Attorney Grievance Commission v. Marcalus

HARRELL, Judge,

concurring and dissenting in which BATTAGLIA and BARBERA, JJ., join.

Although I concur with the Majority opinion’s resolution of the exceptions to the hearing judge’s findings of fact and conclusions of law, I break ranks concerning the sanction.

First, the Majority opinion avoids acknowledgment of the actual misconduct underlying Marcalus’s 2007 indefinite suspension (with the right to apply for reinstatement in no sooner than 30 days) (Maj. op. at 524-25, 996 A.2d at 363-64). In *527that matter, he violated MRPC 8.4(d) (conduct prejudicial to the administration of justice) when he sent his client inappropriate and sexually suggestive electronic text messages (sexting) and touched her in a sexually suggestive manner, all while in a courthouse awaiting a trial to commence. It would seem, given the nature of the misconduct in the present case, that Marcalus has some judgment shortcomings when it comes to acting-out as his libido moves him. When this sort of conduct becomes public, it tends to cast the image of lawyers and the legal profession in an unflattering light, to say the least. I consider the prior sanction, therefore, a more substantial aggravating factor in the analysis of the appropriate sanction in the present case than apparently does the Majority opinion.

Understandably, because we are confronted frequently in criminal law cases with various levels of bona fide drug dealers charged with distribution of controlled dangerous substances (“CDS”), the Majority opinion minimizes the relative significance of Marcalus’s conduct with regard to a single Vicodin pill, although the transaction otherwise might be an inchoate drug crime as well (as well as the inchoate prostitution crime he committed). Maj. op. at 524-25, 996 A.2d at 363-64. I share that view of relativity in this context. What I do not share, however, is the Majority opinion giving significant mitigating weight to Marcalus’s attributed motive in disclosing the facts of his misconduct to police, that of helping his former client and friend, Mr. Berlin, avert an assertedly false rape claim lodged by “Michelle.” Maj. op. at 524-26 996 A.2d at 363-64. The hearing judge did not find this consideration to be a mitigating fact in his findings of fact and conclusions of law. To the contrary, Judge Silkworth found that, while to step forward with the information that appeared to have aided Mr. Berlin’s cause was “the appropriate action to take while representing his client, it does not serve to mitigate” the alleged misconduct. Whether Marcalus rose to the aid of Mr. Berlin because he was compelled by the noblest calling of the legal profession and ethical principles or merely to help a friend, it nonetheless is possible that Marcalus, in revealing his conduct with Michelle to the police, failed to appreciate the *528possible consequences to his own professional standing. I ask myself, had the record reflected that he considered those consequences before speaking to the police, would he have proceeded as he did? Because the findings of fact do not supply enough information adequately to answer that question, I am unable to agree that this consideration “strongly mitigates” (Maj. op. at 526, 996 A.2d at 364, notwithstanding its acknowledgment, at n. 11, that the voluntary disclosure does not fit comfortably within the ABA Lawyer’s Manual’s “full and free disclosure” mitigator) the sanction appropriate to this case. (Emphasis added.) Nonetheless, it is a mitigating consideration, in my view, just not one as persuasive as the Majority opinion views it.

The Majority makes no effort to triangulate, compare, or reconcile its sanction of a flat 60-day suspension with any prior case from this Court. The sanction, for all that appears from the absence of such an analysis, was plucked randomly from the air. While these facts are “unique,” I think a somewhat fuller analysis leads to a different conclusion than that reached by the Majority.

I start from the premise that disbarment would be the appropriate sanction on these facts and Rule violations. Generally, in a case involving “intentional dishonesty, misappropriation cases, fraud, stealing, serious criminal conduct and the like,” we impose “the most severe sanction of disbarment.” Attorney Grievance Comm’n v. Vanderlinde, 364 Md. 376, 413-14, 773 A.2d 463, 485 (2001). Such a sanction is imposed “whether [the misconduct] occur[s] in the practice of law, or otherwise.” Id. at 414, 773 A.2d at 485. To avoid such a severe sanction, a respondent must present evidence, by a preponderance of evidence standard, of mitigation, which this Court is willing to recognize.

The Vanderlinde standard is applicable because Marcalus’s flagship misconduct constituted a felony (Maj. op. at 520-21, 996 A.2d at 361-62) and is thus serious criminal conduct. The hearing judge found no mitigating circumstances. Nevertheless, I do not think disbarment is warranted because of the relative significance of his crimes and his lack of a truly *529dishonest motive. “Although we have hewed to our statement that intentional dishonest conduct [and serious criminal conduct] ordinarily requires disbarment, we have not ignored our corresponding statement that mitigating factors can lead us to impose a less severe penalty.” Attorney Grievance Comm’n v. Garcia, 410 Md. 507, 535, 979 A.2d 146, 162 (2009). In support of that point, we considered Attorney Grievance Comm’n v. Floyd, 400 Md. 236, 929 A.2d 61 (2007) in Garcia. Floyd omitted information from an employment application in an attempt to secure a higher starting salary. Id. at 248, 929 A.2d at 68. We held that she violated Rule 8.4(c) by “engaging in conduct involving deceit or misrepresentation.” Id. at 254, 929 A.2d at 71 (internal quotation marks omitted). We considered the fact that she had no prior disciplinary record and that “the instant violation is not part of a pattern of misconduct.” Id. at 259, 929 A.2d at 74. Therefore, we imposed a 90-day suspension from the practice of law. Id.

In Attorney Grievance Comm’n v. Smith, 405 Md. 107, 115— 16, 950 A.2d 101, 105-06 (2008), the respondent was convicted of impersonating a police officer and intimidating a witness in a criminal case in which Smith represented the defendant.1 We found that his misconduct violated Rule 8.4(a)-(d). Id. at 110, 124, 950 A.2d at 102-03, 111. We determined, however, that there was mitigating evidence that led us to impose a lesser sanction than disbarment. Principally, we highlighted that it was his first disciplinary proceeding after 24 years of practicing law. Id. at 130, 950 A.2d at 114. Further, we observed that “[s]ince late 2003 to early 2004, the time of his actions, indictment, arrest and subsequent nolle prosequi of the charges that precipitated the case at bar, ... Smith has had no subsequent violations. [Additionally, h]e did not seek any personal benefit by reason of his actions.” Id. We were persuaded by that evidence that “Smith’s actions will likely not be repeated and we find that he similarly poses no future *530risk of harm to the public.” Id. Accordingly, we imposed a sanction of a flat 6 months suspension from the practice of law. Id.

Here, Respondent violated the same Rule as Smith, but his sanction is shorter. Marcalus, admitted to the Maryland Bar in 1993, has one prior disciplinary proceeding before this Court during a career of shorter duration than that of Smith. Furthermore, unlike Smith, he clearly sought a personal benefit from his actions, evinced by his response of “what was in it for [him]” when “Michelle” requested a Vicodin pill from him. Maj. op. at 518, 996 A.2d at 360 (alteration in original). Finally, judging from the conduct at issue in the present disciplinary proceeding and his inappropriate conduct in the prior disciplinary proceeding, it cannot be stated with any degree of confidence that Marcalus will not repeat these types of libido-driven actions and that, unlike Smith, he may pose a future risk of harm to the public, unless we persuade him to be more circumspect by means of a more appropriate sanction than the Majority opinion advances, with the prospect of worse to come should we encounter him again on similar or analogous ground.

Similarly, unlike Floyd, Marcalus’s violations demonstrate a pattern of misconduct. Additionally, unlike Floyd, this Court has disciplined Marcalus before. Yet, the Majority opinion imposes a lesser sanction upon Marcalus than we did upon Floyd.

Considering Marcalus’s disciplinary track-record, his solicitation of a personal benefit in this case, and the potential for future harm to the public, I find more aggravating factors than mitigating factors in the present case than were present in Smith and Floyd. As such, I believe that a stronger sanction should be imposed than the Majority does. Accordingly, I would suspend indefinitely Marcalus, with the right to reapply for reinstatement in no sooner than 6 months.

Judges BATTAGLIA and BARBERA authorize me to state that they join the views expressed in this opinion.

. The Court of Special Appeals subsequently reversed Smith's convictions on the ground that his Sixth Amendment right to a speedy trial had been violated. 405 Md. at 111 n. 3, 950 A.2d at 103 n. 3. The State entered all charges as nolle prosequi. Id.