Attorney Grievance Comm. v. White

• Citation: 731 A.2d 447,354 Md. 346
• Decision Date: 10 June 1999
• Docket Number: No. AG 81
• Parties: ATTORNEY GRIEVANCE COMMISSION v. Elvira M. WHITE (Two Cases).
• Court: Court of Appeals of Maryland

731 A.2d 447

354 Md. 346

ATTORNEY GRIEVANCE COMMISSION v. Elvira M. WHITE (Two Cases).

Nos. AG 81, Sept. Term, 1997, AG 42, Sept. Term, 1998.

Court of Appeals of Maryland.

June 10, 1999.

Melvin Hirshman, Bar Counsel and Glenn M. Grossman, Deputy Bar Counsel, for the Atty. Grievance Com'n of Maryland.

Edward Smith, Jr., Baltimore, for Respondent.

Argued before BELL, C.J., ELDRIDGE, RODOWSKY, RAKER, WILNER, CATHELL, and THEODORE G. BLOOM (retired, specially assigned), JJ. CATHELL, Judge.

Bar Counsel, on behalf of the Attorney Grievance Commission, petitioner, filed two petitions for disciplinary action against respondent, Elvira M. White. In the first petition, Number 81, Bar Counsel represented and charged that respondent had violated Rule 3.4 (Fairness to opposing party and counsel),¹ and Rule 8.4 (Misconduct),² of the Maryland Rules of Professional Conduct (Rule or Rules). In petition Number 42, Bar Counsel represented and charged that respondent had violated Rule 3.3 (Candor toward the tribunal),³ and Rule 8.4. We referred the charges in both petitions to the Circuit Court for Baltimore City, requesting it to conduct a consolidated hearing and report its findings of facts and proposed conclusions of law to this Court.

With respect to petition Number 81, the circuit court found by clear and convincing evidence that respondent violated Rule 3.4(a) and Rule 8.4(c) and (d). Similarly, with regard to petition Number 42, the circuit court found that respondent violated Rule 3.3(a)(1) and (4) and Rule 8.4(b), (c), and (d). Respondent filed exceptions to the circuit court's findings and conclusions. Bar Counsel did not file any exceptions and recommended that respondent be disbarred. We shall overrule respondent's exceptions and order that she be disbarred.

I. Petition Number 81

Respondent was admitted as a member of the Maryland Bar on May 27, 1980. She maintained a part-time civil practice from approximately 1981 until July 1990. Respondent also was employed as a full time public defender in Prince George's County beginning approximately July 1, 1981.

In March 1995, respondent filed a civil suit in the United States District Court for the District of Maryland against the Public Defender for the State of Maryland alleging employment discrimination. The case was tried before a jury, the Honorable Peter J. Messitte presiding. The jury could not arrive at a verdict and the judge granted a mistrial. The Public Defender filed a renewed Motion for Sanctions, seeking a dismissal of the case with prejudice. Judge Messitte granted the motion and entered final judgment in favor of the defendant Public Defender. He found specifically:

1. the [r]espondent engaged in an action of destruction of parts of an autobiographical manuscript, a substantial portion of which covered events bearing on her claims before the court;

2. that she lied in her July, 1996 deposition when she stated that she had destroyed the entire manuscript;

3. that she knowingly and wilfully intended to destroy discoverable and relevant evidence, and that her statements to the contrary were not believable, and

4. that her testimony that she did not understand what it was that defense counsel was asking for was fatuous and not worthy of belief.

Respondent appealed the district court's decision, but failed to prosecute that appeal in a timely manner, and it was dismissed.

Judge Messitte referred the matter of respondent's actions during the litigation to the Disciplinary Committee of the United States District Court for possible sanctions. The Disciplinary Committee determined that a formal disciplinary proceeding should be instituted against respondent. A panel of three district court judges was appointed to hear the matter. When respondent appeared before the panel, she sought to present testimony challenging Judge Messitte's findings. The panel declined to allow this and prevented her from relitigating the factual issues that had been decided against her by the trial court, stating that the factual findings "are final and binding on her, and she is now collaterally estopped from challenging them by witnesses or otherwise." The panel noted that the proper process for her to seek a review of those factual findings would have been to follow through with the appeal. The panel found that respondent violated Rules 3.4(a) and 8.4(c) and (d) of the Maryland Rules of Professional Conduct. It then recommended to the judges of the full court that respondent be suspended indefinitely from the practice of law in the United States District Court. The full court accepted the recommendation, and respondent was suspended indefinitely from practice in that court on September 26, 1997.

Based upon the findings, conclusions, and sanctions imposed by the United States District Court, Bar Counsel filed in this Court a petition for disciplinary action, Number 81, for reciprocal discipline pursuant to Maryland Rule 16-710e.1.⁴ The circuit court, in its Proposed Findings of Fact and Conclusions of Law, noted that respondent again attempted to present testimony to dispute the factual findings of the federal trial court. The circuit court, pursuant to Maryland Rule 16-710e.1, declined to permit her to do so. The circuit court then made the same findings as to respondent's conduct before the United States District Court as described, supra. The circuit court concluded:

Based on the rule ... and the absence of any evidence showing cause why she should not be disciplined in the reciprocal matter, this court finds that there was a final adjudication by the United States District Court for the District of Maryland, and that such adjudication is conclusive proof of the misconduct of the [r]espondent.

Respondent excepts to the circuit court's findings and proposed conclusions of law, claiming for the third time that Judge Messitte erred in sanctioning her and that the panel should not have suspended her. She argues that "[t]he extraordinary circumstances of this case warranted that [r]espondent be heard in challenging the wisdom of the United States District Court in suspending her." Respondent further explains:

Instant counsel for the [r]espondent both at the hearing before the United States District Court and herein attempted to attack this error ridden finding, but was rebuffed by both tribunals. Unlike Attorney Grievance v. Richardson, 350 Md. 354, 712 A.2d 525 (1998), [r]espondent was never afforded the opportunity to defend herself against the bully tactics employed in the decision by the federal court due to the incompetent act of her counsel and the fact that she had not been notified of her appeal's dismissal.

We said in Attorney Grievance Commission v. Richardson, 350 Md. 354, 365-68, 712 A.2d 525, 530-32 (1998):

This case is a reciprocal discipline case. In such cases, "[a] final adjudication in a disciplinary proceeding by a judicial tribunal ... that an attorney has been guilty of misconduct is conclusive proof of the misconduct in the hearing of charges pursuant to this Rule." Rule 16-710(e). See Attorney Griev. Comm'n v. Gittens, 346 Md. 316, 324, 697 A.2d 83, 87 (1997)

; Attorney Griev. Comm'n v. Willcher, 340 Md. 217, 221-22, 665 A.2d 1059, 1061 (1995); Attorney Griev. Comm'n v. Saul, 337 Md. 258, 267-68, 653 A.2d 430, 434 (1995); Attorney Griev. Comm'n v. Hopp, 330 Md. 177, 185-86, 623 A.2d 193, 197 (1993); Attorney Griev. Comm'n v. Sparrow, 314 Md. 421, 425-26, 550 A.2d 1150, 1152 (1988); Attorney Griev. Comm'n v. Parsons, 310 Md. 132, 142-43, 527 A.2d 325, 330 (1987); Attorney Griev. Comm'n v. Haupt, 306 Md. 612, 614-15, 510 A.2d 590, 591-92 (1986); Attorney Griev. Comm'n v. Bettis, 305 Md. 452, 455, 505 A.2d 492, 493 (1986); Attorney Griev. Comm'n v. Moore, 301 Md. 169, 171, 482 A.2d 497, 498 (1984); Attorney Griev. Comm'n v. Rosen, 301 Md. 37, 39, 481 A.2d 799, 800 (1984). Thus, evidence that the respondent was found, by the Supreme Court of Florida, to have engaged in misconduct and that that finding was used in the District of Columbia to adjudicate reciprocal discipline proceedings against him, is not only admissible in this Court, but such evidence conclusively establishes that he engaged in that misconduct. As we have seen, the respondent was suspended on two occasions pursuant to an order of the Supreme Court of Florida and the District of Columbia Court of Appeals did likewise. The orders of the Florida and District of Columbia courts were issued only after disciplinary proceedings had been initiated and a hearing had been held to adjudicate the charges referred. Thus, the orders suspending the respondent conclusively establish that the respondent engaged in misconduct, they being final adjudications by a judicial tribunal in a disciplinary proceeding. Gittens, 346 Md. at 325,

697 A.2d at 88; Willcher, 340 Md. at 221-222, 665 A.2d at 1061; Attorney Griev. Comm'n v. Sparrow, 314 Md. 421, 550 A.2d 1150 (1988). See also Attorney Griev. Comm'n v. Moore, 301 Md. 169, 482 A.2d 497 (1984). So too is the fact of the suspensions imposed by the Florida Supreme Court and the District of Columbia Court of Appeals, they too being final adjudications in a disciplinary proceeding.

....

... We have made clear that this provision does not permit the relitigation of the facts underlying the disciplinary judgment. Sabghir, 350 Md. at 80-81, 710 A.2d at 932-33. The respondent admits to wanting to impeach the Florida judgment. The hearing court correctly declined to permit him to do so; the respondent may not revisit, or collaterally attack, either the findings of fact made by the Florida court or the judgments it rendered. [Alteration in original.]

We see no further need to explain the principles we so recently stated in Richardson. Accordingly, we overrule respondent's exceptions as to petition Number 81 and sustain the circuit court's conclusion that respondent violated Rules 3.4(a), and 8.4(c) and (d).

II. Petition Number 42

We first note that this Court...