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Attorney Grievance Commission of Maryland v. Marcalus

Court of Appeals of Maryland

March 27, 2015

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
JEFFREY S. MARCALUS

Argued: February 5, 2015

Circuit Court for Anne Arundel County Case No. C-13-183593

Barbra, C.J., Harrell, Battaglia, Greene, Adkins, McDonald, Watts, JJ.

OPINION

Watts, J.

This attorney discipline proceeding involves a lawyer who, among other misconduct, engaged in "sexting"[1] with a female party in litigation in which he represented the opposing party, and informed the female party that a "sugar daddy"[2] would pay her to watch her masturbate.

Jeffrey S. Marcalus ("Marcalus"), Respondent, a member of the Bar of Maryland, texted Lindsay Dudley ("Dudley")-a self-represented party in litigation in which Marcalus represented the opposing party-to, among other things, request a photograph of Dudley in a bathing suit; discuss whether Dudley would be willing to use "toys" with a "sugar daddy"; and state that he "usually wake[s] up with" an erection. After Dudley engaged counsel, her attorney filed a complaint against Marcalus with the Attorney Grievance Commission ("the Commission"), Petitioner.

On November 15, 2013, on the Commission's behalf, Bar Counsel filed in this Court a "Petition for Disciplinary or Remedial Action" against Marcalus, charging him with violating Maryland Lawyers' Rules of Professional Conduct ("MLRPC") 1.7 (Conflict of Interest: General Rule), 4.2 (Communication with Person Represented by Counsel), 4.3 (Dealing with Unrepresented Person), 8.4(b) (Criminal Act), and 8.4(d) (Conduct that is Prejudicial to the Administration of Justice).

On November 20, 2013, this Court designated the Honorable Paul F. Harris, Jr. ("the hearing judge") of the Circuit Court for Anne Arundel County to hear this attorney discipline proceeding. On April 24 and 25, 2014, the hearing judge conducted an evidentiary hearing. On July 22, 2014, the hearing judge filed in this Court an opinion including findings of fact and conclusions of law, concluding that Marcalus had violated MLRPC 8.4(d), but had not violated MLRPC 1.7(a)(2), 4.2(a), 4.3, or 8.4(b).

On February 5, 2015, we heard oral argument, and, immediately afterward, disbarred Marcalus. See Attorney Grievance Comm'n v. Marcalus, __ Md. __, __ A.3d __, Misc. Docket AG No. 64, Sept. Term, 2013, 2015 WL 474517, at *1 (Md. Feb. 5, 2015) (per curiam). We now explain the reasons for Marcalus's disbarment.

BACKGROUND

The hearing judge found the following facts, which we summarize.

In December 1993, this Court admitted Marcalus to the Bar of Maryland.

In 2012, Kendall Minchin ("Minchin") retained Marcalus to represent him in a custody modification action in which the other party was Dudley, the mother of Minchin's child. Initially, Dudley represented herself; thus, Dudley and Marcalus exchanged telephone numbers and e-mail addresses.

Marcalus scheduled a deposition of Dudley for November 14, 2012. On November 13, 2012, Marcalus texted Dudley to confirm that her deposition would occur the next day. Dudley texted Marcalus to respond in the affirmative. Afterward, Marcalus texted Dudley to ask whether she knew anyone who did modeling or promotional work. Soon thereafter, Marcalus texted Dudley to apologize and state that his text about modeling or promotional work was meant for a client, not Dudley.

On November 14, 2012, Marcalus deposed Dudley. Afterward, Marcalus asked whether Dudley would consider moving to the school district in which Minchin lived. Dudley responded that she could not afford to live in the school district in which Minchin lived, and joked that she would need a "sugar daddy" to do so. Later that day, Marcalus texted ...


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