Attorney Grievance v. Childress

• Decision Date: 19 April 2001
• Docket Number: Misc. AG No. 22
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND, v. James F. CHILDRESS.
• Court: Maryland Court of Appeals

770 A.2d 685

364 Md. 48

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND, v. James F. CHILDRESS.

Misc. AG No. 22, Sept. Term, 1999.

Court of Appeals of Maryland.

Argued May 5, 2000.

Reargued March 5, 2001.

Decided April 19, 2001.

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

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

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

Reargued before BELL, C.J., and RAKER, WILNER, CATHELL, HARRELL, and LAWRENCE F. RODOWSKY (retired, specially assigned), JJ. RODOWSKY, Judge.

This is the second time in which the instant Petition for Disciplinary Action has been before this Court. It charges the respondent, James F. Childress (Childress), with having violated Maryland Rule of Professional Conduct (MRPC) 8.4(d), prohibiting engaging "in conduct that is prejudicial to the administration of justice." The charges stem from Childress's having been found guilty in the United States District Court for the District of Maryland, Southern Division, of having violated 18 U.S.C. § 2423(b) (1994), proscribing interstate travel with intent to engage in a sexual act with a minor. We referred the disciplinary charges to Judge G.R. Hovey Johnson of the Circuit Court for Prince George's County for hearing. Because of a drafting error in 18 U.S.C. § 2423(b) as it was in effect at the time of the conduct criminally charged against Childress, the United States Court of Appeals for the Fourth Circuit reversed his conviction. United States v. Childress, 104 F.3d 47 (4th Cir.1996). Thereafter, Judge Johnson reported to us that Childress had violated MRPC 8.4(d) because his conduct violated 18 U.S.C. § 2423(b), notwithstanding that Childress's conviction had been reversed. Judge Johnson reasoned that the reversal had been on technical grounds unrelated to the facts of the case.

In Attorney Grievance Comm'n v. Childress, 360 Md. 373, 758 A.2d 117 (2000) (Childress I),

we held that Judge Johnson erred, inasmuch as Childress's acts "did not constitute a crime under federal law at the time he committed them," based on the Fourth Circuit's decision. Id. at 382, 758 A.2d at 121. We re-referred the matter, however, to Judge Johnson with the request that he consider whether the facts presented to him constituted a crime under either of two statutes, Maryland Code (1974, 1998 Repl.Vol.), § 3-831 of the Courts and Judicial Proceedings Article (CJ), prohibiting, inter alia, acts by an adult which render a child in need of supervision, or Va.Code Ann. § 18.2-370 (1996), the catch line description of which is, "Taking indecent liberties with children." On re-referral Judge Johnson found that Childress had violated both statutes and, thereby, MRPC 8.4(d). The matter is now again before us on exceptions by Childress to Judge Johnson's findings and, if the disciplinary charge is sustained, for imposition of an appropriate sanction.

The criminal charges involved Childress's conduct during the years 1993 through 1995 which we described in Childress I as follows:

"During that time Respondent used his home computer to communicate with individuals he believed to be young girls via `chat rooms' located on America Online [(AOL) ]. 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."

360 Md. at 377, 758 A.2d at 119 (footnote omitted).

An undercover FBI Special Agent had posed as a fourteen year old girl in an AOL chat room using the screen name "`ONE4FUN4U'" and arranged to meet Childress at the Montgomery Mall in Bethesda, Maryland. In their Internet conversations, Childress described in lurid detail the sexual activity in which he desired to engage with the putative fourteen year old when they met. At their meeting Childress was arrested.

At the hearing before Judge Johnson that formed the record for Childress I, Bar Counsel's case consisted of a stipulation of basic facts and excerpts from the testimony of four witnesses at the federal criminal trial, that of Childress himself, two FBI agents, and a psychiatrist, Susan Fiester, M.D. In their investigation federal agents obtained from Childress's hard drive or from disks the verbatim texts of many of his chat room conversations. These texts formed the basis for much of the examination of witnesses at the federal trial. At the hearing on re-referral Bar Counsel introduced no additional evidence to that presented for Childress I. In his report to us in this matter, Childress II, Judge Johnson rests his finding of conduct violative of the Virginia statute exclusively on the testimony concerning a thirteen year old female who used the pseudonym or screen name "JRB," and he rested his finding of conduct violative of the Maryland statute solely on the evidence concerning a fifteen year old female who used the screen name "TINA97."

I

The Maryland statute, CJ § 3-831(a), is part of the subtitle, "Juvenile Causes." The section reads:

"It is unlawful for an adult wilfully to contribute to, encourage, cause or tend to cause any act, omission, or condition which results in a violation, renders a child delinquent, in need of supervision, or in need of assistance."

In Childress I, we specifically directed Judge Johnson's attention to that portion of CJ § 3-831(a) dealing with a child "in need of supervision" by referring to the definition of that phrase found in CJ § 3-801(f). Childress I, 360 Md. at 386 n. 8, 758 A.2d at 124 n. 8. More particularly, footnote 8 in Childress I, drew attention to the third of four types of conduct which may give rise to a finding that a child is in need of supervision. The full text of CJ § 3-801(f) is set forth below. "`Child in need of supervision' is a child who requires guidance, treatment, or rehabilitation and:

"(1) Is required by law to attend school and is habitually truant;

"(2) Is habitually disobedient, ungovernable, and beyond the control of the person having custody of him;

"(3) Deports himself so as to injure or endanger himself or others; or

"(4) Has committed an offense applicable only to children."

TINA97, the subject of the finding that Childress violated CJ § 3-831, was born December 7, 1979. She engaged in chat room conversations with Childress from a computer located in her parents' home in Maryland. Childress used the screen name, "Fearlessss." There were several chat room conversations during which Childress stated that if he and TINA97 met and she liked him, they could be "physically intimate." In those conversations Childress consistently stated that he would allow TINA97 to "set the limits" because she was younger. In one conversation Childress suggested that the two could have "physical fun" if they were attracted to each other. In or about late February 1995 Childress met with TINA97 at a delicatessen in the greater Baltimore metropolitan area. TINA97 had told Childress that she would have her mother drop her off and pick her up. She also stated that she would bring a friend along. Childress discouraged TINA97 from bringing her friend because then there could be "no intimacy." Nevertheless, TINA97 brought to the meeting a female friend who was approximately sixteen and a half years old. The three apparently engaged in benign conversation, and no sexual contact occurred.

Judge Johnson reports to us that, on re-referral, Bar Counsel argued that Childress had encouraged young teenage girls "to discuss sexual matters, agree to have sex, and then meet with [him] in person," thereby placing "the girls vulnerable to injury, danger or abuse." Referring to the conversation between TINA97 and Childress at which their meeting was arranged, Judge Johnson concluded that "Childress did in fact commit an act which encouraged TINA97 to be in need of supervision, especially in light of the fact that Childress does not dispute the two actually met in person."

The burden on Bar Counsel in a disciplinary proceeding is to prove the violation of a Model Rule of Professional Conduct by clear and convincing evidence. This standard of proof is not heightened to proof beyond a reasonable doubt where Bar Counsel's theory of the case is that a Rule of Professional Conduct has been violated by conduct which constitutes a crime, although there has been no criminal conviction. See Attorney Grievance Comm'n v. Garland, 345 Md. 383, 390, 692 A.2d 465, 468 (1997)

; Attorney Grievance Comm'n v. Proctor, 309 Md. 412, 418, 524 A.2d 773, 776 (1987). Here, the evidence was not sufficient to establish by clear and convincing evidence that Childress violated CJ § 3-831(a).

We said in Childress I that "the harm, or potential harm, in a stranger soliciting sex over the Internet to young girls, after imploring them to keep the meeting a secret from their parents, is patent." Childress I, 360 Md. at 386, 758 A.2d at 123. It is also clear that Childress caused TINA97 to meet with him. We shall assume that, by meeting Childress, TINA97 "[d]eport[ed her]self so as to ... endanger [her]self." CJ §...