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Lydia E. Lawless, Assistant Bar Counsel (Glenn M. Grossman, Bar Counsel, Attorney Grievance Commission of Maryland), for petitioner.
David G. Whitworth, Esq. (Whitworth Smith LLC, Edgewater, MD), for respondent.
Argued before BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, McDONALD, WATTS, JJ.
[437 Md. 6] John Mark McDonald was admitted to the Bar of this Court on 13 December 1995. After serving as an Assistant State's Attorney in Kent, Talbot, and Queen Anne's Counties, McDonald was appointed Deputy State's Attorney for Queen Anne's County in January 2003. On 12 September 2012, the Attorney Grievance Commission (the " Commission" ), acting through Bar Counsel, filed against McDonald a Petition for Disciplinary or Remedial Action (the " Petition" ), pursuant to Maryland Rule 16-751(a)(1). The Petition alleged that McDonald engaged in a pattern of misconduct related to an " inappropriate relationship" between him and Melissa Knotts, the former office manager for the State's Attorney's Office for Queen Anne's County (the " Office" ), by using improperly his position to " fix" traffic citations issued to Knotts as a personal favor to Knotts, facilitating knowingly Knotts taking leave to which she was not entitled, interfering with the criminal investigation and prosecution of Knotts for embezzling funds from the Office, and deleting (without proper authority) emails from Knotts's former work computer the day after her employment was terminated. Based on the alleged pattern of misconduct, the Petition charged McDonald with violations of the Maryland Lawyers' Rules of Professional Conduct (" MLRPC" ) 8.4(a), 8.4(b), 8.4(C), AND 8.4(D).
[437 Md. 7] The matter was referred to a judge who was specially assigned to the Circuit Court for Queen Anne's County for hearing and the filing of findings of fact and proposed conclusions of law. An evidentiary hearing, spanning five non-consecutive days of testimony and argument, commenced in the Circuit Court on 10 January 2013 and concluded on 31 January 2013.
For reasons explained here, based on the evidence received during the evidentiary hearing, our due consideration of the hearing judge's Memorandum of Findings of Fact and Proposed Conclusions of Law, and the Exceptions and Recommendations for Sanctions of the parties, we disbar McDonald from the practice of law in Maryland.
A. The Hearing Judge's Findings of Fact
The hearing judge filed a Memorandum of Findings of Fact and Proposed Conclusions of Law on 16 April 2013. We
summarize the hearing judge's findings of fact based on the categories of misconduct alleged by Bar Counsel.
1. Ticket Fixing
Bar Counsel's admitted evidence (credited by the hearing judge) reflected that, on five occasions between December 2008 and April 2011, McDonald entered (or arranged for the entry of) dispositions of nolle prosequi for traffic citations issued to Knotts. During their respective consecutive tenures as the State's Attorney for Queen Anne's County, Frank M. Kratovil, Jr. (now a judge of the District Court of Maryland) and Lance G. Richardson maintained the same policy regarding motor vehicle citations or criminal charges involving employees of the office, which policy required immediate self-reporting [437 Md. 8] by any employee who received a citation or was charged, so that the State's Attorney could determine whether the use of a special prosecutor was necessary, and " did not permit an attorney from abusing the office he or she holds by entering a nolle prosequi on charges or citations as a favor to employees...." Although McDonald cross-examined Richardson regarding exceptions to this policy against showing favoritism to employees, each of the instances brought up by McDonald were deemed to be " vastly different than what occurred with the citations issued to Knotts." Any claim by McDonald that the Office had a policy of showing favoritism to employees in regards to citations or charges was found by the hearing judge to be " without merit." McDonald's explanation that he entered, or caused to be entered, nolle prosequi for Knotts's citations in exchange for information she provided about ongoing drug investigations, in conformity with a policy or practice of the Office to encourage such exchanges, was not credible. In an email McDonald sent to Knotts on 29 April 2010, he listed favors he performed for her, including " [f]ive fixed tickets." The hearing judge found ultimately that " each nolle prosequi entered by the Respondent or at his behest for traffic citations issued to Knotts was done as a personal favor to her and without any legitimate business purpose." Based on these findings, the hearing judge concluded, by clear and convincing evidence, that McDonald violated MLRPC 8.4(a) and (d).
2. Interference with the Prosecution of Knotts for Embezzlement
The hearing judge considered Bar Counsel's evidence regarding McDonald's alleged interference with Knotts's embezzlement prosecution by looking: first, at his alleged attempts to intimidate or corrupt the State's witnesses against Knotts; next, at McDonald's alleged attempts to influence Steven Trostle, the Special Prosecutor assigned to prosecute the case against Knotts; and, finally, at McDonald's alleged obstruction of justice regarding the Knotts prosecution.
[437 Md. 9] Attempts to intimidate or corrupt the State's witnesses
The hearing judge made three factual findings regarding Bar Counsel's evidence tendered to prove McDonald's alleged attempts to intimidate or corrupt the State's witnesses against Knotts. The first finding was that McDonald's choice to resign from the Office shortly before a murder trial he was scheduled to prosecute was not an attempt to influence Richardson by forcing him to choose between conceding to McDonald's wishes regarding the Knotts prosecution or being left in the lurch on the murder trial. The hearing judge found credible McDonald's explanation that he left the Office as Deputy when he did because he felt he could not return to the Office if he testified in support of Knotts's anticipated Motion to Enforce
Plea Agreement in the criminal case arising from her theft from the Office. Second, the judge found that certain text messages sent by McDonald to Richardson did not rise to the level of a threat. Third, she resolved that statements made by McDonald to Robert Penny, an investigator for the Office, and April Pyle, an administrative assistant for the Office, that the Office would " go down" if Knotts " went down," were not threats, but were efforts to protect the Office from looking bad if Knotts's defense attorney filed the anticipated Motion to Enforce Plea Agreement. The hearing judge concluded that " [a]lthough [McDonald] was clearly trying to influence the outcome of Knotts's criminal case and acted inappropriately in his quest to do so, the testimony does not establish that he tried to intimidate or corrupt Richardson and Penny."
Attempts to influence Trostle
The hearing judge reached a similar outcome regarding the evidence surrounding McDonald's interactions with Trostle. In response to Bar Counsel's allegations that McDonald urged Trostle to be lenient with Knotts and attempted to influence Trostle's prosecutorial decision-making, the hearing judge concluded that " although [McDonald] attempted to influence the outcome of the Knotts prosecution, his actions in that regard— however inappropriate as they may have been— do not [437 Md. 10] rise to the level of attempting to intimidate or corrupt an officer of the court."
Alleged Obstruction of Justice
The hearing judge made the following factual findings concerning whether McDonald's actions regarding the embezzlement prosecution of Knotts constituted obstruction of justice. Promptly following McDonald's meeting with Richardson and Penny on the day Knotts confessed to the embezzlement, at which meeting he agreed not to involve himself in Knotts's prosecution, McDonald: (1) told Penny there was a problem with the Miranda advisements Penny gave Knotts; (2) called Penny to ask whether criminal charges would be filed and, when Penny answered in the affirmative, " asked Penny to call Richardson to dissuade him from filing charges and went so far as to suggest that the county's human resources office be contacted and a meeting arranged to resolve the issues without the necessity of filing criminal charges" ; and, (3) asked about the amount of restitution due. On 6 July 2011, the day that criminal charges were filed against Knotts, McDonald called repeatedly the police sergeant who was on his way to serve Knotts with the criminal summons and also emailed Richardson to ask what would happen to the charges if restitution were paid immediately (implying that he thought Knotts could pay it right away). Between July 6 and July 15 of 2011, McDonald, while employed still as the Deputy State's Attorney, asked R. Stewart Barroll, Esq., a local attorney, to represent Knotts in the embezzlement case. McDonald stated that he would see to it that any fees related to the representation would be paid. McDonald also represented to Barroll that a plea agreement had been reached already and, thus, his representation of Knotts would more than likely involve only the sentencing.
From 15 July 2011 until 8 September 2011 (the day McDonald resigned), McDonald had " daily or near-daily communications" with Richardson, Penny, and Pyle about the Knotts prosecution. " By way of example, [McDonald] sought information about the status of the case, questioned how the case [437 Md. 11] would proceed and how the matter was being handled by the Special Prosecutor." McDonald contacted Trostle to ask, among other things, if he would be seeking an indictment of Knotts and, if so,
whether McDonald could be contacted at that time so he could assist Knotts in surrendering herself and being released as soon as possible. After learning that Trostle was considering an indictment, McDonald attempted to persuade Richardson and Penny to intervene and to persuade Trostle not to indict or, alternatively, appoint a new Special Prosecutor to the case. McDonald sent text messages later to Richardson suggesting that the payment of restitution should resolve the case, that further prosecution was mean-spirited, and that the indictment sought by Trostle would be " over the top."
The hearing judge found that " during this same time period, [McDonald] was in constant contact with Knotts and her criminal defense attorney." McDonald " requested that Barroll have a subpoena issued for McDonald to testify as a character witness." He also suggested possible defenses to Barroll. Additionally, during a pre-trial conference on 21 October 2011, McDonald called Trostle, after the Special Prosecutor refused to speak to McDonald on an earlier call on Barroll's cell phone, and persisted in asserting that Richardson and Knotts reached previously a binding plea agreement.
Addressing McDonald's assertion that the prosecution of Knotts violated an enforceable plea agreement reached with her on the day she confessed the embezzlement to Richardson and Penny, the hearing judge found that McDonald's " conduct in actively and intentionally interfering in the Knotts prosecution is not mitigated or justified by his belief that an enforceable plea agreement to a misdemeanor charge had been reached between Richardson and Knotts," because, " [e]ven if a plea agreement had been reached, any attempt to enforce the plea agreement rightly belonged with Knotts's defense attorney, not [McDonald]." The judge also found that " no justification [existed] for [McDonald] involving himself in the matter due to his belief that the amount of restitution paid was more than it should have been. That, again, was a matter to be [437 Md. 12] addressed by Knotts's defense counsel, not [McDonald]." She concluded that McDonald's " actions ran afoul of what was appropriate behavior for a senior member of [the State's Attorney's Office]— an office that coincidentally was the victim of Knotts's embezzlement," and that " [t]here is no getting around the fact that the Respondent's personal feelings for Knotts clouded his judgment and caused him to inappropriately involve himself in her prosecution."
3. Alleged Falsification of Timesheets and Abetting a Fraud
Bar Counsel's evidence (credited by the hearing judge) revealed that the Office required employees to submit timesheets, on a bi-weekly basis, indicating the amount of hours worked and leave taken. Knotts would submit all employees' timesheets to Richardson at the end of each period for his approval and signature. In early 2011, Richardson discovered inaccuracies in Knotts's timesheets. When Richardson confronted Knotts about the inaccuracies, she indicated that McDonald " donated" non-sick leave to her. As it turned out, McDonald and Knotts devised an arrangement in which McDonald would complete and sign two timesheets on his behalf for a single pay period, with one sheet reflecting his actual hours worked and another indicating that he had used non-sick leave on certain days. Knotts would submit the second timesheet if she chose not to work on a day in which McDonald indicated that he took leave. For that same time-period, Knotts would complete her own timesheet showing that she had worked on days when she had not worked in fact. When Richardson discovered their arrangement, he told McDonald and Knotts that he did
not approve of it, and, to his knowledge, the practice was not repeated again. The hearing judge concluded from this that the Commission did not prove by clear and convincing evidence that McDonald falsified timesheets, violated a county policy, or abetted Knotts in committing a fraud.
[437 Md. 13] 4. Alleged Unauthorized Access by McDonald to Knotts's Office Computer
The hearing judge made the following factual findings regarding the allegations of McDonald's unauthorized access to Knotts's office computer. McDonald accessed Knotts's computer the day after her employment was terminated and began deleting personal emails. Richardson confronted McDonald in the process, told him that Knotts's former office was a crime scene, and requested that McDonald leave. After informing Richardson he had been deleting personal emails and moving them to the " trash bin" on her computer, McDonald apologized and departed the office. The hearing judge inferred also that McDonald " did not access [Knotts's] computer to delete or change any documents related to the office's bank accounts or financial ledgers" because the testimony showed that Knotts kept the financial records in hard-copy, not electronically, a fact widely known in the Office.
The hearing judge rejected Bar Counsel's arguments that: (1) because McDonald was subpoenaed as a character witness for Knotts in her criminal case, the email communications between them could have been relevant in her case; and, (2) her emails could contain information regarding her spending habits, which would be relevant to the investigation:
The court notes that [McDonald] accessed Knotts's computer the day after her employment was terminated— there was no evidence that [McDonald] knew at that time that he would be subpoenaed as a character witness in a case for which charges had not as yet been filed. Secondly, Knotts confessed her theft to Richardson and Penny the day before. Thirdly, and perhaps most importantly, no evidence was presented that the office employees, including [McDonald], were put on notice that her office and/or her computer was, in fact, a designated crime scene. There was credible evidence presented that the attorneys in the office would, on a fairly regular basis, have access to Knotts's computer to retrieve templates for forms and other documents necessary for their work as Assistant State's Attorneys. Although [McDonald's] reasons for entering her office [437 Md. 14] on the day in question were admittedly for a different purpose, it has not been satisfactorily proven to the court that the access to her computer was wholly impermissible.
The hearing judge concluded that " [a]lthough [McDonald's] decision to enter Knotts's office and to delete personal emails from her office computer may not have been the wisest decision," the evidence did not prove sufficiently that McDonald's " actions amounted to criminal behavior as alleged by [Bar Counsel]."
B. The Hearing Judge's Proposed Conclusions of Law
The hearing judge concluded that Bar Counsel proved by clear and convincing evidence that McDonald's ticket fixing and " unjustified and intentional interference with the prosecution of Knotts's criminal case" were prejudicial to the administration of justice and, thus, violated MLRPC 8.4(d). Based on that conclusion, the hearing judge also found that McDonald violated MLRPC 8.4(a). As to the charged violations of MLRPC 8.4(b) and 8.4(c), the hearing judge concluded that the Commission did not prove by clear and convincing evidence that McDonald's conduct rose " to
the level of obstruction, corruption or criminal behavior," or that it constituted " a finding of dishonesty, fraud, deceit, or misrepresentation."
A. Our Standard of Review
We recently explained our standard of review applicable to attorney disciplinary cases:
This Court has original and complete jurisdiction over attorney discipline proceedings in Maryland. We review the hearing judge's conclusions of law under a non-deferential standard. The hearing judge's findings of fact will be deemed correct if (1) they are not clearly erroneous, or (2), at the Court's option, if neither party filed exceptions to them. If determined to be established, the findings of fact are then used to determine the legal propriety of the legal conclusions of law and the appropriate sanction. We must [437 Md. 15] determine whether there is sufficient evidence to support the hearing judge's legal conclusions, by a clear and convincing standard of proof.
Attorney Grievance Comm'n v. Kremer, 432 Md. 325, 334, 68 A.3d 862, 867-68 (2013) (internal citations and quotation marks omitted).
B. The Parties' Exceptions
Both parties filed exceptions to the hearing judge's Findings of Fact and Proposed Conclusions of Law. Bar Counsel takes no exceptions to the hearing judge's factual findings, but raised four exceptions to the proposed conclusions of law. McDonald raised initially fourteen numbered Exceptions, and later filed four numbered Supplemental Exceptions, challenging several of the hearing judge's factual findings, procedural issues arising before, during, and after McDonald's merits hearing, and the hearing judge's proposed conclusions of law as to his having violated Rules 8.4(a) and 8.4(d).  Additionally, each party filed responses to the other party's exceptions. We address first McDonald's exceptions to ...