Attorney Grievance Commission v. Smith , 442 Md. 14 ( 2015 )

Attorney Grievance Commission v. Bruce Michael Smith
Misc. Docket AG No. 3, September 2013 Term
Attorney Discipline – Prosecutor’s Failure to Diligently Carry out Obligations
Regarding Victim in Child Sexual Abuse Case – Suspension. An indefinite suspension
with the right to re-apply for admission to the bar no sooner than 60 days after the beginning
of the suspension is the appropriate sanction for a former Assistant State’s Attorney who
failed to communicate at all with the victim or victim’s representative in a child sexual abuse
case to which he was assigned, with the result that (1) his office failed to comply with its
constitutional and statutory obligations toward the victim, (2) he provided incorrect
information to the Circuit Court in connection with a request to postpone the trial, (3) the
sentencing court did not have the benefit of a victim impact statement at the time of
sentencing, and (4) the child victim and victim’s foster mother were not aware of the
prosecution or of the probation condition requiring the defendant to have no contact of any
kind with the victim. MLRPC 1.3 and 8.4(a) & (d).
Circuit Court for Baltimore County
Case No. 13C13004267AG
Argued: November 10, 2014
IN THE COURT OF APPEALS
OF MARYLAND
Misc. Docket AG No. 3
September Term, 2013
A TTORNEY G RIEVANCE C OMMISSION
OF MARYLAND
v.
B RUCE M ICHAEL S MITH
Barbera, C.J.
Harrell
Battaglia
Greene
Adkins
McDonald
Watts,
JJ.
Opinion by McDonald, J.
Harrell, Battaglia, and Watts, JJ., concur and
dissent.
Filed: February 23, 2015
State law requires that law enforcement authorities provide certain notices to victims
and, in the case of a child victim, to the representative of the victim. Among other things,
this requirement allows those specially affected by the criminal justice system to know its
workings and perhaps participate in them. In particular, it provides an opportunity for the
victim, or the victim’s representative, to be heard at critical junctures in the case, such as
sentencing, when the victim’s perspective may be significant to the court’s decision. This
is an important responsibility of a prosecutor who, as the representative of the State, has a
duty to ensure that “justice shall be done.” 1
This attorney disciplinary proceeding arises out of a criminal prosecution involving
an alleged incident of child sexual abuse. Respondent Bruce Michael Smith, at the time an
Assistant State’s Attorney assigned to the Child Advocacy Center in Harford County, was
the prosecutor. In that capacity, he was responsible for notifying the 10-year-old victim and
her foster mother of their rights under State law, preparing them for the trial, and informing
them of critical proceedings in the case. Mr. Smith concedes that he was woefully deficient
in carrying out that responsibility with the result that neither the victim nor her foster mother
was aware of the prosecution of the alleged assailant, they were not able to participate in
sentencing following the defendant’s Alford plea, and they were not aware of the conditions
of the defendant’s later release from custody that forbade any contact with the victim. Mr.
Smith also concedes that his failure to communicate with the victim’s foster mother resulted
1
Berger v. United States, 295 U.S. 78, 88 (1935); see footnote 14 below.
in his giving incorrect information to the Circuit Court, which caused that court to postpone
the original trial date.
We conclude that Mr. Smith failed to act with the reasonable diligence expected of
a member of the bar and that his misconduct prejudiced the administration of justice. He is
suspended indefinitely from the practice of law, with the right to re-apply no sooner than 60
days from the date that his suspension begins.
I
Background
A. Legal Context - Child Victims and Victim Notification
1. Victim Notification Requirements
The Maryland Constitution confers on victims of crimes the right to be treated with
“dignity, respect, and sensitivity” by agents of the State and to be notified and to participate
in criminal proceedings, as may be permitted by implementing legislation. Maryland
Declaration of Rights, Article 47.2 The General Assembly has implemented this “strong
2
Article 47, which was adopted in 1994, provides as follows:
(a) A victim of crime shall be treated by agents of the
State with dignity, respect, and sensitivity during all phases of
the criminal justice process.
(b) In a case originating by indictment or information
filed in a circuit court, a victim of crime shall have the right to
be informed of the rights established in this Article and, upon
request and if practicable, to be notified of, to attend, and to be
heard at a criminal justice proceeding, as these rights are
(continued...)
2
public policy” by enacting several statutes that create “a class of specific, but narrow, rights
for victims.” Hoile v. State, 404 Md. 591, 605, 948 A.2d 30 (2008). In particular, the
Legislature has set forth certain guidelines for the treatment and notification of a victim.
Maryland Code, Criminal Procedure Article (“CP”), §11-1002(b). In addition, it has required
prosecuting attorneys, law enforcement officers, and certain judicial officials to notify
victims of those guidelines. CP §11-104. When the victim is a minor or incompetent person,
a “victim’s representative” – defined as a close relative or guardian of the victim 3 – has
similar rights under these statutes.
Under the statutory guidelines, victims are to be provided with certain services,
amenities, information and notices, and opportunities to participate in the criminal process.4
Pertinent to this case, a victim and a victim’s representative, on written request, “should be
kept reasonably informed by the police or the State’s Attorney of the arrest of a suspect and
the closing of the case, and should be told which office to contact for information about the
2
(...continued)
implemented and the terms “crime,” “criminal justice
proceeding,” and “victim” are specified by law.
(c) Nothing in this Article permits any civil cause of
action for monetary damages for violation of any of its
provisions or authorizes a victim of crime to take any action to
stay a criminal justice proceeding.
3
See CP §11-1001(f).
4
For example, the statute provides that, to the extent practicable, victims should be
provided crisis intervention help and employer intercession services, and a waiting area in
the courthouse separate from the suspect. CP §11-1002(b)(2), (5), (7).
3
case.” CP §11-1002(b)(8). If the alleged crime is a “crime of violence,” such as sexual
abuse of a minor in certain circumstances,5 the victim and victim’s representative should be
notified in particular of specified stages of the criminal case, including trial and disposition.
CP §11-1002(b)(10). In addition, on request of the State’s Attorney and in the discretion of
the trial court, the victim and victim’s representative may submit a victim impact statement
and address the court at sentencing. CP §11-1002(b)(11). The victim and victim’s
representative also have certain rights as to notice when the defendant will be released from
custody. CP §11-1002(b)(14)-(16).
To ensure that victims are aware of their rights, a law enforcement officer or District
Court commissioner is to provide the victim or victim’s representative with a pamphlet
describing those rights on first contact. CP §11-104(b). Once charges have been filed and
made public, the prosecutor is to provide the victim or victim’s representative promptly with
a copy of the pamphlet and a notification request form. CP §11-104(c). The prosecutor is
to certify compliance with that requirement with the clerk of the court. Id. If the victim or
victim’s representative completes and files the notification request form, the prosecutor is,
to the extent practicable, to give the victim or victim’s representative prior notice of each
court proceeding, of the terms of any plea agreement, and of the right to submit a victim
impact statement in connection with sentencing. CP §11-104(e). In addition, that victim or
5
See CP §1-101(e); Maryland Code, Criminal Law Article, §14-101(a)(16).
4
victim’s representative “has the right to attend any proceeding in which the right to appear
has been granted to a defendant.” CP §11-102(a).
2. Child Advocacy Centers
To address what it found to be a lack of “necessary counseling and follow-up
services” for sexual assault victims, the General Assembly directed the Governor’s Office
of Crime Control and Prevention (“GOCCP”) to establish sexual assault crisis programs in
the State, including child advocacy centers. CP §11-923. The State has designated 21 child
advocacy centers throughout the State to provide a “coordinated multi-disciplinary approach
to the problem of child abuse.” Report of GOCCP on Child Advocacy Centers (January 1,
2015) at 1, available at . The centers are to provide “safe, child friendly environments for forensic
interviews and medical evaluations of the alleged child victim and offer continued support
to the child.” Id. The centers are to foster collaboration and “reduce existing gaps in
services.” Id. Pertinent to this case, the Harford County Child Advocacy Center (“Center”)
was established in 1993 and includes on its staff forensic interviewers, therapists, a
pediatrician, local, county, and State law enforcement officers, and Assistant State’s
Attorneys. See .
B. Procedural Context
On March 15, 2013, the Attorney Grievance Commission (“Commission”), through
Bar Counsel, filed with this Court a Petition for Disciplinary or Remedial Action alleging
5
that Bruce Michael Smith violated various provisions of the Maryland Lawyers’ Rules of
Professional Conduct (“MLRPC”) in connection with a child sexual abuse case that he
prosecuted while employed by the Harford County State’s Attorney’s Office and assigned
to the Center. In particular, the Commission charged Mr. Smith with violating MLRPC 1.3
(diligence), 3.3 (candor toward a tribunal), and 8.4(a), (c), and (d) (misconduct). Pursuant
to Maryland Rule 16-752(a), this Court assigned this disciplinary proceeding to Judge Ruth
Ann Jakubowski of the Circuit Court for Baltimore County,6 to conduct a hearing concerning
the alleged violations and to provide findings of fact and recommended conclusions of law.
The hearing judge conducted an evidentiary hearing during October 2013, at which
three witnesses, including Mr. Smith, testified, and at which the parties submitted a
stipulation of facts as well as several documentary exhibits. The hearing judge filed a
detailed Statement of Findings of Fact and Conclusions of Law in December 2013. Based
on her findings of fact and analysis of the law, the hearing judge concluded that Mr. Smith
had violated MLRPC 1.3, but had not violated MLRPC 3.3 or the various subsections of
MLRPC 8.4.
The Commission did not except to the hearing judge’s findings of fact, but did except
to her conclusion that Mr. Smith did not commit all of the alleged violations; it offered
alternative recommendations as to sanction, depending on how we dispose of those
exceptions. Mr. Smith filed no exceptions or recommendation as to sanction.
6
This Court initially designated Judge William O. Carr of the Circuit Court for
Harford County, but upon request of that court re-assigned the case to Judge Jakubowski.
6
C. Factual Context
Because the hearing judge’s fact findings are uncontested, we treat them as
established. Maryland Rule 16-759(b)(2)(A). The hearing judge’s findings and the
undisputed evidence in the record established the following facts.
Bar Admission and Employment
Mr. Smith was admitted to the Maryland Bar on December 16, 1999, and is also
admitted to practice before the United States District Court for the District of Maryland. He
is not a member of the bar of any other state or the District of Columbia.
After working for the Public Defender’s Office, Mr. Smith was hired in 2007 as an
Assistant State’s Attorney for Harford County. He prosecuted cases in the District Court.
He was also designated as one of the Assistant State’s Attorneys assigned to the Center,
which handled cases of child sexual assault and abuse, physical abuse and neglect, child
pornography, and internet solicitation of children. As indicated earlier, the Center is also
staffed by victim/witness advocates, a forensic interviewer, a family advocate, several
detectives, a State trooper, and several child protective service workers.
State v. Head
In 2009, as part of his duties at the Center, Mr. Smith was assigned to prosecute the
case of State v. Nathan Elwood Head, in which the defendant was charged with sexual abuse
of a minor and a fourth degree sexual offense. According to documents in the State’s
Attorney’s file, the 10-year old victim had been brought to the Center in February 2009 by
7
her foster mother. There, a social worker (assisted in some respects by a detective)
interviewed the child in some detail concerning an alleged assault by Mr. Head, the 19-year
old former boyfriend of her foster sister. The interview was recorded and transcribed, and
the matters described by the victim formed the basis of the charges against Mr. Head. The
social worker also recorded an interview with the foster sister which was also transcribed and
placed in the file.
Charges were filed against Mr. Head, who was in custody on an unrelated charge. Mr.
Smith was assigned to prosecute the case. Toward the end of April 2009, Mr. Smith received
notice from the Circuit Court for Harford County that the trial would begin on September 8,
2009.
On September 8, Mr. Smith appeared in the Circuit Court and requested a
postponement because, according to Mr. Smith, a “necessary, critical witness,” the foster
mother of the 10-year old victim, was not available. According to the transcript of that
hearing, Mr. Smith stated that he believed the foster mother was in Connecticut for a medical
emergency, but said, “I don’t have my note with me.” The trial judge heard from defense
counsel, who said “it was [her] understanding that [they] weren’t going to be reached for
trial” that day, and did not object to the postponement. Finding good cause, the trial judge
postponed the case until January 4, 2010 – well past the October 6, 2009 Hicks date.7
7
Maryland Rule 4-271 requires that a criminal trial be scheduled within 180 days of
the appearance of counsel or the defendant’s first appearance before the circuit court,
whichever is earlier, unless the trial date is postponed for good cause. The rule’s deadline
(continued...)
8
On the new trial date, Mr. Smith again appeared at that proceeding as the prosecutor.
The defendant entered an Alford plea8 to a fourth degree sexual offense and was found guilty.
The court then proceeded to sentencing. Mr. Head’s attorney and his grandfather addressed
the court on his behalf, but neither the victim nor her foster mother was present and the State
did not offer a victim impact statement. Mr. Head was sentenced to one year imprisonment,
with all but 142 days suspended and with credit for time served, and three years’ probation
As a special condition of his probation, Mr. Head was not to have any contact with the
victim. There is no indication in the record that anyone from the State’s Attorney’s Office
or the Center had contacted the foster mother to advise her of the proceeding prior to the
sentencing; nor did anyone subsequently advise her of the conditions of Mr. Head’s probation
that related to the victim.
Discovery of Non-Compliance with Victim-Related Responsibilities
More than two years later, in March 2012, when Mr. Head was about to be released
from custody, the Division of Correction called the State’s Attorney’s Office to obtain victim
contact information and the State’s Attorney’s office volunteered to notify the victim. When
7
(...continued)
for commencing trial is sometimes referred to colloquially as the “Hicks date” – a reference
to State v. Hicks, 285 Md. 310, 318, 403 A.2d 356 (1979), in which this Court held that the
sanction for a violation of the predecessor version of Rule 4-271 was dismissal of the
charges. As noted above, if the court finds good cause for the postponement there is no
violation of the rule.
8
In an Alford plea, a defendant admits that the State has sufficient evidence to obtain
a conviction, but does not admit to committing the crime. See North Carolina v. Alford, 400
U.S. 25 (1970).
9
the State’s Attorney’s Office contacted the foster mother (who had adopted the child in the
meantime) to tell her that Mr. Head was being released from custody, it was surprised to
learn that she had no idea that the case had been prosecuted.9 She had not heard anything
from the Center or the State’s Attorney’s Office since reporting her daughter’s allegations
of abuse and assault.10
The State’s Attorney himself then reviewed his office’s file for State v. Head and the
transcripts of the hearings in that case. The file contained the transcribed interviews with the
victim and her sister, counsels’ entries of appearance, discovery requests, and the State’s
responses to discovery – including a list of potential witnesses that included the victim, her
foster mother, a detective, and a social worker. However, the note that Mr. Smith had
referenced during the September 8, 2009 hearing when he requested a postponement was not
in the file.
Several other items were also noticeably absent from the file. The file did not contain
a copy of the victim notification request form that the prosecutor is required to provide the
victim. Nor was there any indication whether a completed form had been returned by the
9
The record does not indicate who at the State’s Attorney’s Office made the contact.
10
It remains a bit of a mystery in this record as to why there was apparently no effort
by anyone at the Center to follow up with the victim or her foster mother from the time of
her interview in February 2009 until three years later. In any event, Mr. Smith was as
emphatic in taking responsibility for the State’s lack of communication with the victim as he
was in denying that he intentionally misled the trial court. He testified that “it is without
question that that responsibility rested on my shoulders. Whether it was assigned to
administrative staff or not, I’m responsible for ensuring that it’s getting done and it did not
get done.”
10
victim or whether Mr. Smith had filed the required certification with the court attesting that
the form had been sent to the victim. While the file included summonses for the defendant
and the investigating detective, there were no summonses for the victim or her foster
mother.11
According to the State’s Attorney, the prosecutor of a child abuse case is responsible
for meeting with the victim to prepare the child for trial, and the office commonly files a
notice of intent to use a child victim’s recorded statement at trial. Mr. Smith had apparently
neither met with the victim nor attempted to introduce her statement. There was no
indication in the prosecutor’s file in the Head case of any communication with the victim or
her foster mother between September 8, 2009, the date of the postponement, and the new trial
date, January 4, 2010.
Confrontation and Termination of Employment
After being informed that the victim was unaware of the Head prosecution and after
reviewing the office file and court file in that case, the State’s Attorney confronted Mr. Smith
about his handling of the case, his lack of communication with the victim, and his
representations to the trial court that a key witness was unavailable, despite the fact that Mr.
Smith had apparently never spoken with her. Mr. Smith, who was visibly shaken at the
meeting, told the State’s Attorney that the note he had referenced at the postponement
11
According to the Harford County State’s Attorney, the clerical staff in his office
prints summonses for each trial, and the attorney assigned to the case reviews and signs them
before sending them out.
11
hearing two and a half years earlier should be in the case file, but could not offer any other
explanation. The State’s Attorney requested, and received, Mr. Smith’s immediate
resignation. He then reported the incident to the Commission, which ultimately led to this
proceeding.
The Hearing in this Proceeding
At the hearing in this proceeding, Bar Counsel presented the testimony of the State’s
Attorney and the victim’s foster mother. The hearing judge found both to be credible
witnesses. In addition, Bar Counsel introduced the State’s Attorney’s file, excerpts from the
court file in the Head case and Bar Counsel’s deposition of Mr. Smith, transcripts from the
court hearings, and a stipulation of facts concerning Mr. Smith’s career and the Head case.
In his testimony, the State’s Attorney described the nature of the Center and the
prosecutor’s general function there, provided some background information concerning Mr.
Smith’s employment with his office, and detailed the results of his own investigation into the
handling of the Head case. Among other things, the State’s Attorney testified that a trial
attorney is to make some kind of contact with the victim concerning the disposition of a case.
If the victim is not present at the disposition, a letter is to be sent detailing the outcome or a
victim advocate makes contact with the victim or the victim’s representative.12
12
The State’s Attorney testified regarding the usual practice in the Child Advocacy
Center of contacting victims after trial as follows:
Bar Counsel: All right. Was it Mr. Smith’s responsibility to notify the
victim of the, of disposition of the charges against Mr.
(continued...)
12
The victim’s foster mother testified as to the events that led her to believe that Mr.
Head had sexual contact with her foster daughter and her decision to take the victim to the
Center. At the Center she had consented to the audio and video taping of the social worker’s
interview of the victim. The foster mother said that she did not hear anything further about
the case from anyone at the Center or at the State’s Attorney’s office. She said that she did
not initiate any further contact herself on the assumption that the matter had been dropped
after their visit to the Center. When contacted three years later about the release of Mr.
Head, she was surprised to learn of the prosecution. She said she would have cooperated in
the prosecution, had she known about it. She said she had not told anyone at the State’s
Attorney’s Office that she would be unable to attend a hearing or trial in the case.
Mr. Smith did not cross-examine either of the Commission’s witnesses. He testified
on his own behalf and was cross-examined by Bar Counsel. The hearing judge concluded
that he appeared to be “credible, genuine and truthful” in that testimony.
12
(...continued)
Head?
[State’s Attorney]: I mean, generally with these kind of cases, the attorney
does make some kind of contact but we also have a
system where a letter, if the victim is not present in
Court, there is a letter sent to the victim detailing the
outcome of the case and often either one of the – because
of the contacts with the victim, the victim advocate or
family advocate makes contact and let [sic] them know
what the outcome is.
13
Mr. Smith testified that he had no independent memory of the case but had refreshed
his memory by reviewing the file. Concerning his lack of communication with the victim,
Mr. Smith said his normal practice was to wait until the eve of trial to prepare a child victim
for testifying, in order to minimize the child’s trauma and exposure to the criminal process.
The substance of the victim’s testimony was already detailed in the transcription of her
interview with the Center’s social worker. According to Mr. Smith, he would have expected
the victim to testify on September 9, but that changed when he sought a postponement on
September 8, which was why he never held a pre-trial interview with her. By the January
trial date, he knew he had reached a plea deal with the defendant, so once again he did not
need to bring the victim in to prepare for trial. Like the State’s Attorney, Mr. Smith alluded
to the fact that victim’s advocates at the Center would communicate with victims, but
admitted that he bore responsibility for the fact that no one had contacted the foster mother.13
13
At the hearing, the following exchange took place:
Bar Counsel: Based on your review of the file, what was it that you
had done to alert [the foster mother] that there was going
to be a trial on September the 8th of 2009?
Mr. Smith: I – there’s nothing that shows in the file any contacts. I
have no idea what did or did not take place with that. I
have no idea whether any of the victim advocates had
either attempted to contact her or did not contact her.
Bar Counsel: But it was your job to –
Mr. Smith: Ultimately it was my responsibility to ensure that that
would take place, yes.
14
With respect to the postponement of the initial trial date, Mr. Smith said that someone
gave him a note that the foster mother was unavailable for the original trial date. He
admitted that the note was not in the file and that there was no evidence in the file of a
subpoena for the victim or her foster mother, a victim notification form, or a certification to
the court that he had sent the form. While he did not dispute the foster mother’s testimony
that she would have been available for a September 2009 trial, he denied a suggestion by Bar
Counsel that he had fabricated the idea of a note in order to postpone the case because he was
unprepared for trial. On cross-examination, he stated that he had been carrying a heavy
District Court caseload at that time and had asked that it be reduced so that he could devote
more time to his work at the Center.
Hearing Judge’s Conclusions as to Alleged Violations
The hearing judge found that Mr. Smith failed to exercise reasonable diligence in
carrying out his responsibilities in the Head case but that he did not intentionally deceive the
trial judge in seeking a postponement of the initial trial date. The hearing judge concluded
that Mr. Smith’s admitted lack of diligence was a violation of MLRPC 1.3, but that in the
absence of clear and convincing evidence that he intended to deceive the trial court, he had
not violated MLRPC 3.3 or 8.4(a), (c), or (d).
15
II
Discussion
This Court reviews a hearing judge’s conclusions of law de novo – i.e., without any
special deference. Maryland Rule 16-759(b)(1). In the course of that review, we consider
any exceptions filed by the parties. As noted above, Mr. Smith did not file any exceptions.
The Commission excepted to the hearing judge’s conclusions that Mr. Smith violated only
MLRPC 1.3 and not the other rules cited in the charged violations. We discuss each of the
alleged violations in turn.
Lack of Diligence – MLRPC 1.3
Under MLRPC 1.3, a lawyer is to “act with reasonable diligence and promptness in
representing a client.” Unreasonable delay and procrastination in the discharge of one’s
duties to a client may result in irreversible prejudice. See MLRPC 1.3, comment [3].
Although neither the victim nor her foster mother was a “client” of Mr. Smith, as the
Assistant State’s Attorney assigned to the Head case, he was “the representative not of an
ordinary party to a controversy, but of a sovereignty ... whose interest ... in a criminal
prosecution is ... that justice shall be done.” Berger v. United States, 295 U.S. 78, 88
(1935);14 see also Attorney Grievance Comm’n v. McDonald, 437 Md. 1, 46, 85 A.3d 117
14
In an oft-quoted passage, the Supreme Court described the role of the prosecutor:
The [prosecutor] is the representative not of an ordinary party to
a controversy, but of a sovereignty whose obligation to govern
impartially is as compelling as its obligation to govern at all; and
(continued...)
16
(2014) (a prosecutor is “held to even higher standards of conduct than other attorneys due
to [the] unique role as both advocate and minister of justice”) (citation and quotation marks
omitted). In that capacity, Mr. Smith was responsible for ensuring compliance with the
State’s victim notification law in order to properly carry out his responsibilities as the
prosecutor in the Head case.
Mr. Smith agrees that he had ultimate responsibility for compliance with the victim
notification obligations – provision of the victim notification form to the victim and her
foster mother, communication with the victim and her foster mother about key dates in the
prosecution, notification of the foster mother of the disposition of the case and the probation
condition that barred Mr. Head from contact with the victim. He concedes that he did none
of those things. In connection with the request to postpone the trial, he also concedes that
he did not use “due diligence” in verifying the information in the note that he believes he
received – that the victim’s foster mother was unavailable on the initial trial date.
14
(...continued)
whose interest, therefore, in a criminal prosecution is not that it
shall win a case, but that justice shall be done. As such, he is in
a peculiar and very definite sense the servant of the law, the
twofold aim of which is that guilt shall not escape or innocence
suffer. He may prosecute with earnestness and vigor - indeed,
he should do so. But, while he may strike hard blows, he is not
at liberty to strike foul ones. It is as much his duty to refrain
from improper methods calculated to produce a wrongful
conviction as it is to use every legitimate means to bring about
a just one.
Berger v. United States, 295 U.S. 78, 88 (1935).
17
We agree with the hearing judge that Mr. Smith failed to “act with reasonable
diligence and promptness” in his obligations to communicate with the victim or her foster
mother, and in the need to verify information he presented to the court to obtain a
postponement. He therefore violated MLRPC 1.3.
Conduct Prejudicial to the Administration of Justice – MLRPC 8.4(d)
Under MLRPC 8.4(d), it is professional misconduct for a lawyer to “engage in
conduct that is prejudicial to the administration of justice.” Not every unnecessary delay or
failure to carry out duties expeditiously violates this rule. See Attorney Grievance Comm’n
v. Zeiger, 428 Md. 546, 559, 53 A.3d 332 (2012) (per curiam) (no MLRPC 8.4(d) violation
when attorney’s delay in acting as estate administrator caused no substantial harm to anyone).
On the other hand, a repeated failure to communicate with clients (or others) that impairs the
discharge of the attorney’s duties in a case can violate the rule. See Attorney Grievance
Comm’n v. Brown, 353 Md. 271, 286, 289, 725 A.2d 1069 (1999) (attorney’s failure to
communicate with client and appear at hearing violated MLRPC 8.4(d)). “The prejudice to
the administration of justice may also be measured by the practical implications the
attorney’s conduct has on the day-to-day operation of our court system.” Attorney Grievance
Comm’n v. Dore, 433 Md. 685, 710, 73 A.3d 161 (2013). An attorney may also violate
MLRPC 8.4(d) when the attorney’s conduct “reflects negatively on the legal profession and
sets a bad example for the public at large.” Attorney Grievance Comm’n v. Brady, 422 Md.
441, 460, 30 A.3d 902 (2011).
18
In her conclusions of law, the hearing judge found that Mr. Smith’s “singular incident
of a lack of due diligence” did not violate MLRPC 8.4(d), in large part because he did not
act “with the intentionality required” for such a violation – a criterion that the hearing judge
derived from our decision in Attorney Grievance Comm’n v. Rand, 429 Md. 674, 716, 57
A.3d 976 (2012).
The Commission devotes the major part of its exceptions to its contention that,
contrary to the conclusion of the hearing judge, Mr. Smith’s conduct violated MLRPC 8.4(d).
The Commission argues that Mr. Smith’s conduct was not a singular incident, but a
continuous course of neglect that spanned at least nine months, from the time the case was
assigned to him in March 2009 through the January 2010 plea deal, and even afterwards
when he failed to advise the victim or her foster mother of the disposition of the case. It
points out that this persistent behavior deprived the victim and her foster mother of the
opportunity to exercise, at any time in the Head prosecution, the rights accorded them under
Article 47 of the State Constitution and its implementing legislation.
We agree that Mr. Smith’s consistent failure to ensure that the appropriate information
and notices were provided to the victim and her foster mother, coupled with his failure to
verify the information he says that he received concerning the foster mother’s unavailability
for trial, was prejudicial to the administration of justice. The trial – or, as it turned out,
alternative disposition – in the Head case was unnecessarily postponed, the victim and
victim’s representative were denied their right to observe and perhaps participate in the case,
19
and the sentencing court was denied whatever input the victim might have provided in
making that important decision.15 In our view, Mr. Smith’s conduct was “prejudicial to the
administration of justice.”
In concluding that a violation of MLRPC 8.4(d) was not established, the hearing judge
accurately quoted our prior decision in Rand as stating that a “mere mistake” by an attorney
in that case did not “rise to the level of intentionality required for an 8.4 violation.” Rand,
429 Md. at 716 (emphasis added). That statement, however, should be understood in the
context of the facts of the Rand case. In that case, the issue concerning a possible MLRPC
8.4(d) violation was whether an attorney, who had taken on representation of a group of
county correctional officers in a pay dispute, had intentionally misled one officer who had
delayed joining the group about that particular officer’s individual legal right to obtain
financial relief. The attorney treated that officer similarly to the other members of the group
in keeping them informed of the progress of the dispute and their collective interests, but
failed to provide the late-joining officer with additional information concerning the
consequences of the officer’s delay on his eligibility for some of the relief. The hearing
judge in Rand found that the attorney did not have the intent to mislead the late-joining
15
The record in this case does not tell us whether the victim in the Head case – or her
foster mother – would have had some useful input for the trial judge to consider when she
sentenced Mr. Head. But it is the opportunity to provide such input that is important and
underlies the statutory obligation to notify victims in certain cases of key proceedings when
the victim requests such notice.
20
officer and this Court deferred to that finding, with the result that the attorney was held not
to have violated MLRPC 8.4(d).
In this case, Mr. Smith’s inaction was more than a “mere mistake.” Rather, it
amounted to gross negligence in the discharge of the prosecutorial function. His conduct
deprived the child victim and her foster mother of the rights to: (1) know the alleged
assailant was being prosecuted, (2) attend the hearings in the case against him, (3) submit a
victim impact statement to the court prior to or at his sentencing, and (4) know the terms of
the defendant’s probation upon release. Even if he did not affirmatively intend to mislead
the court or disadvantage the victim, his conduct threatened the fair and efficient
administration of justice.
Accordingly, we sustain Bar Counsel’s exception and hold that Mr. Smith violated
MLRPC 8.4(d).
False Statements and Misrepresentations – MLRPC 3.3 and 8.4(c)
The alleged violations of MLRPC 3.3 and 8.4(c) both turn on whether Mr. Smith
made a knowing false statement to the trial court in State v. Head at the time he asked for a
postponement of the initial trial date. Under MLRPC 3.3, “[a] lawyer shall not knowingly...
make a false statement of fact or law to a tribunal or fail to correct a false statement of
material fact or law previously made to the tribunal by the lawyer.” This requirement is
referred to as “candor towards the tribunal.” It is based on the idea that “[e]very court has
the right to rely upon an attorney to assist it in ascertaining the truth of the case before it.
21
Therefore, candor and fairness should characterize the conduct of an attorney at the
beginning, during, and at the close of litigation.” Dore, 433 Md. at 703 (quoting In re
Discipline of Wilka, 638 N.W.2d 245, 249 (S.D. 2001)) (ellipses omitted). In order to
establish a violation of MLRPC 3.3, there must be clear and convincing evidence, not only
that an attorney provided false information, but also that the attorney knew the information
to be false. Attorney Grievance Comm’n v. Ward, 394 Md. 1, 32, 904 A.2d 477 (2006).
A violation of MLRPC 3.3 will also often violate MLRPC 8.4(c) as both provisions
concern dishonest conduct. See Dore, 433 Md. at 707. Under MLRPC 8.4(c), a lawyer is
not to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” An
attorney who knowingly tells a client or a court a falsehood on a matter material to the hearer
can violate MLRPC 8.4(c), even if the attorney has no intent to defraud anyone. See, e.g.,
Attorney Grievance Comm’n v. Siskind, 401 Md. 41, 70, 930 A.2d 328 (2007) (“words
spoken by an attorney who knows they were untrue involves an inherent intent to deceive”);
Attorney Grievance Comm’n v. Reinhardt, 391 Md. 209, 222, 892 A.2d 533 (2006) (telling
a client a lie about the progress of her case out of embarrassment violated MLRPC 8.4(c)).
While this Court has sometimes drawn fine distinctions among the four horsemen of the rule
– dishonesty, fraud, deceit and misrepresentation – each pertains to a false statement by an
attorney only if the attorney makes use of the false statement knowing that it is untrue.
It is undisputed that Mr. Smith gave the hearing judge false information when he
requested the postponement in September 2009. The foster mother was not in another state,
22
had no medical emergency, and had not contacted the State’s Attorney’s Office about her
unavailability. Whether Mr. Smith violated MLRPC 3.3 or 8.4(c) thus depends on whether
he knew that information was false when he provided it or had an opportunity to correct it.
As noted above, the hearing judge found Mr. Smith’s testimony before her to be “genuine”
and “credible” and accepted his explanation that he had been relying on a note that he
received that he thought pertained to the foster mother, although he did nothing to verify it.
Accordingly, the hearing judge found that there was not clear and convincing evidence of a
necessary element of the charges under MLRPC 3.3 and 8.4(c).
The Commission has excepted to that conclusion. The Commission argues that Mr.
Smith must have intentionally misled the trial court because, in its view, he was likely
unprepared for trial and needed a reason to postpone the trial past the Hicks date. The
Commission reasons that, as Mr. Smith had not communicated directly with the victim or
foster mother about the case, it was unlikely that the foster mother would try to contact him
about missing a trial date. It also argues that he should have contacted the foster mother at
some point before the new trial date to prepare her for trial, and discounts his explanation
that he did not do so because of the anticipated Alford plea. The Commission infers that Mr.
Smith was intentionally dishonest.
The determination as to whether Mr. Smith violated MLRPC 3.3 and 8.4(c) turns on
an assessment of his credibility when he testified that he did not purposely mislead the
Circuit Court at the hearing on September 8, 2009. As this Court has reiterated on numerous
23
occasions, we defer to the fact findings of the hearing judge “because she is in the best
position to assess first hand a witness’s credibility.” Attorney Grievance Comm’n v.
Sheridan, 357 Md. 1, 17, 741 A.2d 1143 (1999). This is particularly true when it comes to
assessing an attorney’s state of mind as to an intent to deceive. “We are constrained to accept
that assessment, particularly given the judge’s superior ability to evaluate demeanor–based
credibility.” Sheridan, 357 Md. at 29; see also Attorney Grievance Comm’n v. Tanko, 427
Md. 15, 49, 45 A.3d 281 (2012) (deferring to trial judge’s credibility determinations
regarding the attorney’s intent to deceive, or lack thereof, for purposes of assessing alleged
MLRPC 8.4(c) violation).
It is evident from the detailed findings of fact that the hearing judge carefully
considered the testimony and other evidence presented at the hearing, including Mr. Smith’s
testimony. From the perspective of a reviewing court, we cannot say that the hearing judge’s
assessment of Mr. Smith’s credibility was clearly erroneous. Accordingly, we overrule the
Commission’s exceptions to the hearing judge’s conclusions regarding the alleged MLRPC
3.3 and 8.4(c) violations and decline to find violations of those provisions.
MLRPC 8.4(a)
Under MLRPC 8.4(a), “[i]t is professional misconduct for a lawyer to ... violate or
attempt to violate the [MLRPC], knowingly assist or induce another to do so, or do so
through the acts of another.” As this Court has frequently stated, when an attorney violates
24
a rule of professional conduct, the attorney also violates MLRPC 8.4(a).16 As we have found
violations of MLRPC 1.3 and 8.4(d), perforce there is also a violation of MLRPC 8.4(a).17
III
Sanction
The underlying purpose of attorney disciplinary proceedings – and any sanction
imposed – is protection of the public, not punishment of the attorney. When imposed, a
sanction “should be commensurate with the nature and gravity of the violations and the intent
with which they were committed, taking into account the particular circumstances of each
case and any aggravating or mitigating factors.” Attorney Grievance Comm’n v. Khandpur,
421 Md. 1, 18, 25 A.3d 165 (2011) (internal quotations omitted). The Court frequently looks
to a list of possible aggravating and mitigating factors identified by the American Bar
Association’s Standards for Imposing Lawyer Sanctions, §§9.22, 9.32, reprinted in
Compendium of Professional Responsibility Rules and Standards (2012). See, e.g., Attorney
16
See, e.g., Attorney Grievance Comm’n v. Nelson, 425 Md. 344, 363, 40 A.3d 1039
(2012).
17
The hearing judge did not separately discuss MLRPC 8.4(a) in the recommended
conclusions of law, but did subsume it in her conclusion that the Commission had not
provided clear and convincing evidence of the requisite intent for violations of MLRPC 8.4
generally. The Commission did not except separately as to the failure to find a violation of
MLRPC 8.4(a). Because there is no special intent requirement for a violation of 8.4(a) and
because we conclude that Mr. Smith violated MLRPC 1.3 and MLRPC 8.4(d), we find that
there was a violation of MLRPC 8.4(a). We need not belabor the point because, as a simple
reflection of the other violations found, it adds nothing to our consideration of the
appropriate sanction.
25
Grievance Comm’n v. Shapiro, ___ Md. ___, ___ A.3d ____ (2015), slip op. at 41; Attorney
Grievance Comm’n v. Coppock, 432 Md. 629, 648-49 & nn. 17-18, 69 A.3d 1092 (2013).
The hearing judge found no aggravating factors. As to mitigating factors, the hearing
judge found that Mr. Smith accepted responsibility for failing to contact the victim and her
foster mother, that he was not dishonest, and that he was cooperative during the proceedings.
We add that there is no evidence that Mr. Smith has a prior disciplinary record.
The Commission recommends that, if this Court does not find violations of MLRPC
3.3 and 8.4(c), we suspend Mr. Smith indefinitely with the right to apply for reinstatement
in 60 days.18 As noted above, Mr. Smith did not file a recommendation as to the appropriate
sanction for what he admits was a serious dereliction of his duties as a prosecutor. When
pressed at oral argument, he suggested a public reprimand, in light of the fact that the
incident cost him his job.
18
In the event we granted the Commission’s exceptions and found violations of
MLRPC 3.3 and 8.4(c), the Commission initially recommended disbarment. At oral
argument, however, in light of our recent decision in Attorney Grievance Comm’n v. Litman,
440 Md. 205, 101 A.3d 1050 (2014), Bar Counsel modified its position to recommend an
indefinite suspension with the right to reapply in six months if we found that Mr. Smith had
violated MLRPC 3.3 and 8.4(c).
In Litman, 440 Md. at 218, this Court rejected the Commission’s recommendation for
disbarment when an attorney “misrepresented facts to tribunals in an attempt to further his
client’s goals.” We noted that “we have not ... always found disbarment to be the appropriate
sanction when there is misrepresentation involved, especially when misappropriation of
money is not involved,” and indefinitely suspended the attorney with the right to reapply in
six months. Id. at 218 (quoting Attorney Grievance Comm’n v. Sperling, 432 Md. 471, 69
A.3d 478 (2013)) (ellipses added).
26
We accept the Commission’s recommendation. We have concluded that Mr. Smith
failed to act with the reasonable diligence expected of a member of the bar and that his
inaction was prejudicial to the administration of justice in the prosecution of a child sexual
abuse case and in the State’s compliance with the rights accorded victims under State law.
These are serious violations, but the hearing judge found they were not committed with
fraudulent or deceitful intent. This Court has often referenced the lack of fraudulent intent
when imposing a suspension – in lieu of disbarment – for serious violations. See, e.g.,
Khandpur, 421 Md. at 20; Attorney Grievance Comm’n v. Nichols, 405 Md. 207, 218, 950
A.2d 778 (2008). An indefinite suspension is appropriate. The recommended period of
suspension is consistent with the sanction imposed in prior cases in which the misconduct
consisted at least in part of a lack of reasonable diligence. See, e.g., Attorney Grievance
Comm’n v. Mooney, 359 Md. 56, 97-98, 753 A.2d 17 (2000) (indefinite suspension with the
right to re-apply in 90 days when attorney failed to act with reasonable diligence, as well as
committed numerous other violations with respect to four clients). In light of the mitigating
factors found by the hearing judge, Mr. Smith may re-apply no sooner than 60 days after the
beginning of his suspension.
I T IS SO O RDERED; R ESPONDENT S HALL P AY
A LL C OSTS AS T AXED B Y THE C LERK OF T HIS
C OURT, I NCLUDING THE C OSTS OF A LL
T RANSCRIPTS, P URSUANT TO R ULE 16-761, FOR
W HICH S UM J UDGMENT IS E NTERED IN F AVOR
OF THE A TTORNEY G RIEVANCE C OMMISSION
A GAINST B RUCE M ICHAEL S MITH.
27
Circuit Court for Baltimore County
Case No. 03-C-13-004267
Argued: November 10, 2014
IN THE COURT OF APPEALS
OF MARYLAND
Misc. Docket AG No. 3
September Term, 2013
______________________________________
ATTORNEY GRIEVANCE COMMISSION
OF MARYLAND
v.
BRUCE MICHAEL SMITH
______________________________________
Barbera, C.J.
Harrell
Battaglia
Greene
Adkins
McDonald
Watts,
JJ.
______________________________________
Concurring and Dissenting Opinion by Watts,
J., which Harrell and Battaglia, JJ., join
______________________________________
Filed: February 23, 2015
Respectfully, I concur and dissent.1 This attorney discipline proceeding involves a
lawyer who displayed an egregious lack of diligence and candor in his capacity as an
Assistant State’s Attorney representing the State in a prosecution against a defendant
charged with committing crimes against a child. Under this attorney discipline
proceeding’s unique circumstances, without hesitation, I would hold that the hearing
judge’s finding that Bruce Michael Smith (“Smith”), Respondent, was credible is not
entitled to deference from this Court and that clear and convincing evidence established
that Smith violated Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”)
3.3(a)(1) (Candor Toward the Tribunal) and 8.4(c) (Dishonesty, Fraud, Deceit, or
Misrepresentation).
BACKGROUND
Because the decision not to defer to the hearing judge’s credibility finding is based,
in large part, on the many facts of the case that amply demonstrate Smith was credible
neither in the underlying criminal prosecution before the circuit court nor in the hearing
before the hearing judge, I summarize the hearing judge’s findings of fact.
On December 16, 1999, this Court admitted Smith to the Bar of Maryland. During
the time period relevant to this attorney discipline proceeding, Smith was an Assistant
State’s Attorney for the Office of the State’s Attorney for Harford County, Maryland.
Joseph I. Cassilly (“Cassilly”) had been the State’s Attorney for Harford County since
1
I concur with the Majority’s conclusions that Smith violated Maryland Lawyers’
Rules of Professional Conduct (“MLRPC”) 1.3 (Diligence), 8.4(d) (Conduct that is
Prejudicial to the Administration of Justice), and 8.4(a) (Violating the MLRPC).
1983; and, in 2007, Cassilly hired Smith as an Assistant State’s Attorney.
In August 2007, Smith was assigned to prosecute cases handled by the Harford
County Child Advocacy Center (“the CAC”). The CAC had been established to handle
cases involving child sexual assault and abuse, child pornography, and internet solicitation
of children. The CAC is staffed by prosecutors, victim/witness advocates, a forensic
interviewer, child protective service workers, and sheriff’s detectives.
On or about March 31, 2009, Nathan Head (“Head”) was indicted for sexual abuse
of a minor and fourth-degree sex offense. As part of his duties with the CAC, Smith was
assigned to prosecute Head in the Circuit Court for Harford County (“the circuit court”),
beginning with grand jury proceedings. As was the practice of the Office of the State’s
Attorney for Harford County, a file was created and maintained for Head’s prosecution.
On April 9, 2009, David Henninger (“Henninger”) entered his appearance on behalf
of Head. The prosecution file included Henninger’s entry of appearance, the State’s and
Head’s discovery requests, and the State’s responses to Head’s discovery requests. Smith
signed the State’s responses, which included a list of potential witnesses, identifying the
following people as potential witnesses: (1) the child victim (“the victim”) by the victim’s
initials; (2) the victim’s adult guardian; (3) Detective Thomas Bradley; and (4) Leanda
Daniels, a social worker with the CAC. In the State’s discovery responses, contact
information was provided for all of the witnesses except for the victim.
On or about April 30, 2009, Smith received notice that Head’s trial was scheduled
for September 8, 2009. On September 8, 2009, Smith appeared on behalf of the State in
the circuit court and requested a postponement, advising the circuit court that the victim’s
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guardian, a necessary witness, was unavailable. Specifically, Smith stated: “I have a
witness who is necessary for the case who is not available at this time.” When asked by
the circuit court to elaborate, Smith stated: “[I]t’s my understanding [] that . . . [the victim’s
guardian], is absent at this time, out of town, and apparently it’s some kind of medical
emergency, I believe in Connecticut, Your Honor. I don’t have my note with me. She is
a necessary, critical witness in this case, therefore, the State is seeking postponement.
There has been no other dates before this, Your Honor.” The circuit court granted the
postponement, stating: “For the matter stated by the State, that a critical witness is
unavailable here today, this matter will be postponed for that reason. I find the reason
constitute[s] good cause.”
Trial was rescheduled for January 4, 2010. On that date, Head pled guilty to fourth-
degree sex offense. The circuit court sentenced Head to one year of imprisonment, with
all but 142 days suspended and credit for time served, followed by three years’ probation.
Importantly, as a condition of probation, Head was to have no contact, by any means, with
the victim. At sentencing, Smith did not offer the circuit court a victim impact statement
or any other information from the victim or the victim’s family.
In 2012, the Division of Correction contacted the Office of the State’s Attorney for
Harford County concerning Head’s release. The Division of Correction was unable to
locate contact information to notify the victim of Head’s release, so the Office of the State’s
Attorney agreed to contact the victim’s guardian. As a result, the Office of the State’s
Attorney discovered, among other things, that the victim’s guardian was unaware that Head
had pled guilty and been sentenced; she had been unaware of the September 8, 2009 trial
-3-
date, and had never advised that she was out-of-state; and, for that matter, she was unaware
that Head had ever been charged. Upon this discovery, the prosecution file was reviewed;
the prosecution file contained a notation that the September 8, 2009, postponement was
due to the victim’s unavailability. Thereafter, transcripts of the September 8, 2009, hearing
and the January 4, 2010, guilty plea hearing were ordered.
On or about March 21, 2012, Cassilly confronted Smith about the request for
postponement and the information obtained from the victim’s guardian (i.e., that she was
not aware that Head had been charged, that she had never contacted anyone with regard to
traveling out-of-state for a medical emergency, and that she had not, in actuality, traveled
out-of-state for a medical emergency). Cassilly told Smith he had concerns about his lack
of candor in requesting the postponement and requested Smith’s resignation. Cassilly
could not recall Smith offering an explanation other than that a note should have been in
the prosecution file. Cassilly looked for, but did not find, a note in the prosecution file
relating to the unavailability of the victim’s guardian or the information that Smith
provided to the circuit court on September 8, 2009. After his meeting with Cassilly,
Smith’s employment as an Assistant State’s Attorney was terminated.
In addition to the issues related to the September 8, 2009 postponement request,
Cassilly discovered nothing in the prosecution file indicating that the victim had been
summonsed for either circuit court date; and neither the prosecution file nor the circuit
court’s file contained a copy of the Victim Notification Request form that Maryland law
-4-
requires.2 In addition, neither the prosecution file nor the circuit court’s file contained a
form certifying that the victim had been notified of her rights; filing such a certification
form was Smith’s responsibility. According to Cassilly, it was Smith’s responsibility to
meet with the victim prior to trial, introduce himself, establish a relationship with the
victim, and know how the victim would handle questions or respond on the stand; but, the
prosecution file contained no notes concerning a pretrial interview with the victim by
Smith. The prosecution file contained a statement given by the victim to a social worker
at the CAC on February 20, 2009, which was audio and video taped;3 and, according to
Cassilly, it was customary to use such a recording at trial. Although it was Smith’s
responsibility to file a motion in the circuit court concerning the State’s intention to use the
recording at trial, Smith failed to do so.
It was also Smith’s responsibility to see that subpoenas/summonses were issued to
witnesses to appear for trial. The usual practice of the Office of the State’s Attorney for
Harford County was as follows. Although witnesses were occasionally notified about other
2
Md. Code Ann., Crim. Proc. (2008 Repl. Vol.) § 11-104(c)(1) provides:
Within 10 days after the filing or the unsealing of an indictment or
information in circuit court, whichever is later, the prosecuting attorney shall:
(i) mail or deliver to the victim or victim’s representative the pamphlet
described in § 11-914(9)(ii) of this title and the notification request form
described in § 11-914(10) of this title; and
(ii) certify to the clerk of the court that the prosecuting attorney has complied
with this paragraph or is unable to identify the victim or victim’s
representative.
3
A document signed by the victim’s guardian consenting to the audio and
videotaping of the victim’s statement was in the prosecution file.
-5-
types of hearings by telephone or by letter, the assigned Assistant State’s Attorney typically
sent a summons and followed up by letter. The summonses/subpoenas are computer-
generated. The clerical staff at the Office of the State’s Attorney for Harford County enter
a date into the computer system; the computer searches for all cases that are scheduled for
that date; and a batch of the subpoenas/summonses for that date is printed. Thereafter, the
clerical staff separate the summonses, attach them to the front of the prosecution file, and
give them to the assigned Assistant State’s Attorney for signature. The process allows the
assigned trial attorney to review the summonses/subpoenas already issued and to make sure
that all of the witnesses needed for the trial date were issued a summons/subpoena. If
Smith received the prosecution file in Head’s case and realized there were no
summons/subpoena for a necessary witness, Smith could have had a summons/subpoena
issued for that witness prior to trial.
Pursuant to the procedure described above, the prosecution file and the circuit
court’s file contained copies of subpoenas signed by Smith for the September 8, 2009, trial
date. The subpoenas, issued on August 3, 2009, were addressed to Head and Detective
Thomas Bradley of the Harford County Sheriff’s Department. There were no copies of
subpoenas for the victim or her guardian for either trial date. It was Smith’s responsibility,
as the assigned Assistant State’s Attorney, to keep the victim and her guardian informed of
the proceedings, but the prosecution file contained no notes or other records of any
communications with the victim or members of her family between the September 8, 2009,
trial date and the January 4, 2010, trial date.
After the circuit court proceeding on January 4, 2010, at which Head pled guilty,
-6-
Smith did not communicate with the victim or her guardian. And, although one of the
conditions of Head’s probation was that he have no contact, by any means, with the victim,
there was no record that Smith or anyone else contacted the victim or her guardian
concerning the case’s disposition and the condition of probation imposed. At the hearing,
Cassilly testified that, generally, the assigned Assistant State’s Attorney communicates
with the victim concerning the case’s disposition. Barring that, the Office of the State’s
Attorney for Harford County has a system under which, if the victim is not present, a letter
detailing the case’s disposition is sent to the victim and/or the CAC victim’s advocate
contacts the victim. At the disciplinary hearing, Smith admitted that he was responsible
for notifying the victim and/or the victim’s guardian concerning the conditions of Head’s
probation, but that he failed to do so.
The victim’s guardian testified that, after the victim gave a recorded statement on
February 20, 2009, she heard nothing from the CAC or the Office of the State’s Attorney
about the allegations against Head. The victim’s guardian did not attempt to contact
anyone about the allegations against Head because she got caught up in other matters, and
assumed that the victim had not been believed and that the matter had been dropped.
According to the victim’s guardian, in 2012, she was contacted by someone about Head,
and, as a result, discovered that Head had been prosecuted. The victim’s guardian testified
that, had she been contacted in 2009, she would have cooperated in the prosecution. The
victim’s guardian also testified that she would have liked to have known that Head had
been prosecuted. The victim’s guardian testified that she did not leave a telephone message
for anyone in the Office of the State’s Attorney for Harford County advising that she was
-7-
unable to attend a hearing or that she was out-of-state for a medical emergency.
The hearing judge expressly found Cassilly and the victim’s guardian credible.
At the hearing, Smith testified that he had no independent recollection of the case,
and had refreshed his recollection by reviewing the transcript and other documents. Smith
admitted responsibility for a lack of due diligence in handling the case. Smith testified,
however, that he would not have fabricated an excuse for a postponement and he believed
that his communication to the circuit court regarding the victim’s guardian’s absence was
not untrue. Smith did not dispute the validity of the underlying fact—i.e., the victim’s
guardian had not traveled out-of-state—but testified that he believed that what he stated on
the record was not fabricated. During cross-examination, Smith testified that, at the
relevant time, he had a heavy case load and had requested that his District Court case load
be reduced so he could devote more time to his assigned CAC case load. The hearing judge
found that Smith “appeared credible, genuine, and truthful” when testifying at the hearing.
On November 10, 2014, we heard oral argument. In opening argument, Smith urged
this Court to adopt the hearing judge’s findings of fact and conclusions of law, and
submitted. In response to questions posed by Chief Judge Mary Ellen Barbera, Smith
recommended that we reprimand him. In rebuttal argument, Smith again asked this Court
to adopt the hearing judge’s findings of fact and conclusions of law. In response to
questions from the Court, Smith stated that he made the postponement request in the circuit
court based on the information that he had at the time, and that, in any event, the Head case
was not going to proceed to trial on September 8, 2009. When asked when he knew the
case would not proceed to trial, Smith stated that his “guess” was “probably” weeks prior
-8-
to the September 8, 2009, trial date, although Smith acknowledged that he had not seen the
file between 2009 and 2012, and that he had not testified before the hearing judge
concerning the case not proceeding to trial.
Smith also stated that he did not know whether he had testified about when he
learned that Head was going to plead guilty, but believed he had not testified about it
because he did not know the date. Smith again admitted that he did not have any
independent recollection of the case. When asked how this Court could reconcile the
hearing judge’s findings that both Smith and the victim’s guardian were credible, Smith
responded that he “testified to the truth” and that, “when asked how that note came about,”
he “explained that, obviously, someone had left it on [his] desk and that’s what [he]
presented to the [circuit] court.” Smith maintained that “the note was the only information
[that he] had,” and that he “accepted responsibility for not following up” to verify the
information contained in the note before presenting it to the circuit court.
And, in contrast to his testimony, in which he acknowledged that contacting the
victim after the guilty plea was his responsibility, Smith advised us that it was the
responsibility of a victim-witness coordinator to contact the victim’s guardian and advise
her of the guilty plea and the condition that Head have no contact with the victim. Smith
stated that he “accepted responsibility for” not following up to make sure that the victim-
witness coordinator contacted the victim. In response to a question as to whether the record
contained any information about the victim-witness unit and how it functions, Smith stated:
“No, I don’t believe so.” Smith conceded that he had no basis in this Court’s jurisprudence
for recommending a reprimand as the appropriate sanction.
-9-
DISCUSSION
Maryland Rule 16-759(b)(2)(B) provides, in relevant part: “If exceptions are filed,
the Court of Appeals shall determine whether the findings of fact have been proven by the
requisite standard of proof set out in Rule 16-757(b).[4] . . . The Court shall give due regard
to the opportunity of the hearing judge to assess the credibility of witnesses.” We accept a
hearing judge’s proposed findings of fact, unless clearly erroneous, and have explained that
“[t]his deferential standard of review is in place because the hearing judge is in the best
position to assess the credibility of witnesses and parties.” Attorney Grievance Comm’n
v. Walker-Turner, 428 Md. 214, 226, 51 A.3d 553, 560 (2012) (citations omitted); see also
Attorney Grievance Comm’n v. London, 427 Md. 328, 343, 47 A.3d 986, 995 (2012) (“We
accept a hearing judge’s findings of fact unless we determine that they are clearly
erroneous. That deference is appropriate because the hearing judge is in a position to assess
the demeanor-based credibility of the witnesses.” (Citation omitted)).
We have stated that “[w]eighing the credibility of witnesses and resolving any
conflict in the evidence are tasks proper for the fact finder.” Attorney Grievance Comm’n
v. Marcalus, 414 Md. 501, 512, 996 A.2d 350, 356 (2010) (citation and internal quotation
marks omitted) (alteration in original). Accordingly, “in an attorney discipline proceeding,
the hearing judge may elect to pick and choose which evidence to rely upon because he or
she is in the best position to assess first hand a witness’s credibility[.]” Attorney Grievance
4
Maryland Rule 16-757(b) provides, in pertinent part, that the Attorney Grievance
Commission “has the burden of proving the averments of the petition [for disciplinary or
remedial action] by clear and convincing evidence.”
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Comm’n v. Payer, 425 Md. 78, 93, 38 A.3d 378, 387 (2012) (citations and internal
quotation marks omitted). We have also explained “that ‘clear and convincing evidence’
means only that the witnesses to a fact must be found to be credible, and that the facts to
which they have testified are distinctly remembered and the details thereof narrated exactly
and in due order, so as to enable the trier of the facts to come to a clear conviction, without
hesitancy, of the truth of the precise facts in issue.” Id. at 93, 38 A.3d at 387 (citation and
internal quotation marks omitted).
A careful review of our existing jurisprudence leads to the conclusion that we are
not required to accept a hearing judge’s credibility finding in lockstep where there is good
reason to doubt the finding and the record contains facts that contradict the finding.
Although it is accurate that weighing witness credibility is the job of the hearing judge and
that we generally defer to such findings, our jurisprudence has always allowed for the
possibility that there would be a case in which the hearing judge’s credibility finding would
be clearly erroneous.
In Attorney Grievance Comm’n v. Sheinbein, 372 Md. 224, 248, 812 A.2d 981, 995
(2002), this Court determined that a lawyer “had the specific intent to obstruct or hinder
[an] investigation and probable arrest of his son by sending [his son] to Israel.” In so
concluding, we first evaluated the hearing judge’s finding concerning the lawyer’s
credibility to “determine whether those findings [we]re clearly erroneous.” Id. at 245, 812
A.2d at 993. We observed that the hearing judge had found that the lawyer was not credible
when he testified before a Grand Jury that his intent in sending his son to Israel was to save
his son from another individual, suicide, or a police shootout. Id. at 245, 812 A.2d at 993.
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Upon independent review, we stated that “[t]he record [wa]s replete with facts” supporting
the hearing judge’s credibility finding. Id. at 245, 812 A.2d at 993.
And, in London, 427 Md. at 350-51, 47 A.3d at 999-1000, we concluded that a
lawyer violated MLRPC 8.4(c) by making misrepresentations or failing to communicate a
material fact about the status of work that he had completed for a client. Before the hearing
judge, the client testified that the lawyer had told him that a deed had been filed. Id. at 350,
47 A.3d at 999. By contrast, the lawyer testified that the agreement with the client was that
the lawyer would prepare the deed, but that the client would file the deed. Id. at 350, 47
A.3d at 999. Ultimately, no deed was filed. Id. at 349, 47 A.3d at 999. The hearing judge
found the client credible, and found the lawyer “not as credible[.]” Id. at 335, 47 A.3d at
990. In concluding that the lawyer violated MLRPC 8.4(c), we stated: “With no reason to
doubt the hearing judge’s finding that [the client] was a more credible witness than [the
lawyer], we conclude that the evidence is plainly sufficient to support a violation of
[MLRPC] 8.4(c).” Id. at 351, 47 A.3d at 1000 (footnote omitted).
Here, there are myriad good reasons to doubt the hearing judge’s credibility finding
as to Smith, and the record is overflowing with facts that contradict the hearing judge’s
finding. Indeed, the hearing judge’s own findings of fact compel the conclusion that Smith
was not credible, and that he misled the circuit court in representing that a critical witness
was unavailable for trial due to traveling out-of-state for a medical emergency.
There were a number of unusual circumstances accompanying Smith’s request for
a postponement in the circuit court on September 8, 2009. The hearing judge found that,
during the circuit court proceeding, Smith stated that a witness, the victim’s guardian, was
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unavailable, “absent . . ., out of town, and apparently it’s some kind of medical emergency,
. . . in Connecticut,” but that he did not “have [his] note with [him].” Smith did not produce
the alleged note in the circuit court, and Smith did not advise the circuit court of how he
came into possession of a note regarding the victim’s guardian’s unavailability when he
had neither contacted the victim’s guardian to advise her of the trial date nor summonsed
her to appear as a witness. Nor was the note placed in the prosecution file.
Several years later, when Cassilly received conflicting information concerning the
postponement request—i.e., the information that Cassilly had obtained from the victim’s
guardian (that she was not aware that Head had been charged, that she had never contacted
anyone with regard to traveling out-of-state for a medical emergency, and that she had not,
in actuality, traveled out-of-state for a medical emergency)—and met with Smith, Smith
offered no explanation or details other than that a note should have been in the prosecution
file. Cassilly looked for, but, contrary to Smith’s assurance, did not find, a note in the
prosecution file relating to the victim’s guardian’s unavailability or a note regarding any
information provided by Smith to the circuit court on September 8, 2009. After Smith’s
meeting with Cassilly, Cassilly terminated Smith’s employment with the Office of the
State’s Attorney for Harford County. The logical conclusion is that Cassilly did not believe
Smith’s account of the September 8, 2009, postponement request before the circuit court.
Compounding the irregularities attendant to the September 8, 2009, postponement
request, at the hearing, Smith testified that he had no independent recollection of the case,
but that “he would not have fabricated such an excuse” to the circuit court and that he
believed what he told the circuit court regarding the victim’s guardian’s absence “was not
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untrue.” In short, before the hearing judge, Smith simply testified that he would not have
been untruthful about receiving the note. It is undisputed, however, based on the hearing
judge’s findings of fact, that Smith never contacted the victim’s guardian to inform her of
the prosecution or of either the September 8, 2009, or January 4, 2010, trial dates.
Specifically, the victim’s guardian testified that nobody from the Office of the State’s
Attorney for Harford County had ever been in touch with her, not even to inform her that
Head was being prosecuted. At the hearing, Smith acknowledged that it was his
responsibility to notify the victim and her guardian about the prosecution and trial dates,
but that he failed to do so. Yet, oddly, Smith failed to provide any explanation whatsoever
as to why he would have unexpectedly received a note about the unavailability of a critical
witness—the victim’s guardian—whom, as he knew, he had not contacted to inform of the
prosecution or of the particular trial date.
Although Smith has offered the explanation that he would not have fabricated an
excuse for a postponement and that he believes his communication with the circuit court
regarding the victim’s guardian’s absence was not untrue, simply put, the evidence
admitted at the disciplinary hearing does not support Smith’s allegation. Based on the
evidence, there are only two logical explanations for Smith’s position—either the victim’s
guardian was not truthful concerning her lack of contact with the Office of the State’s
Attorney for Harford County, or, in September 2009, Smith came into possession of a note
unrelated to Head’s case that he mistook as pertaining to the victim’s guardian. As to the
first possibility, the hearing judge expressly found the victim’s guardian credible, and
nothing in the record casts a reasonable doubt on that finding; i.e., the record presents no
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circumstances contradicting the victim’s guardian’s account that she was not contacted by
the Office of the State’s Attorney for Harford County and did not know of Head’s
prosecution. And Smith agrees that he did not contact the victim’s guardian. As to the
second possibility, no evidence has been produced demonstrating that Smith received in
error a note concerning the victim’s guardian’s absence or that Smith received a note
pertaining to another matter or, for that matter, that a note pertaining to the victim’s
guardian was misplaced in another prosecution file. In short, there is no scenario grounded
in the evidence admitted at the hearing under which Smith’s version could be accurate.
Although this Court gives due regard to a hearing judge’s credibility finding, in the
instant case, in the face of all of the countervailing evidence admitted at the hearing and in
light of the hearing judge’s own findings of fact, this Court is not required to mindlessly
accept the hearing judge’s unexplained finding that Smith was credible.5 Under this
attorney discipline proceeding’s unique circumstances, given the many good reasons to
doubt Smith’s credibility and that the evidence, in actuality, contradicts a finding that Smith
was credible, I would not defer to the hearing judge’s illogical finding concerning Smith’s
credibility. Clear and convincing evidence requires not only that a witness be found to be
credible, but also “that the facts to which [the witness has] testified are distinctly
5
As an aside, although the hearing judge found that Smith “appeared credible,
genuine and truthful in testifying before” the hearing judge, the hearing judge did not
explain, elaborate, or even mention a fact supporting the finding (i.e., the hearing judge did
not state that the credibility determination was based on Smith’s demeanor or something
else, nor did the hearing judge state that the credibility finding was confirmed by evidence
admitted at the hearing). To be sure, hearing judges are permitted to make demeanor-based
credibility findings. Here, however, overwhelming evidence contradicts the validity of
such a finding concerning Smith’s credibility.
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remembered and the details thereof narrated exactly and in due order, so as to enable the
[hearing judge] to come to a clear conviction, without hesitancy, of the truth of the precise
facts in issue.” Payer, 425 Md. at 93, 38 A.3d at 387 (citation and internal quotation marks
omitted). Again, Smith neither testified as to any remembered facts nor provided any detail
concerning the particulars of his prosecution of Head; to the contrary, Smith testified that
he had no independent recollection of the matter.6 In other words, nothing in Smith’s
testimony could have led the hearing judge to come to find by clear and convincing
evidence that Smith would not have misled the circuit court about the note.7
I would reverse the hearing judge’s conclusion that Smith did not violate MLRPC
3.3(a)(1) and 8.4(c). MLRPC 3.3(a)(1) provides that “[a] lawyer shall not knowingly: []
make a false statement of fact or law to a tribunal or fail to correct a false statement of
material fact or law previously made to the tribunal by the lawyer[.]” (Paragraph break
omitted). MLRPC 8.4(c) provides: “It is professional misconduct for a lawyer to . . .
6
At oral argument, the Honorable Glenn T. Harrell, Jr. asked Smith whether he
remembered the character Sergeant Schultz from the television show “Hogan’s Heroes.”
Smith responded: “Yes.” Judge Harrell pointed out that Sergeant Schultz’s catchphrase
was “I know nothing,” which “seems to have been [Smith’s] defense before the [hearing]
judge.” Given Smith’s testimony that he has no independent recollection of the case, Judge
Harrell’s comparison is well-taken.
7
And, disconcertingly, despite admitting at the hearing that it was his responsibility
to notify the victim and/or her guardian of Head’s guilty plea and conditions of probation,
at oral argument, Smith advised that it would have been the responsibility of a victim-
witness coordinator to contact the victim and/or her guardian concerning Head’s guilty
plea. In other words, although, at the hearing Smith acknowledged his responsibility to
contact the victim after the guilty plea, Smith changed his tune between the disciplinary
hearing and oral argument, and decided that responsibility for contacting the victim after
the guilty plea rested with a victim-witness coordinator. The conflicting information
provided by Smith as to who was responsible for contacting the victim and/or her guardian
following Head’s guilty plea undermines the finding that Smith was credible.
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engage in conduct involving dishonesty, fraud, deceit[,] or misrepresentation[.]” Given the
hearing judge’s findings of fact, I would conclude that Smith violated MLRPC 3.3(a)(1)
and 8.4(c) by lying to the circuit court when making the postponement request. The hearing
judge’s findings of fact are more than sufficient to demonstrate that Smith—who admitted
that he had a heavy case load and had requested that his case load be reduced, and who
failed to even inform the victim or her guardian of Head’s prosecution or of the initial trial
date—fabricated an excuse for a postponement to cover up his complete lack of diligence
in the handling of Head’s prosecution. In my view, there is no other reasonable or logical
conclusion that can be reached given the hearing judge’s findings of fact, notwithstanding
the hearing judge’s inexplicable credibility finding.
In accordance with the Commission’s recommendation at oral argument, I would
indefinitely suspend Smith from the practice of law in Maryland with the right to apply for
reinstatement no sooner than six months after the effective date of the suspension. Cf.
Attorney Grievance Comm’n v. Litman, 440 Md. 205, 206, 217, 222, 101 A.3d 1050, 1052,
1057, 1058, 1061 (2014) (In a reciprocal discipline case, where, among other things, the
lawyer “misrepresented intentionally facts and the law to both judicial and administrative
tribunals” and “either made deliberately the misrepresentations at issue or blinded himself
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willfully to the falsity of his contentions[,]” this Court concluded that the appropriate
sanction was an indefinite suspension with the right to apply for reinstatement no sooner
than six months after the effective date of the suspension.). For the above reasons,
respectfully, I concur and dissent.
Judge Harrell and Judge Battaglia have authorized me to state that they join in this
opinion.
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