Attorney Grievance v. Childress, Misc. AG No. 22

Decision Date24 August 2000
Docket NumberMisc. AG No. 22
Citation758 A.2d 117,360 Md. 373
PartiesATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. James F. CHILDRESS.
CourtMaryland Court of Appeals

Melvin Hirshman, Bar Counsel and Dolores O. Ridgell, Asst. Bar Counsel for the Attorney Grievance Com'n of Maryland, petitioner.

Joseph G. Petrosinelli, Washington, DC, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, RAKER, WILNER, CATHELL and HARRELL, JJ.

RAKER, Judge.

The Attorney Grievance Commission, acting through Bar Counsel, filed a petition for disciplinary action against James F. Childress, Respondent, for violation of the Rules of Professional Conduct. The petition alleged that Respondent violated Maryland Rule 8.4(d)1 by engaging "in conduct prejudicial to the administration of justice." Bar Counsel recommends that the Respondent's license to practice law be suspended for one year with his readmission conditioned upon the payment of the costs of these proceedings, continued psychiatric treatment, and quarterly reports from the treating psychiatrist to Bar counsel for two years following the termination of his suspension.

Pursuant to Maryland Rule 16-709(b), we referred the matter to Judge G.R. Hovey Johnson of the Circuit Court for Prince George's County to make findings of fact and proposed conclusions of law. Following an evidentiary hearing, Judge Johnson found that Respondent had violated Rule 8.4(d). Respondent filed exceptions to the hearing judge's findings.

I.

We glean the following findings of facts and proposed conclusions of law from the report of the hearing judge. Respondent, James F. Childress, is a graduate of Princeton University. He graduated from the University of Georgia Law School in 1989. He was admitted to the Maryland Bar in 1989, and to the District of Columbia Bar. In 1992 Childress was employed by the United States Department of Commerce as a patent and trademark attorney. He continued in this capacity until April, 1996, when he was laid off for the conduct underlying this proceeding. At the time of the alleged misconduct, Respondent resided in Arlington, Virginia.

On April 14, 1995, Respondent was arrested in Bethesda, Maryland, at Montgomery Mall, and subsequently charged by a federal grand jury with one count of interstate travel with intent to engage in a sexual act with a minor, in violation of 18 U.S.C. § 2423(b) (1994). In October, 1995, following a jury trial in the United States District Court for the District of Maryland, Respondent was convicted and sentenced to a term of imprisonment of five months, five months home detention, a period of supervised release and a $5,000 fine.2 As a result of his conviction, on March 12, 1996, Respondent was suspended from the practice of law in the District of Columbia. See In the Matter of James F. Childress, Esquire, No. 96-BG-159 (D.C. Mar. 12, 1997).

Respondent appealed his conviction to the United States Court of Appeals for the Fourth Circuit. He contended that at the time he was indicted, tried and convicted, the conduct in which he admittedly engaged was not a crime under 18 U.S.C. § 2423(b). See United States v. Childress, 104 F.3d 47, 49 (4th Cir.1996). In December, 1996, the United States Court of Appeals for the Fourth Circuit reversed the judgment of conviction. Id. at 48.

The statute under which Respondent was convicted, 18 U.S.C. § 2423(b), defined the term "sexual act" through an apparently mistaken cross-reference to 18 U.S.C. § 2245 (1994). That section refers to sexually abusive "conduct that results in the death of a person." (emphasis added). The Fourth Circuit considered the argument that Congress had meant to cross-reference a different section that defined "sexual act" more broadly.3See Childress, 104 F.3d at 53. The court determined, however, that the statute, as written at the time of Respondent's offense, did not prohibit his conduct and accordingly, reversed the judgment of conviction. See id. Respondent requested reinstatement, and the D.C. Bar Counsel took no exception. As a result, on January 30, 1997, the District of Columbia Court of Appeals ordered that Respondent be reinstated to practice law in that jurisdiction.

Maryland Bar Counsel initiated disciplinary proceedings stemming from Respondent's conduct during the years 1993 through 1995. During that time Respondent used his home computer to communicate with individuals he believed to be young girls via "chat rooms"4 located on America Online. The girls Respondent targeted were generally between the ages of thirteen and sixteen years old. During some of these conversations, Respondent would ask whether the person was interested in meeting and having sex. For the purpose of convincing the girls to meet him, Respondent would frequently represent that he was younger than his actual age, stating that he was twenty-four years old rather than his actual age of thirty-two. He was able to persuade five young girls to meet with him. These meetings would generally occur in a public place in the Washington D.C. area. On one occasion, Respondent met two girls at the Village Center in Columbia, Maryland. The three drove around in Respondent's car. Respondent also met with a thirteen-year-old girl on three separate occasions in the Manassas, Virginia area. The two drove around and talked. During the meetings with the girls, no sexual contact ever took place and Respondent did not engage in any conversations of a sexual nature.

On April 12, 1995 Respondent signed onto America Online and entered the chat room "X Little Girl Gift," using the screen name "Sylliboy." Once in the chat room, he began chatting with "ONE4FUN4U," a person claiming to be a 14-year-old girl. ONE4FUN4U was actually FBI Special Agent Patricia Lynn Ferrante. Respondent suggested that the two meet. When asked by Ferrante what Respondent would like to do when they met, he responded with a graphic suggestion of sexual activity.

The next day Ferrante and Respondent had a similar conversation; at this time Ferrante told Respondent she was thirteen years old. They also arranged to meet at the Montgomery Mall in Bethesda, Maryland at 2:00 p.m. on April 14, 1995. The following day, Respondent traveled from his home in Arlington, Virginia to the Montgomery Mall, where he was arrested.

After his arrest Respondent voluntarily sought help for his problems. He started seeing a psychiatrist regularly and began taking medication to control a mental disorder from which he suffered—Obsessive Compulsive Disorder (OCD). Currently, Respondent is married and sees a psychiatrist on an as-needed basis.

As indicated, this Court referred the matter to Judge Johnson. At the evidentiary hearing, Dr. Susan Fiester testified regarding Respondent's mental health. She testified that Respondent suffers from depression, tinnitus, and OCD. Dr. Fiester expressed the opinion that each of these conditions contributed to Respondent's behavior. The OCD caused Childress to be hyper-sensitive to the transmittal of germs and diseases, specifically sexually transmitted diseases. The hearing judge recounted:

According to Fiester, although Childress suffered from these mental disorders, he was able to succeed in school and in a professional setting. Childress' rituals had no impact on his practice of law, even when his illnesses were not being treated. Fiester testified that she has no knowledge of any recent contact between Childress and minor females and that there is no likelihood of a return of the actions giving rise to this matter. Currently, Fiester testified, Childress is not suffering from any significant mental disorders and has a good prognosis for potentially coming off medication permanently.

The depression manifested in Respondent a sense of inadequacy when he interacted with women. He subsequently began to feel more comfortable with young girls as he felt they were "non-judgmental" and less likely to carry sexually transmitted diseases. Respondent testified that he kept a "safe sex kit" in his car that contained condoms, dental dams, latex gloves, alcohol, and hydrogen peroxide.

II.

Respondent filed the following exceptions to the hearing judge's findings. He excepts to the hearing judge's factual finding that Respondent's sexually graphic conversations were with more than one young girl. He also excepts to the hearing judge's conclusion that he violated Rule 8.4(d).

This Court has original and complete jurisdiction over disciplinary proceedings. See Attorney Grievance Comm'n v. Sheridan, 357 Md. 1, 17, 741 A.2d 1143, 1152 (1999). We therefore make an independent, in-depth review of the entire record, with particular attention to the evidence relating to the disputed factual findings. See Bar Ass'n of Baltimore City v. Marshall, 269 Md. 510, 516, 307 A.2d 677, 680-81 (1973). The hearing court's findings of fact, however, are deemed prima facie correct and will not be disturbed unless they are clearly erroneous. See Attorney Grievance Comm'n v. Goldsborough, 330 Md. 342, 347, 624 A.2d 503, 505 (1993).

We turn first to Respondent's exception to the court's factual finding that "[s]ome of the discussions with minor females involved graphic conversations regarding sex." Respondent argues the record reflects that he had only one sexually explicit conversation with a young girl. He contends that the only other sexually graphic conversation was with Agent Ferrante, who is not a young girl.

Our independent review of the record reveals that the hearing judge was not clearly erroneous in making this finding of fact. When viewed in isolation the statement made by the hearing judge could indicate that the females Respondent had sexually graphic conversations with were in fact minors. When read in context however, it is apparent that he was referring to females Respondent believed to be minors. In the sentence immediately preceding the one at issue, the hearing judge states that Respondent used his home computer to...

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