Attorney Grievance v. Smith, 27 September Term, 2007.

• Decision Date: 13 June 2008
• Docket Number: No. 27 September Term, 2007.,27 September Term, 2007.
• Citation: 950 A.2d 101,405 Md. 107
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Patrick Joseph SMITH.
• Court: Court of Special Appeals of Maryland

950 A.2d 101

405 Md. 107

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Patrick Joseph SMITH.

No. 27 September Term, 2007.

Court of Appeals of Maryland.

June 13, 2008.

[950 A.2d 102]

Dolores O. Ridgell, Asst. Bar Counsel (Melvin Hirshman, Bar Counsel, Attorney Grievance Com'n of Maryland), for Petitioner.

Bruce L. Marcus (Robert C. Bonsib of MarcusBonsib, LLC, Greenbelt), for Respondent.

ARGUED BEFORE BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, JJ., and JOHN C. ELDRIDGE and DALE R. CATHELL, JJ. (Retired, Specially Assigned).

DALE R. CATHELL, Judge (Retired, Specially Assigned).

On August 20, 2007, the Attorney Grievance Commission of Maryland, petitioner, by Melvin Hirshman, Bar Counsel, and Dolores O. Ridgell, Assistant Bar Counsel, filed a petition for disciplinary action¹ against Patrick J. Smith, respondent, for multiple violations of the Maryland Rules of Professional Conduct (MRPC). The petition alleged that respondent, based upon his actions related to his representation of Joshua Teague, had violated MRPC 3.4 and 8.4(a)-(d).²

Pursuant to Md. Rule 16-752(a) this Court assigned the matter to Judge Ronald B. Rubin of the Circuit Court for Montgomery County to conduct a hearing and to make findings of fact and conclusions of law.

On January 3, 2008, an evidentiary hearing was held before the hearing judge. On January 30, 2008, Judge Ronald Rubin of the Circuit Court for Montgomery County entered his Memorandum Opinion in which he found that the above violations of the MRPC had occurred and the fact that Smith's criminal convictions³ were reversed did not preclude these violations. The record was transferred from the hearing judge to this Court for oral argument. Pursuant to Md. Rule 16-758(b), respondent filed with this Court exceptions and recommendations to the hearing judge's findings of fact and conclusions of law.

Facts

Respondent was admitted to the Bar of Maryland in 1979 and maintains his practice of law as a sole practitioner in his office located in Rockville, Maryland. He was admitted to the Bar of the District of Columbia in 1979 and to the Bar of Georgia in 1978, in which state his status currently is inactive. He is also a member of the bars of the federal courts in Maryland and the District of Columbia.

Judge Rubin's findings and conclusions are, in part, as follows:

"Findings of Fact

1. Patrick Joseph Smith (`Smith') was born on March 13, 1948[,] in Lawrence, Massachusetts. He is the 5th of 15 children.

2. Smith is married and is the father of two children. Mrs. Smith is a long-standing employee of a federal law enforcement agency. One child is an attorney practicing in New York City. The other child is in graduate school.

3. Smith received his undergraduate degree in 1970 from Merrimack College, North Andover, Massachusetts[,] and his juris doctorate in 1978 from the Potomac School of Law, Washington, D.C.

. . .

5. From March 1986 to the present. . . . His practice is concentrated in the areas of personal injury and criminal defense. Previously, he worked with a number of leading members of the bar. . . .

6. Smith has represented defendants in over 2,000 criminal matters and has dealt honorably with state and federal prosecutors and judges. Apart from the instant matter, Smith has not been the subject of any filed complaints or attorney grievance proceedings.

7. In addition to his legal practice, Smith has devoted substantial time and energy to public service. From May 1990 through June 1991, Smith was Special Counsel to the United States Sentencing Commission and was instrumental in developing alternatives to federal imprisonment. In 1992, Smith received a Citation from the Governor of Maryland for his work in Law in the Public Schools. In 1996, Smith received a Citation from the Governor of Maryland for his work on the Task Force on Sentencing and Sentencing Alternatives.

8. From 1992 through 1998, Smith served on the Executive Advisory Board of the Vietnam Veterans Institute, which provides health care services to wounded war veterans.

9. Smith has been active in the Bar Association of Montgomery County, Maryland. From 1989 through 1990, Smith was Chair of the Mentor Program for New Practitioners. In 1992, he received the Pro Bono Service Award. From 1998 to the present, Smith has been a member of the Victims Rights Foundation. Smith also has been instrumental in developing public television programs on law in Montgomery County and, in 1990, received a Certificate from the Maryland State Bar Association in Citizenship and Law-Related Education for his work with Maryland public schools.

10. Smith has received recognition from numerous civil and public service programs, including his work on public housing for elderly and disabled residents, business development in the City of Rockville and fire safety.

11. Smith has an exemplary reputation in the legal and professional community for honesty, veracity, and good character. . . .

12. On October 3, 2003, the Montgomery County Police arrested Joshua Teague (`Teague') for allegedly assaulting Andrew Simpson after a DC 101 radio station event in `Shantytown,' located in Silver Spring, Maryland. According to the police report, the alleged assault was witnessed by Officer J. Gloss and Jeremie Simpson, a cousin of Andrew Simpson.

13. Smith was retained by Teague on December 11, 2003. Smith had no prior relationship of any kind with Teague. Smith appeared with Teague at arraignment on December 12, 2003. Teague told Smith that he was innocent and had not assaulted Andrew Simpson. Throughout the time Smith represented Teague, Teague maintained his innocence and refused to plead guilty to any charges arising out of the alleged assault on Andrew Simpson.

14. Smith received discovery from the Office of the State's Attorney on December 17, 2003. As noted above, the police report listed Officer Gloss and Jeremie Simpson as eyewitnesses to the alleged assault on Andrew Simpson.

15. Smith learned from Teague in mid-December 2003 that an individual named Ken Kelly had been videotaping the events at Shantytown on the night in question. According to Teague, the video taken by Mr. Kelly showed an unprovoked assault by either Andrew or Jeremie Simpson on an individual named Gus Gamino. Smith asked Teague to secure a copy of the videotape from Mr. Kelly.

16. Teague obtained a copy of the videotape from Mr. Kelly and gave it to Smith. After viewing the videotape, which showed an assault on Gamino, Smith told Teague to attempt to have Gamino file assault charges against Andrew Simpson. Teague later assured Smith that Gamino would seek criminal charges. No later than the week before Teague's trial, scheduled for February 18, 2004, Teague told Smith: `that 100 percent that it would be done, so I never told him [Smith] that it wasn't done.' Although Smith believed Teague, Smith did not verify the information he learned from Teague with respect to Gamino pressing criminal charges against Andrew Simpson.

17. Smith contacted the Assistant State's Attorney assigned to the Teague prosecution to advise him of the existence of the tape. The prosecutor agreed to meet with Smith and Teague to view the videotape. The prosecutor also agreed to have Office Gloss present at the meeting.

18. At the February 12, 2004 meeting with the prosecutor (which Officer Gloss did not attend) Smith, Teague, and the prosecutor watched the tape of the assault on Gamino. The prosecutor agreed that Smith could use the videotape at Teague's trial, that he would stipulate to its admissibility and asked Smith for a copy. Smith had the videotape copied at a professional facility and personally delivered it to the Office of the State's Attorney on the morning of February 13, 2004.

19. Shortly after delivering the videotape, Smith received a telephone call from the prosecutor, who accused Smith of tampering with the videotape and withdrew his agreement as to the videotape's admissibility.

20. The Court has carefully viewed the videotape of the assault on Gamino. The Court has also carefully considered the testimony of Smith and the prosecutor. The Court finds, based on the credible evidence of record, that the prosecutor in fact accused Smith on February 13, 2004 of altering the videotape and that the prosecutor, when he leveled this charge, had no factual basis whatsoever for contending that the videotape had been altered by Smith or anyone else. Smith was deeply angered and upset by the prosecutor's charge that he altered the videotape.

21. The prosecutor called Smith at 11:00 a.m. on February 17, 2004 to advise Smith he was seeking an emergency hearing before the Administrative Judge with respect to his contention Smith had altered the videotape. The prosecutor also told Smith that he was taking this matter to Bar Counsel.

22. On February 17, 2004, at 2:17 p.m., Smith spoke with Teague. During this call, Smith asked Teague if Gamino had filed charges against Andrew Simpson. Teague told Smith that Gamino had in fact gone to the Commissioner.

23. On February 17, 2004, at 2:40 p.m., Smith, acting on the information he had received from Teague, attempted to call Andrew Simpson to advise him that assault charges had been leveled against him by Gamino. Smith's intent was to cause Andrew Simpson to assert his Fifth Amendment privilege when he appeared to testify at Teague's trial.

24. When Smith looked at the police report, he mistook Jeremie Simpson as the alleged victim of the assault by Teague. Smith compounded this error when he dialed the telephone number for Jeremie Simpson that was listed near his name on the first page of [the] police report. The call was answered by voice mail at the home of Simpson's parents. Smith made a split-second decision and left the following message on the voice mail recording: `Yeah, this is Sergeant Graham with the Montgomery County Police, Seven Locks Station, trying to reach Jeremie Simpson because we have a warrant for his...