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Attorney Grievance Commission of Maryland v. Paul

Court of Appeals of Maryland

June 22, 2018

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
DANA ANDREW PAUL

          Argued: March 5, 2018

          Circuit Court for Anne Arundel County Case No.: C-02-CV-17-000791

          Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

          OPINION

          Getty, J.

         This attorney discipline case involves an attorney who was convicted of traffic offenses stemming from a "road rage" incident spanning two Maryland counties and, in a separate matter, was involved in contentious litigation. On March 16, 2017, the Attorney Grievance Commission of Maryland ("Bar Counsel") filed a Petition for Disciplinary or Remedial Action ("Petition") alleging that Dana A. Paul ("Paul") had violated the Maryland Lawyers' Rules of Professional Conduct ("MLRPC").[1] The Petition alleged that Paul had violated the following rules of the MLRPC: 3.1 (Meritorious Claims and Contentions); 8.2(a) (Judicial and Legal Officials); and 8.4(a), (b), (c), and (d) (Misconduct).

         By Order dated March 20, 2017, we designated Judge Michele D. Jaklitsch ("the hearing judge") of the Circuit Court for Anne Arundel County to conduct an evidentiary hearing concerning the alleged violations and to provide findings of fact and recommended conclusions of law. Md. Rule 19-722(a). After receiving service on May 15, 2017, Paul filed a motion to stay a portion of the proceedings, which the hearing judge denied. The evidentiary hearing was scheduled to begin on September 11, 2017 and last through September 15, 2017.[2] The hearing ultimately took place on September 11, 12, and 14, 2017 ("evidentiary hearing"). At the evidentiary hearing, the hearing judge considered the Petition, Paul's answer to the Petition, exhibits, witness testimony, and arguments of counsel.

         The hearing judge issued a memorandum opinion on November 20, 2017 in which she made detailed findings of fact and recommended conclusions of law to this Court. In her recommended conclusions of law, the hearing judge found that Paul violated MLRPC 8.4(a) and (b) but concluded that Bar Counsel failed to prove by clear and convincing evidence that Paul violated MLRPC 3.1, 8.2(a), 8.4(c), and 8.4(d).

         Both parties filed exceptions to the hearing judge's recommended conclusions of law. Bar Counsel excepts to the hearing judge's failure to conclude that Paul violated MLRPC 8.4(c) and 8.4(d). Bar Counsel recommends a sanction between a six-month suspension and an indefinite suspension. Paul's exceptions counter Bar Counsel's MLRPC 8.4(c) and 8.4(d) arguments, and he additionally opposes the imposition of costs. Paul, believing that he has faced unfair punishment already, argues that we need not impose a sanction. On March 5, 2018, we heard oral argument in this matter. For the reasons explained below, we suspend Paul for thirty days.

         BACKGROUND

         We summarize the hearing judge's factual findings below. Since neither party filed exceptions to the hearing judge's factual findings, we deem those findings established. Md. Rule 19-741(b)(2)(A); Attorney Grievance Comm'n v. McLaughlin, 456 Md. 172, 190 (2017).

         Paul was admitted to the Bar of this Court in June 2002. He is a full-time solo practitioner who has maintained a law office in Anne Arundel County.

         This attorney grievance matter stems from two separate incidents. The first involved multiple confrontations between Paul and another driver which occurred in Wicomico and Dorchester counties. The second incident involved contentious litigation between Paul's client, David Burke, and opposing parties, some of whom were represented by Edward Kerman, Esquire.

         Traffic Incident

         The vehicular incident consisted of dangerous driving, a confrontation at a traffic light, and an accident that led to Paul being charged with multiple misdemeanors. Paul's behavior and recollections both before and at the district and circuit court proceedings are also at issue.

         At the evidentiary hearing, Paul chose not to testify to this portion of Bar Counsel's allegations. Instead, Paul's deposition testimony, taken on August 24, 2017, and testimony during the District Court trial in the criminal case, held on August 20, 2013, was admitted into evidence.

         According to Paul's version, in late afternoon on May 13, 2013, he was driving in the westbound lane on Route 50 in Wicomico County after attending an unrelated pretrial settlement conference held in Salisbury. Paul was traveling in the left lane when a black car in front of him slowed down and he observed that the female driver of the black car was using her mobile phone. Paul moved to the right lane, beeped his horn while passing the black car, and then switched back to the left lane. During his deposition, Paul stated that he beeps his car horn every time he observes a driver using a mobile phone as a way of telling drivers to not use their phones while operating a vehicle.

         The black car then sped past Paul, driving approximately seventy miles per hour and "cut him off while waiving her hand at him." Paul admitted that, after being cut off, he probably drove too close to the black car. The black car sped up and then braked suddenly, causing Paul to nearly collide with the back of the black car. At first, Paul believed that the black car's sudden stop may have been due to the driver's use of her cell phone. After three consecutive sudden stops though, Paul determined that the black car's driver was intentionally slamming on her brakes. Soon after, Paul and the black car approached a red traffic light, at which point Paul exited his vehicle and questioned the driver of the black car about why she was purposely decelerating suddenly. Paul stated that, while he was outside of his vehicle, the driver of the black car made faces at him, gave him the middle finger, stuck her tongue out at him, and generally acted belligerent. After the traffic light turned green, Paul moved to the right lane to "get away from the black car."

         Minutes later, now in Dorchester County, Paul attempted to move from the right lane to the left lane. Although Paul witnessed a car approaching in the left lane from behind, he determined he had enough time and room to enter the left lane. While Paul was shifting lanes, the approaching car sped up and attempted to keep Paul from entering the left lane. Paul then realized that this car was the same black car from the earlier encounter. Paul alleged that the black car moved onto the shoulder located to the left of Paul's car and sped up. Paul heard the rumble strip being driven on and saw the mud flap of the black car being torn off. Paul stated that the black car then attempted to merge into the left lane so he moved into the right lane. Paul was confident that the two vehicles did not make contact. The black car then slowed down and eventually entered the left lane.

         Paul continued driving until he entered Easton and pulled off at a restaurant to use the restroom. When Paul entered the parking lot, a Maryland state trooper approached Paul and asked what had happened to his vehicle. Paul stated that nothing had occurred. The trooper pointed to paint on the side of Paul's vehicle, and Paul asserted that he did not know where the paint came from. The trooper then told Paul that the driver of the black car had reported that Paul hit her vehicle, which Paul immediately denied. After another trooper arrived, Paul was arrested and given traffic citations charging negligent driving, failure to stop after accident involving damages to attended vehicle/property, unsafe lane change, and failure to return to/remain at scene of accident involving attended vehicle/property damage.

         On August 20, 2013, Paul arrived at the District Court of Maryland, sitting in Dorchester County, for his trial. Before the trial began, Paul spoke with the Assistant State's Attorney who was handling his case. When Paul communicated that he did not have an attorney for trial, the Assistant State's Attorney offered to agree to a continuance. After the conversation, Paul hired an attorney in the courthouse hallway to represent him. When the trial began, Paul requested a continuance. Instead of agreeing to the continuance, the Assistant State's Attorney stated that she could not consent to the continuance because two witnesses who had driven multiple hours were present. The district court judge denied Paul's request, and the trial proceeded.

         During the trial, the driver of the black car, Jasmine Taylor, recalled the details of May 13, 2013 differently than Paul's trial testimony. Taylor testified that Paul was tailgating her car presumably because Paul wanted Taylor to move into the right lane. When the cars stopped at the red traffic light, Taylor stated that Paul exited his vehicle and began "aggressively yelling" and displayed his middle finger to Taylor before finally returning to his vehicle. After approximately eight miles, Taylor recalled that, while in the process of passing Paul's vehicle, Paul "swerved his car into [hers]." Taylor described being almost off the road due to Paul's maneuver until Paul eventually moved into the right lane. After this, Taylor moved into the right lane behind Paul, and Paul sped off. Taylor asserted that her car was damaged.

         A driver of a different car who observed both the altercation at the red traffic light and the impact between the vehicles, Roselle Harde, also testified. At the traffic light, Harde asserted that Paul exited his vehicle, displayed both of his middle fingers towards Taylor, and reentered his vehicle and drove off. Approximately eight miles later, Harde was driving in the right lane while Taylor drove next to Harde in the left lane. Harde witnessed Paul's car drive in between Harde and Taylor's cars, causing Harde to move to the right shoulder. Harde attempted to alert Paul that he could drive in front of her in order to avoid injury to any party. Thereafter, Harde observed Paul's vehicle make contact with Taylor's vehicle. After the cars hit, Harde stated that Paul moved behind Taylor and took a picture of Taylor's license plate. Once Taylor then pulled off onto the shoulder, Harde did the same and gave Taylor her name and address. Harde later drove to Easton at the request of the police to identify Paul as the person who struck Taylor's vehicle.

         The district court judge considered the testimony of Harde to be credible and found Paul guilty of two charges: failure to return to/remain at scene of accident involving damage to attended vehicle/property and negligent driving. The district court judge then sentenced Paul to sixty days of incarceration, suspending all but twenty days, to begin immediately. The district court judge did not immediately set a bond and made a request that Paul's attorney return at 4:30 p.m. While confined in a holding cell, Paul made a phone call to his wife. Paul told her that he had not received a fair trial because "these people on the Eastern Shore, they're a bunch of hicks here and they hate people from Annapolis." Paul asserts that, when his attorney conversed with the district court judge at 4:30 p.m., the district court judge set a $100, 000 bond because "he didn't appreciate [Paul] calling people from the Eastern Shore hicks." That evening, Paul paid a bondsman $10, 000 to secure his release.

         Paul appealed the district court judge's ruling to the circuit court and hired a new attorney for the appeal. Although Paul was not privy to the conversations between his new attorney and the Assistant State's Attorney, Paul believed that the attorneys had worked out a plea agreement prior to the court proceeding. At the circuit court trial on September 16, 2013, Paul's attorney offered a plea agreement for the record but the Assistant State's Attorney claimed that the State had not agreed to that deal. In his deposition, Paul admitted that his attorney "maybe thought he had a deal and maybe put too much emphasis on that thought." Thus, before the circuit court judge, Paul pleaded guilty to the two charges he had been found guilty of in district court. After the Assistant State's Attorney reiterated the factual background, the circuit court judge described Paul's actions in the road rage incident as "not only strange" but "dangerous behavior." The circuit court judge sentenced Paul to twenty days of incarceration to be served on weekends, with credit for the one day Paul served prior to posting bond following the district court case.

         Complaint of ...


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