Attorney Grievance Comm'n of Md. v. Mixter

• Decision Date: 02 February 2015
• Docket Number: Misc. Docket AG No. 7, Sept. Term, 2013.
• Citation: 441 Md. 416,109 A.3d 1
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Mark Thomas MIXTER.
• Court: Court of Special Appeals of Maryland

441 Md. 416
109 A.3d 1

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
Mark Thomas MIXTER.

Misc. Docket AG No. 7, Sept. Term, 2013.

Court of Appeals of Maryland.

Feb. 2, 2015.

109 A.3d 3

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

Michael J. Budow, Esq. (Anne K. Howard, Bethesda, MD), for respondent.

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

BATTAGLIA, J.

Table of Contents

I.	Introduction	3
II.	Judge Doory's Findings of Fact	17
III.	Judge Doory's Conclusions of Law	34
IV.	Discussion	38

A.	Mixter's Exceptions to Judge Doory's Findings of Fact	39
B.	Mixter's Exceptions to Judge Doory's Conclusions of Law	57
C.	Sanction	68

V. Appendices 75

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I. Introduction

Mark T. Mixter, Respondent, was admitted to the Bar of this Court on November 20, 1980. On March 26, 2013, the Attorney Grievance Commission, (“Petitioner” or “Bar Counsel”), acting pursuant to Maryland Rule 16–751(a),¹ filed a

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“Petition For Disciplinary or Remedial Action” against

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Respondent, alleging that Mixter engaged in a “pattern and practice that is outside the bounds of zealous representation, in direct defiance of the Discovery Guidelines of the State Bar, contrary to the Rules of Civil Procedure and in violation of the Maryland Lawyers' Rules of Professional Conduct.” Violations were alleged of the following Maryland Lawyers' Rules of Professional Conduct (“Rule”): 3.1 (Meritorious Claims and Contentions),² 3.2 (Expediting litigation),³ 3.3 (Candor Toward the Tribunal),⁴ 3.4 (Fairness to Opposing Party and Counsel),⁵

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4.1 (Truthfulness in Statements to Others),⁶ 4.4 (Respect for Rights

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of Third Persons),⁷ 5.3 (Responsibilities Regarding

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Nonlawyer Assistants),⁸ 8.1

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(Bar Admission and Disciplinary

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Matters)⁹ and 8.4 (Misconduct).¹⁰

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In an Order dated March 28, 2013, we referred the matter for a hearing to Judge Melissa Phinn of the Circuit Court for Baltimore City, pursuant to Maryland Rule 16–757.¹¹ On August 22, 2013, at the

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request of Judge Marcella Holland,

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Circuit Administrative Judge for the Eighth Judicial Circuit, this case was reassigned to Judge Timothy J. Doory.

On May 31, 2013, a copy of the Petition, our Order and a writ of summons was served on Mixter's counsel to which Mixter filed an Answer in which he denied all of Bar Counsel's allegations. A five-day hearing was held before Judge Doory, during which voluminous exhibits from both parties were admitted, the majority of which included Mixter's files from the various cases in which his actions occurred, as well as testimony from expert and lay witnesses; the latter included character witnesses called by Mixter. Judge Doory, on June 9, 2014, issued Findings of Fact and Conclusions of Law in which he found, by clear and convincing evidence, that Mixter had violated Rules 3.1, 3.2, 3.3, 3.4(a), (c), (d) and (f),¹² 4.1(a), 4.4(a) and 8.4(a), (c) and (d), but not Rules 5.3(c) and 8.1.¹³

For an understanding of the bases of Judge Doory's findings that Mixter had filed various frivolous motions and made misrepresentations in connection with unenforceable subpoenas, as well as that Mixter made misrepresentations to various courts in relation to Maryland Rule 2–431¹⁴ certificates, we provide an overview of the applicable Maryland Rules.

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Subpoenas, according to Maryland Rule 2–510(a),¹⁵ may be issued “ to compel a

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party over whom the court has acquired jurisdiction to attend, give testimony, and produce and permit inspection [and] copying ... of designated documents ... or tangible things at a deposition,” the service of which is “permitted by Rule 2–121(a)(3)”.¹⁶ Maryland Rule 2–121(a)(3) provides that service may be accomplished by mailing by

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certified mail, restricted delivery, and that service “by certified mail under this Rule is complete upon delivery.” “If service is by certified mail, the proof shall include the original return receipt.” Maryland Rule 2–126(a)(3). When a deposition subpoena is issued which calls for the production of documents, Maryland Rule 2–412(c) provides that, “the designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice and the subpoena shall be served at least 30 days before the date of the deposition.”¹⁷

Furthermore, according to Maryland Rule 2–413(a)(1),¹⁸ a non-party witness

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only may be required to attend a deposition “in the county in which the person resides or is employed or engaged in business, or at any other convenient place fixed by order of court.” A party to an action, on the other hand, “may

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be required to attend a deposition wherever a nonparty could be required to attend or in the county in which the action is pending.” Maryland Rule 2–413(b).

Because “the subpoena powers of the State of Maryland stop at the state line”, (Attorney Grievance v. Gallagher, 371 Md. 673, 702, 810 A.2d 996, 1013 (2002), quoting Bartell v. Bartell, 278 Md. 12, 19, 357 A.2d 343, 347 (1976) ), when the deposition of, and/or documents from, a non-party outside of Maryland is sought, the dictates “of the place where the deposition is held” must be followed. Maryland Rule 2–413(a)(2). The intersection of Maryland Rules 2–413(a)(1), (a)(2) and (b) has been described as:

[Rule 2–413 ] is conceptually a venue rule providing for the place where a deposition is taken. It is limited by the judicial power of the courts to compel appearance or to sanction nonappearance. As a

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