Attorney Grievance Comm'n of Md. v. Frost

• Decision Date: 26 February 2014
• Docket Number: Misc. Docket AG No. 69
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. JAMES ALBERT FROST
• Court: Court of Special Appeals of Maryland

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. JAMES ALBERT FROST

Misc. Docket AG No. 69

COURT OF APPEALS OF MARYLAND

Argued: January 13, 2014

September Term, 2012

Filed: February 26, 2014

Attorney Grievance Commission of Maryland v. James Albert Frost, Misc. Docket AG No. 69, September Term, 2012, Opinion by Greene, J.

ATTORNEY DISCIPLINE - Attorney's knowingly false statements impugning the integrity and qualifications of several judges and public legal officers constitute a violation of MLRPC 8.2(a) and are not protected speech under the First Amendment to the United States Constitution. Where an attorney makes repeated false allegations about the qualifications or integrity of "a judge, adjudicatory officer or public legal officer," without any explanation or investigation into the substance of those allegations, he has demonstrated a lack of fitness to practice law. Under the circumstances, the appropriate sanction for violations of MLRPC 8.1(b), 8.2(a), 8.4(a), (c) and (d) is disbarment.

Circuit Court for Anne Arundel County

Case No. 02-C-12-174606

Barbera, C.J.

Harrell

Battaglia

Greene

Adkins

McDonald

Watts,

JJ.

Opinion by Greene, J.

Adkins, J., concurs.

McDonald, J., concurs and dissents.

The Attorney Grievance Commission of Maryland ("Petitioner" or "Bar Counsel"), acting pursuant to Maryland Rule 16-751(a), filed a "Petition for Disciplinary or Remedial Action" against James Albert Frost ("Respondent" or "Frost"), on December 5, 2012. Petitioner charged Frost with violating various Maryland Lawyers' Rules of Professional Conduct ("MLRPC" or "Rule"), specifically Rule 8.1 (Bar Admission and Disciplinary Matters),¹ Rule 8.2(a) (Judicial and Legal Officials);² and Rule 8.4(a), (c) and (d) (Misconduct).³

Pursuant to Maryland Rule 16-752(a) (Order Designating Judge), this Court referred the matter to the Honorable Paul F. Harris of the Circuit Court for Anne Arundel County to conduct an evidentiary hearing and to render findings of fact and recommend conclusions of law pursuant to Maryland Rule 16-757. After Petitioner made reasonable attempts topersonally serve Respondent with a copy of the Petition for Disciplinary or Remedial Action and related papers, including discovery requests and a written request for admission of facts and genuineness of documents,⁴ Petitioner effectuated service on Respondent by serving the Client Protection Fund of the Bar of Maryland pursuant to Maryland Rule 16-753.⁵ Respondent filed no response to the Petition for Disciplinary Action and discovery requests, including the Requests for Admissions, prompting the hearing judge's entry of an order of default. See Md. Rule 16-754(c) (providing that the failure to file an answer shall be treated as a default).

On May 14, 2013, Judge Harris conducted a hearing on the merits. Respondent failedto appear for or participate in the hearing. During the brief hearing, Petitioner requested that all of Petitioner's Requests for Admissions, which went unanswered by Respondent, be deemed admitted. Judge Harris granted the request and accepted the Requests for Admissions into evidence. Thereafter, the hearing judge issued "Findings of Fact and Conclusions of Law," in which he found by clear and convincing evidence that Respondent's actions constituted violations of MLRPC 8.1(b), 8.2(a), 8.4(a), (c) and (d). In doing so, Judge Harris made the following findings of facts:

Respondent was admitted to the Maryland Bar on June 29, 1972. He does not maintain an office for the practice of law. On April 23, 2012, Respondent wrote an email to his ex-wife, stating, inter alia:

With regard to Case #110082-C, you know or should know that: (1) Ann S. Harrington, a lawless judge, arranged for deputy sheriffs of the Montgomery County, MD, Sheriff's Office to illegally arrest me on May 13, 2008, with no probable cause to do so and there by committed the crime under State of Maryland law of making a false report to an agency of the state with police powers; . . . (3) There was no basis in law or in fact for Judge Stephen P. Johnson, a weak man and corrupt judge acting under improper and political influence, to have me locked up in the county jail on a "no bond" order for 87 days and 87 nights but that's what was done; and (4) The crooked State's Attorney for Montgomery County, MD, John J. McCarthy, Esq., a protege of Douglas F. Gansler, Esq., the corrupt Attorney General of Maryland, and a political ally of Maryland Governor O'Malley, a pretty-boy hack politician, didn't let his assistant prosecutors drop the phon[y] charge against me until August 8, 2008.

With regard to Case #11041-C . . . you know or should know that the Maryland State Police deceived District Court of Maryland Commissioner Kaitlyn Boyle into signing a warrant to arrest me and then deceived Circuit Court Judge Joseph A. Dugan, Jr., into signing a search and seizure warrant by and through perjury on the warrant applications signed on August13, 2008, by Maryland State Trooper Michael Brennan, who was ordered to do that by Maryland State Police Captain Clifford T. Hughes, his supervisor, and Maryland State Police Superintendent Terence B. Sheridan, who were acting under improper and political influence exerted (through an intermediary) by Governor O'Malley and his wife, Judge of the District Court of Maryland for Baltimore City Catherine Curran O'Malley.

Respondent made the April 23, 2012 statements regarding the Honorable Ann S. Harrington, specifically calling her a "lawless judge" and accusing her of "arrang[ing] for deputy sheriffs of the Montgomery County, MD Sheriff's Office to illegally arrest [him]" knowing the statements to be false and with reckless disregard as to their truth or falsity. Respondent has no facts to support the statements made regarding Judge Harrington.

Respondent made the April 23, 2012 statements regarding the Honorable Stephen P. Johnson, Retired Judge for the District Court of Maryland for Montgomery County, specifically calling him "a weak man and corrupt judge acting under improper and political influence . . ." knowing the statements to be false and with reckless disregard as to their truth or falsity. Respondent has no facts to support the statement regarding Judge Johnson.

Respondent made the April 23, 2012 statement regarding John J. McCarthy, State's Attorney for Montgomery County, specifically calling Mr. McCarthy a "crooked" State's Attorney, knowing the statement to be false and with reckless disregard as to its truth or falsity. Respondent has no facts to support the statement regarding Mr. McCarthy.

Respondent made the April 23, 2012 statement regarding Douglas F. Gansler, Attorney General of Maryland, specifically calling Mr. Gansler "corrupt," knowing the statement to be false and with reckless disregard as to its truth or falsity. Respondent has no facts to support the statement regarding Mr. Gansler.

Respondent made the April 23, 2012 statement regarding Governor O'Malley, specifically that he exerted "improper" influence over members of the Montgomery County Police Department, knowing the statement to be false and with reckless disregard as to its truth or falsity. Respondent has no facts to support the statement regarding Governor O'Malley.

Respondent made the April 23, 2012 statement regarding the Honorable Catherine Curran O'Malley, Judge [for the] District Court of Baltimore City, specifically that she exerted "improper" influence over members of the Montgomery County Police Department, knowing the statement to be false and with reckless disregard as to its truth or falsity. Respondent has no facts to support the statement regarding Judge Curran O'Malley.

On or about May 2, 2012, Respondent mailed a copy of the April 23, 2012 email to George Meng, Esquire. Prior to May 2, 2012, Respondent had no relationship or communication with Mr. Meng. On or about May 2, 2012, Respondent forwarded a copy of the April 23, 2012 email to Paul Carlin, Esquire. On or about May 2, 2012, Respondent forwarded a copy of the April 23, 2012 email to Katherine Kelly Howard, Esquire.

On May 4, 2012, Mr. Meng emailed Respondent asking why the April 23, 2012 email was sent to him, directing him to Rule 8.2, 8.3 and 8.4 of the Maryland Lawyers' Rules of Professional Conduct and requesting a response as how the April 23, 2012 email did not violate Rules 8.2 and 8.4 and did not require reporting to Petitioner pursuant to Rule 8.3. On May 10, 2012, no response having been received to his May 4 email, Mr. Meng again emailed Respondent requesting a response to the questions posed on May 4, 2012. On May 18, 2012, Respondent emailed Mr. Meng stating, "You should have something from me in your mail Monday." On May 18, 2012, Respondent mailed Mr. Meng a letter directed to Chief of Police J. Thomas Manger, Montgomery County, Maryland. The May 18, 2012 letter did not, in any way, respond to the questions posed by Mr. Meng in his emails of May 4 and May 10. Mr. Meng received the May 18, 2012 letter on May 21, 2012. On May 21, 2012, Mr. Meng emailed Respondent again requesting a response to his May 4 and May 10 emails.

On May 23, 2012, no further communication having been received from Respondent, Mr. Meng filed a complaint with the Petitioner and enclosed: (1) Respondent's April 23, 2012 email, (2) Mr. Meng's May 4, 2012 email to Respondent, (3) Mr. Meng's May 10, 2012 email to Respondent, (4) Mr. Meng's May 18, 2012 email to Respondent, (5) Respondent's letter of May 1, 2012 to Chief of Police J. Thomas Manger, and (6) Mr. Meng's May 21, 2012 email to Respondent.

By letter dated July 11, 2012, Bar Counsel forwarded a copy of the May 23, 2012 complaint and enclosures to Respondent and requested a response thereto be provided, in writing, no later than July 27, 2012. Respondent received BarCounsel's July 11, 2012 letter and enclosures. On or about July 26, 2012, Respondent sent a letter to Bar Counsel stating: "The statements of mine concerning which objections have been presented to your office are protected from

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