconsin Avenue, Suite 300, Bethesda, Maryland 20814. The application included the Declaration of Joel D. Joseph in Support of Pro Hac Vice Application, which was dated June 15, 2007 and signed under the penalty of perjury by Respondent. It represented, inter alia, that Respondent's out-of-state address was also 7272 Wisconsin Avenue, Suite 300, Bethesda, Maryland 20814. It also included the statement, “I am not a resident of, nor am I regularly employed, engaged in substantial business, professional or other activity in the State of California.” Both the application and the declaration were filed on June 19, 2007.

As the hearing judge stated:

On or about June 18, 2007, Brewer received a phone call from Brandie Burroughs of the Office of Special Admissions & Specialization of the State Bar of California, concerning Respondent's Application for Admission Pro Hac Vice in the K–2 case. Borroughs told Brewer that the California State Bar had the pro hac vice application[ ], but [it] provided a Maryland office address. [The Bar] wanted Respondent's residence address and would not approve the application[ ] until [it] had the address where Respondent lived. Brewer agreed to provide this information. Subsequently, Brewer received a form via facsimile from Burroughs. The form indicated that a residential address is a requirement according to Rule 9.40, and that a residential address for the out-of-state applicant was not included in the application.⁷

Brewer left the Respondent a telephone message informing him about the California State Bar's request. Brewer recalled that she left the following message: “We have to have your residence address, the address where you live.”

On or about June 21, 2007, Brewer received an email sent by Respondent to Moss. The email contained the following information: “My residence address in Maryland is 4938 Hampden Lane, Apt. 118, Bethesda, MD.” Brewer entered the information provided by Respondent on the form provided by the State Bar of California on the line indicating “Residential address f/Joel D. Joseph.” Although the email used the designation “Apt. 118,” Brewer wrote “# 118” on the memo. She testified that she did so because there was not a lot of room provided. Respondent then came into the office and signed the form. At that time, Brewer asked Respondent about the address and Respondent told her that it was an apartment where he lived with his girlfriend. Brewer then returned the form to the State Bar.

After the Wartell and K–2 filings, Moss and Respondent agreed to act as co-counsel in a class action in which Moss already represented a plaintiff, John Doe v. Panera LLC. This case was also filed in the Superior Court of the State of California for the County of Los Angeles. On or about November 6, 2007, Brewer prepared an Application for Admission Pro Hac Vice for Respondent's admission in the Panera case. She again used the information previously provided by Respondent. The caption in the upper left hand corner of this document provided that the Law Offices of Joel D. Joseph had an address of 4938 Hampden Lane, Suite 118, Bethesda, Maryland 20814. Brewer used this address because Respondent told her that he was not only living at that address with his girlfriend but was also working out of the apartment.

A document titled Declaration of Joel D. Joseph in Support of Pro Hac Vice Application was also included with this Application. The Declaration was also signed by Respondent under the penalty of perjury. The Declaration contained the representations that: “My out-of-state address is as follows: Law Offices of Joel D. Joseph, 4938 Hampden Lane, Suite 118, Bethesda, Maryland 20814” and that “I am not a resident of, nor am I regularly employed, engaged in substantial business, professional or other activity in the State of California....” The Application and Declaration were filed by Brewer on November 18, 2007, with the Superior Court.

In early June, 2007, Brewer learned that Respondent maintained an apartment located on Ocean Avenue in Santa Monica, California. The apartment came to Brewer's attention when she arranged for her husband to pick Respondent up and drive him to a mediation hearing in a case Moss was handling for her husband. Brewer was familiar with the building and believed it had small units and catered to people that stayed there temporarily. Respondent told Brewer that he rented the apartment because it was cheaper than staying in a hotel when he came to California several times a month.

Moss moved his law practice to another office in December 2007. The testimony of Ms. Brewer clarifies that the new office was within a suite of offices that Mr. Moss owned in the same building. At that time, Respondent agreed to rent office space from Moss. Respondent occupied that space from December 1, 2007 until mid-October 2008. Brewer's testimony revealed that she was able to see Respondent come and go from the office from where she did her work for Mr. Moss. The hearing judge found that Respondent came into the office sporadically, sometimes he would be gone for a week or ten days and other weeks he would be in the office every day.

In early May 2008, Brewer received a phone call from opposing counsel in the Panera case. The caller told Brewer that Respondent's name did not appear on the online list of members of the Maryland Bar.

The hearing judge found that Brewer called Respondent and told him that he was not in good standing with the Maryland Bar, and Respondent told Brewer he did not pay his “bar dues” and would take care of it. Moss was distressed about Respondent's failure to remain in good standing with the Maryland Bar because his admission in the California cases was conditioned on his good standing in Maryland. About a...