Attorney Grievance v. Garfield

• Decision Date: 06 May 2002
• Docket Number: Misc. Subtitle AG No. 7
• Citation: 797 A.2d 757,369 Md. 85
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND, v. Craig Steven GARFIELD.
• Court: Maryland Court of Appeals

797 A.2d 757

369 Md. 85

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND, v. Craig Steven GARFIELD.

Misc. (Subtitle AG) No. 7, September Term, 2001.

Court of Appeals of Maryland.

May 6, 2002.

Melvin Hirshman, Bar Counsel for the Attorney Grievance Commission of Maryland, for petitioner.

Henry Myerberg, Towson, for respondent.

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

Pursuant to Maryland Rule 16-709(a)¹, Bar Counsel, on behalf of the Attorney Grievance Commission (Petitioner) and at the behest of the Review Board, filed with this Court a petition for disciplinary action against Craig Steven Garfield, Esquire (Respondent).² In the petition, Bar Counsel alleged violations of the Maryland Rules of Professional Conduct (MRPC) 1.1, 1.3, 1.4, 1.16, and 8.4(d) in connection with Respondent's representation of Artinus Shands³, Darron C. Addison, Lillian Johnson, Samuel C. Veney, Drucella Mann, Diane Postal, and Robert Yinger (the latter in two separate matters).⁴ This Court referred the matter to Judge John M. Glynn of the Circuit Court for Baltimore City to conduct an evidentiary hearing and make findings of fact and conclusions of law in accordance with Md. Rules 16-709(b)⁵ and 16-711(a)⁶.

After an evidentiary hearing held on 24 September 2001, the hearing judge found by clear and convincing evidence that Respondent violated MRPC 1.1, 1.3, 1.4(a), 1.16, and 8.4(d). Petitioner, pursuant to Md. Rule 16-711(b)(2)⁷, filed with this Court exceptions to the findings of facts and conclusions of law, and a recommendation for sanction (2 year suspension and specific conditions for reinstatement). Respondent filed a reply to Petitioner's exceptions and a recommendation for sanction (urging an unspecified "remedial form of sanction," though earlier he proposed a conditional public reprimand).

I.

From the evidentiary record below, the hearing judge, in a memorandum dated 11 October 2001, explained the following:

In his complaint, Bar Counsel contends that the Respondent engaged in professional misconduct as defined by Rule 16-701(k) of the Maryland Rules of Procedure in cases involving: Renee B. Johnson [ (for her son, Artinus Shands)], Darr[o]n C. Addison, Lillian Johnson, Samuel C. Veney, D[ruce]lla Mann, Diane Postal and Robert Yinger, in two (2) separate matters. At hearing, Bar Counsel voluntarily dismissed the allegations with respect to Samuel C. Veney. It should be noted that the Mann, Postal, and Yinger cases were brought to the attention of Bar Counsel voluntarily by Respondent. All of the matters which remain for consideration by the Court were civil matters. It is undisputed that these cases were either dismissed for want of prosecution or barred by limitations as a result of Respondent's professional lapses.⁸ During all relevant periods, the Respondent did not maintain professional liability insurance.

Bar Counsel alleges that Respondent behaved unethically and unprofessionally in violations of the following Maryland Rules of Professional Conduct:

Rule 1.1 Competence

Rule 1.3 Diligence

Rule 1.4 Communication

Rule 1.16 Declining or Terminating Representation

Rule 8.4 Misconduct

By pleading, Respondent admits his violation of Rule 1.1 but adds that at all times he "would deny that he does not possess the required legal knowledge or skill to competently represent his clients."

Respondent admits the alleged violation of Rule 1.3 regarding Diligence;

Respondent admits the alleged violation of Rule 1.4 regarding Communications; only with respect of sub[ ]section (a), but denies violating subparagraph (b) of the Rule;

Respondent admits violating Rule 8.4 regarding Misconduct;

Respondent denies that he violated Rule 1.16 regarding Declining or Terminating Representation.

Continuing, the hearing judge noted that "Respondent's presentation focused on the issue of mitigation,"⁹ and summarized his evidence:

[Respondent] called as witnesses, Richard E. Vincent, Director of Lawyer Counseling for the Lawyer Assistance Committee of the Bar; and Dr. John E. Davis, an expert in psychiatry¹⁰ and substance abuse. He also testified on his own behalf regarding his personal history with particular emphasis on his contention that his abuse of cocaine was at the root of his professional derelictions.

Both expert witnesses and Respondent contended that the root cause of Respondent['s] professional failures was his drug abuse. They emphasized that he cooperated fully with Bar Counsel, apologized for his failings, and offered to make his clients whole.

Richard Vincent contended that in cases involving drug abuse, it is particularly important that a "hammer" continue to hang over the head of the drug abuser to ensure continued compliance with a program that requires the avoidance of drug use. Both witnesses stated that during the period of his professional derelictions, the Respondent was struggling through a very bad divorce, and for a time was involved in an additional relationship which he found emotionally overwhelming.

Likewise, they testified that they had worked extensively with Respondent and that he had "embraced the recovery program." He continues to be supervised by Dr. Davis to insure that he not use illegal drugs and regularly attends therapy and meetings of Narcotics Anonymous.

Dr. Davis believed that the Respondent's use of drugs, in the context of his family and social problems, created a psychological state of extreme distractibility. Dr. Davis concluded that it was Respondent's drug use that caused him to miss various filing deadlines resulting in the dismissal of all lawsuits in the cases alleged by Bar Counsel. However, he testified that since seeking drug treatment and acknowledging his drug abuse problems which date back to the mid 90's, he is now handling only criminal cases.

Respondent's defaults occurred principally between the period of 1998 and 2000. Earlier, he was functioning effectively as an attorney. Respondent emphasized that he feels great remorse and hopes to compensate his former clients for the consequences of his failures. Also, he indicated that he was amenable to supervision by another attorney, if he were permitted to continue to practice law in the State of Maryland.

Based on the evidence presented and inferentially satisfied to a clear and convincing standard, the hearing judge concluded that Respondent "violated the Maryland Rules of Professional Conduct as alleged, with the exception of Rule 1.4(b) with respect to which," the hearing judge found "no specific evidence was offered." In addition, although Respondent "challenged the allegations concerning Rule 1.16," the judge found that "the record support[ed] a finding that he violated th[at] rule." It was "plain" to the hearing judge, "that [Respondent's] continued representation of clients was impaired by the use of drugs, thereby violating the rules of professional conduct." "Accordingly," he found "Respondent in violation of Rules 1.1, 1.3, 1.4(a), 1.16, and 8.4[ (d) ]."

The hearing judge went on to explain that "[t]he central issue in this case concern[ed] whether the Respondent's drug abuse was the root cause of subsequent professional derelictions." On that issue, the hearing judge concluded that:

[t]he record clearly establishes, and the Court is persuaded by [a] preponderance of the evidence, that for two decades Mr. Garfield practiced criminal law successfully in the courts of the State of Maryland and was regarded both by his fellow practitioners and the Bench as an asset to the Bench, Bar and Community.

...

The Court is persuaded by a preponderance of the evidence that Respondent's professional failures were substantially the result of drug abuse. While he may have struggled with his domestic and relationship problems, it was his drug abuse that pushed him across the line which separates those who struggle and succeed, if only barely, from those who fail....

Respondent's expert witnesses and the testimony of Respondent support these findings. They are also supported by the timing of Respondent[']s failures which seem related to his most severe drug abuse, and by the nature of those failures, which seem the product of his inability to focus on detailed office responsibilities. This is particularly true in those areas of the law which he was the least experienced and expert.

The Court will not presume to speculate about exactly how Respondent's other struggles played into his addiction, and how they all worked to undermine his professionalism. It seems plain on this record in this case, that but for drug abuse, Respondent would have been an unlikely candidate for professional discipline. (Footnote omitted).

Respondent filed no exceptions to the hearing judges findings of fact or conclusions of law. On 29 October 2001, Respondent recommended a sanction of a public reprimand subject to "continued drug therapy," monitoring by Mr. Vincent's office, limitation of his practice to criminal law, and "supervision by an attorney subject to reporting requirements to Bar Counsel." Petitioner, on 2 November 2001, filed with the Court exceptions challenging the hearing judge's finding that he was "`persuaded by a preponderance of the evidence that Respondent's professional failures were substantially the result of drug abuse.'" According to Petitioner, the hearing judge's findings "[we]re inconsistent with the evidence from the Respondent's own testimony and the testimony from Respondent's own expert." Based on Standard 4.42 of the ABA Standards for Imposing Lawyer Sanctions, Petitioner recommended a sanction of a two year suspension from the practice of law.¹¹ On 20 November 2001, Respondent filed a reply to Petitioner's exceptions disagreeing "with Petitioner's claim that [the hearing judge's] findings were inconsistent with the evidence," and suggesting "that a remedial form of sanction would be more appropriate."

II.

We recently explained in Attorney Grievance Comm'n...