Attorney Grievance v. Thompson, Misc. Subtitle AG No. 16

Decision Date17 December 2001
Docket NumberMisc. Subtitle AG No. 16
Citation367 Md. 315,786 A.2d 763
PartiesATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Gary E. THOMPSON.
CourtMaryland Court of Appeals

Melvin Hirshman, Bar Counsel and James P. Botluk, Asst. Bar Counsel for the Attorney Grievance Commission of Maryland.

No argument on behalf of the Respondent.

Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL, KARWACKI, ROBERT L. (Ret., specially assigned), JJ.

HARRELL, J.

Pursuant to Maryland Rule 16-709(a) 1, Bar Counsel, on behalf of the Attorney Grievance Commission (Petitioner) and at the direction of the Review Board, filed with this Court a petition for disciplinary action against Gary E. Thompson, Esquire (Respondent). In the petition, Bar Counsel alleged violations only2 of Rules 8.4(b) and (c) of the Maryland Rules of Professional Conduct (MRPC)3. This Court referred the matter to a judge of the Circuit Court for Montgomery County to conduct an evidentiary hearing and make findings of fact and conclusions of law in accordance with Maryland Rules 16-709(b)4 and 16-711(a)5. After an evidentiary hearing, the hearing judge was unable to find by clear and convincing evidence that Respondent violated MRPC 8.4(b) or (c). Petitioner filed with this Court exceptions to the findings of fact and conclusions of law, and a recommendation for sanction. Respondent filed a brief reply to Petitioner's exceptions.

From the evidentiary record made below, the hearing judge made the following findings of fact:

Respondent is a 47-year old male who is married and has two sons. He was admitted to the Maryland bar in November 1978 and has practiced law exclusively in the state of Maryland for over 21 years. Respondent's law practice consists primarily of estates and trusts, business law and elder law. He also devotes a substantial amount of time to pro bono representation of the elderly.

On March 24, 1998, Bar Counsel filed a Complaint with Petitioner against Respondent based upon a charge brought against the Respondent on February 1, 1998 in the District Court of Maryland [sitting in] Montgomery County. On August 27, 1998, Respondent pled guilty to the offense of stalking, in violation of section 32-20 of the Montgomery County Code, which provides in pertinent part:

Sec. 32-20 Stalking. (a) In this section to stalk means to engage in a persistent pattern of conduct which:
(1) alarms, annoys, intimidates, frightens, or terrorizes a person; and
(2) causes the person to reasonably fear for his or her safety, or that of any third person.

...

Respondent was sentenced to six months incarceration with all time suspended, three years probation 1, one hundred hours of community service and a[n] $1,000.00 fine.
The stalking charge stemmed from Respondent's interactions with a 13-year old boy he met at a Montgomery County swim center in October 1997. Pursuant to one of their conversations approximately one month after their initial meeting, Respondent made an inappropriate sexual remark to the boy.2 Subsequently, Respondent spoke to the boy at a shopping mall, called him on the telephone and on one occasion, appeared uninvited at the boy's home. Charges were then filed against Respondent. Respondent testified that it was only after being charged that he learned that the boy had been very upset as a result of Respondent's conduct with him.
Although Respondent has no previous sanctions for professional misconduct, his testimony revealed that he was previously acquitted of charges arising out of his conduct with another teenage boy in 1995. Respondent acknowledged that he has been sexually attracted to pubescent boys since he was in his late teens. After being charged with the stalking offense, Respondent sought treatment from Dr. Fred S. Berlin, M.D., Ph.D.3, who diagnosed Respondent with
1 To date, this Court has not been informed that Respondent has failed to comply with any of the terms and conditions of his probation.
2 It is disputed as to whether the boy was in the shower at the time the remark was made.
3 Dr. Berlin has extensive experience in treating sexual disorders. Among other accomplishments, he is the founder of The Johns Hopkins Sexual Disorders Clinic in Baltimore, Maryland.
nonexclusive homosexual Ephebophilia 4. Since his evaluation by Dr. Berlin, Respondent has enrolled in a treatment program, which includes therapy sessions and antiandrogenic medication (which has the effect of lowering Respondent's sex drive). Progress letters from Dr. Berlin indicate that Respondent has been highly motivated and diligent in his efforts to maximize the effect of his treatment. Furthermore, Dr. Berlin reports that Respondent is doing well thus far. Dr. Berlin further indicates that Respondent's prognosis for continued abstinence from improper sexual behavior "will remain good" so long as he continues to maintain his high level of motivation and continues to adhere to his treatment regimen.

In August 1999, Respondent entered into a "Monitor's Contract" with Robert H. Metz, a prominent member of the Maryland Bar who agreed to monitor Respondent's activities as a practicing lawyer. Pursuant to the contract, Respondent agrees to limit his practice to estates and trusts, business law, elder law, real estate and other similar legal practice areas not involving issues pertaining to or involving contact with minor children. Mr. Metz agrees to act as Respondent's monitor conferring monthly with both Respondent and Dr. Berlin to confirm that Respondent is maintaining his treatment as well as adhering to all other protective stipulations in the contract.

4 This condition involves a sexual attraction to pubescent boys. The condition does not limit the Respondent's sexual attraction only to pubescent boys and his testimony reveals that he also has a sexual attraction to his wife.

Based on these findings of fact, the hearing judge concluded that Respondent had not violated MRPC 8.4(b) or (c). Under his interpretation of the requirements for a MRPC 8.4(b) violation, and relying in part on our decision in Attorney Griev. Comm'n v. Post, 350 Md. 85, 710 A.2d 935 (1998), the hearing judge concluded that Respondent's conduct did not "evince a character trait relevant or critical to the practice of law" and, therefore, did not "reflect[ ] adversely on his fitness as a lawyer." He also determined Respondent's conduct had not violated MRPC 8.4(c), as he found no evidence in the record suggesting Respondent "engaged in any conduct involving dishonesty, fraud, deceit or misrepresentation."

Petitioner filed with this Court exceptions challenging the hearing judge's conclusion that Respondent had not violated MRPC 8.4(b)6,7, and recommended a sanction of indefinite suspension from the practice of law. Respondent, in proper person, filed a reply to Petitioner's exceptions arguing fundamentally that the hearing judge's findings of fact "should serve as the basis for consideration of this matter." Respondent did not appear at oral argument.

I. MRPC 8.4(b)

Maryland Rule of Professional Conduct 8.4(b)Misconduct.

It is professional misconduct for a lawyer to:

(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.

The hearing judge, in his Conclusions of Law, opined that Respondent's misconduct in this case did not reflect "adversely on his fitness as a lawyer" and, therefore, did not violate MRPC 8.4(b). Petitioner excepts to this and maintains the hearing judge "erred" in concluding "Respondent's stalking of [a] teenage boy was not conduct adversely reflecting on his fitness as an attorney." Petitioner contends that "[w]here a lawyer's misconduct involves sexual misconduct with children, that misconduct reflects adversely on the lawyer's fitness." Respondent, in his Reply, urges us to adopt the reasoning of the hearing judge.8

It is well settled that this Court has original jurisdiction over all attorney disciplinary proceedings. See Attorney Griev. Comm'n v. Zdravkovich, 362 Md. 1, 20, 762 A.2d 950, 960 (2000) (citing Attorney Griev. Comm'n v. Sheridan, 357 Md. 1, 17, 741 A.2d 1143, 1152 (1999); Attorney Griev. Comm'n v. Glenn, 341 Md. 448, 470, 671 A.2d 463, 473 (1996)). The hearing judge's findings of fact, which are "prima facie correct," Zdravkovich, 362 Md. at 21,762 A.2d at 960 (quoting Glenn, 341 Md. at 470,671 A.2d at 474), are unexcepted to in this case, as we noted earlier. As to his conclusions of law, however, "our consideration is essentially de novo," Attorney Griev. Comm'n v. Briscoe, 357 Md. 554, 562, 745 A.2d 1037, 1041 (2000), as "[t]he ultimate determination... as to an attorney's alleged misconduct is reserved for this Court." Glenn, 341 Md. at 470,671 A.2d at 474 (citing Attorney Griev. Comm'n v. Bakas, 323 Md. 395, 402-03, 593 A.2d 1087, 1091 (1991)). After thoroughly reviewing the record and discovered case law, we sustain Petitioner's exceptions and overrule the hearing judge's conclusion that Respondent's conviction of the crime of stalking, under section 32-20 of the Montgomery County Code, resulting from his actions involving a thirteen year old boy, does not reflect adversely on his trustworthiness and fitness as a lawyer in other respects.

The Comment to MRPC 8.4 provides that "[m]any kinds of illegal conduct reflect adversely on [the] fitness to practice law...." As we explained in Attorney Griev. Comm'n v. Post, 350 Md. 85, 97, 710 A.2d 935, 941 (1998),

Rule 8.4(b) recognizes, by its reference to character traits, rather than enumerating specific crimes, that commission of some crimes evidence or demonstrate a character flaw that, were the person committing them applying for admission to the bar, would constitute a significant impediment, if not outright prohibition, to his or her admission or, having been admitted, could result in his or her disbarment. The rule identifies two such traits. In addition to those traits, however,
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