*1 79 from deter others of law to violation punish needed noted, should be holding, The it majority’s conduct. similar occurring to a communication equal force apply would The legislature the District of Columbia. entirely within interceptions to all applicable rule exclusionary fashioned an Maryland. interpreted, So the of occurring State within The purpose. valid and understandable 10-405 has § exclusionary the rule unnecessarily extends majority Mary- constituted a violation of would have activities which here, limiting than had rather if occurred they land law do, in done, actions that exclusion, legislature has as the doing, majority so fact, Maryland Act. violate the apparent intent beyond rule enlarges exclusionary purpose ordinary and beyond of the legislature, of rule evidence. exclusionary function of an Special Appeals I instruct Court would the telephone evidence of Act does not exclude in this case. conversation involved 488 A.2d OF MARYLAND ATTORNEY COMMISSION GRIEVANCE v.
Maynard R. ROHRBACK. (Subtitle BV) Term, 25, Sept. No. 1989. Misc.Docket Appeals Maryland. Court 26, 1991. June *4 Jr., D. Bar for Murphy, Deputy Walter Counsel the Atty. for Maryland, petitioner. Grievance Com’n Jr., Towson, Figinski, Robert L. and M. Hanley, Albert Baltimore, curiae, for respondent. as amicus MURPHY, C.J., ELDRIDGE,
Argued before RODOWSKY, McAULIFFE, CHASANOW and KARWACKI, JJ., Jr., ORTH, E. CHARLES (retired) Specially Assigned.
83 RODOWSKY, Judge. (Rohrback), is a R. solo Rohrback Maynard
Respondent, in area of Anne the Glen Burnie whose office practitioner August in morning One County. Arundel had arrest- from a client who been a call telephone received arresting officer. false name given had ed and who night- legal ethics plunged into thereby was version of the unique mare, Maryland’s conflict under his duty between Rules of Professional Conduct new ABA his of candor to duty client and confidentiality success- a time Rohrback parties. and third For tribunals course, he carried but, ultimately, navigated the fully edge. over the Asbury (Asbury), an Lloyd client was Francis former Florida resident. worker and
alcoholic construction had consulted Rohrback 1986 Asbury late December also owned one concerning Asbury problems. marital law in Burnie, tenanted which were properties or more Glen had to which Rohrback part respect and with whole represented Asbury. 28, 1987, Anne had been arrested February
On (DWI). A driving for while intoxicated few Arundel County Rohrback for the criminal retained days thereafter the Motor before Ve- proceedings and for related charges (MVA), arising out of refusal Asbury’s hicle Administration for a chemical test intoxication. take prior for DWI or had at least three convictions (DUI), influence of alcohol two of driving under the the Anne Arun- years preceding within the five which were license had been arrest. His driver’s County del January of a from October 1984 because revoked that, license May conviction. Prior 1984 DWI 1982 DUI September had because of suspended been hearing Asbury’s MVA conviction. At March 1987 months, this time for nine again suspended, license was ap- on Medical Board reinstatement conditioned any behalf from appeal Asbury’s noted an proval. Rohrback *5 determination, this administrative but that appeal was later voluntarily dismissed.
In connection charges with the DWI of February 1987 the Attorney State’s for Anne Arundel County gave notice that Asbury would charged subsequent as a offender. Origi- nally set for trial the District Court in July, case was by prayer removed trial jury the Circuit Court for where, Anne 25, Arundel on County August it awaiting was trial.
Early morning August 25, in Baltimore City, Asbury again was arrested for again DWI and refused a Asbury breath test. identified himself arresting officer Lloyd as Francis Boland presented a Florida driver’s license issued to him in that name at a Florida Asbury address. was taken to the Southern Police District in Baltimore City booked as Boland with the Florida address.
Before Rohrback had left his home on the morning of the 25th he received a telephone call from Asbury who was confined at the Southern District. asked Asbury get him out of on jail They agreed bail. on legal a $250 fee paid. which later Asbury told Rohrback to ask for him Boland, under the name of explaining that he had a Florida license issued to him Lloyd Francis Boland which he had presented to the arresting officer.1 lock-up
At Rohrback told Asbury that Rohrback would to tell have the bail bondsman that “Boland” was that had Asbury, Asbury another DWI charge pending, and the correct address was Asbury’s address in Glen Burnie. Asbury consented to these disclosures. Rohrback also Asbury told that Rohrback would attempt get for testified, proceedings 1. In the now before us Rohrback based on information obtained from lock-up in a conversation at the on 25, 1987, morning August adopted had been Florida. Rohrback was not clear on which name is that of the birth parents event, adoptive parents. any and which name is that of the proceeded this case has the basis that is the true name and name, Boland a fictitious and not the reverse. *6 charges, to the criminal because try other counsel Asbury’s having over uncomfortable very felt Rohrback arresting officer. the Boland name given bondsman, disclosing that “Bo- a telephoned Rohrback charge another DWI Asbury had Asbury, was that land” was in residence County, Arundel that Anne pending Florida, and that Rohrback believed not Burnie and Glen risk. good Asbury was before a Boland, appeared and the bondsman
Asbury, as $1,000. set Bail at District Court. of the Commissioner bond form District Court bail the completed The bondsman Glen Burnie address. Boland, using Asbury’s in the name of and the bondsman form as Boland Asbury signed signed under a The commissioner signed surety. for the “SIGNED, sealed, acknowledged before reading line me.” during proceedings these same room
Rohrback was commissioner, unspec- he at some but remained before Rohrback from and the bondsman.2 ified distance himself as counsel silent, identifying neither remained “Boland” was “Boland,” the commissioner that telling nor Asbury. if Rohrback was asked proceedings disciplinary
In these of the tell Commissioner not ... to duty he did “feel replied: two names.” Rohrback being I that he was because knew
“I, again, was torn charges he had the other charged under Boland I should say I sure whether and wasn’t Asbury, under not, or because Mr. to the Commissioner anything that his main lock-up me it back plain had made he had jail. That what out of getting concern was being if me for, they told me know about there and he me reply to the initial com- Rohrback’s written 2. Bar Counsel introduced reply said: plaint by In that received Counsel. Bar part [before Commissioner] "I did in the discussion not take any of although I did not hear room. I was in the same Asbury.” representations Mr. made Asbury, they are either to make going me post a lot or they might all, bail not me even release at so I don’t sjaid want them to I going go through know. am [He with it as Boland.”
While Rohrback atwas the Southern District morn- he ing, placed telephone call to a fellow attorney private practitioner, advice seeking on how to handle the situation. That attorney was either unavailable unable give an immediate answer.
Following Boland, release on bail repeatedly urged Asbury reveal, toor authorize Rohr- reveal, back that Boland was Asbury. Rohrback also *7 talked attorneys to other about dilemma. re- Without vealing identity spoke his client’s Rohrback an to Assistant Attorney State’s for Baltimore City who was assigned the Southern District and suggested who that Rohrback discuss the matter a specified, experienced more prose- spoke cutor. Rohrback with that prosecutor, suggest- who ed that Rohrback explain the facts to the arresting officer who might change then the name of the defendant on the Complaint Uniform and Citation forms which that officer had issued. attempted to reach the officer by telephone messages, and left but officer did not return the calls. against
The criminal charges “Boland” were set for trial 19, 1987, on October before the District Court in Baltimore City. agreed Rohrback had not to represent Asbury at that date, A days prior Rohrback, trial. few to the trial while City, Maryland, Ocean word through received his secretary that wanted Asbury represent him. Rohrback sent word back to Asbury that Rohrback could not appear, should Asbury appear unrepresented, and either obtain or, postponement denied, a if that were a pray jury trial. Asbury appeared unrepresented on 19 in the October Davis, Judge courtroom of Andre then of the District Court. Utilizing powers of by observation that had been fine tuned experience, Judge grant- concluded Davis was
87 (PBJ) in first offender DWI judgment probation before ing decided to stand trial. cases, a fine.3 imposing and but, Judge because guilty, found “Boland” Davis Judge complaint, on he noticed the Florida address Davis (PSI). Sentencing investigation presentence a ordered 30. scheduled for November charges County DWI Anne Arundel
On November for trial before arrest came arising February out for as counsel appeared Judge Bruce Williams. Rohrback pursuant to to DUI a guilty a plea and tendered no made recom- the State bargain, Under the plea bargain. had As- prosecutor The concerning sentence. mendation Asbury, but did not know record as Maryland MVA bury’s Boland, conviction, of DWI in Baltimore City Asbury’s prior month. tak- Williams consisted of Judge The proceedings before plea followed voluntary guilty knowing ing it a PSI. The court that would obtain announcement court’s Judge no time At did Williams Asbury’s bail. continued record, did not volun- and Rohrback inquire about it. concerning information any submit tarily request of October for PSI Judge Davis’s PSI were both of November 6 request Williams’s agent, L. parole probation Wayne same referred to the *8 (Lambert). urged Asbury to reveal Rohrback Lambert probation in case to the City the Baltimore identity” “dual so, then, agree to do but At times would Asbury officer. change he being imprisoned, would by a fear of overcome to do so. his mind and refuse counsel, Rohrback, accompanied Asbury, as
Eventually, Boland, expla- meeting with Lambert. Rohrback’s as he extremely frightened, that nation is that was him, simply and that Rohrback wanted to be with Rohrback not claim that along. surprise does went Rohrback on as Boland to Lambert that occasion. represented himself 27, PBJ, (1957, Repl.Vol.), Art. 641. § As to see 3. Md.Code did not disclose misrepresentation Lambert. did not in testify
Lambert proceedings. the instant is his letter evidence to Rohrback’s successor as counsel for Asbury, written March 1988. It following: describes the I initially Boland, “When by contacted Mr. phone, an him, schedule appointment interview he stated that attorney during he wanted his I present the interview. contacted, by phone, was later an by individual who himself identified as Mr. M. Rohrback and who also himself being identified as Mr. Boland's At attorney. time, appointment an at office my scheduled Shopping located Parole Plaza in Annapolis, Center Maryland. It should be noted that the dates of the telephone appointments conversations and are unavailable time, to me at this as that material has been destroyed. An office was eventually interview conducted Mr. with Boland while Mr. M. present. Rohrback was I cannot identification; recall if Mr. displayed any Rohrback ever however, assumption it was my representing that he was Mr. Boland in the case. Very by little was said Mr. during the entire interview.” sentencing At the on November 30 Baltimore City, Boland, Asbury, appeared pro as se before Judge Davis. Rohrback was not present. Judge granted Davis Asbury, PBJ, costs, Boland, imposed a fine him placed years supervised probation. two Williams, respect Judge for With PSI Lambert's letter “Mr. Asbury cooperate advises that failed to me in scheduling so he appointment an could be inter- viewed.” 24, 1988, prior February
Sometime Asbury changed date, counsel. On that represented his new lawyer, Asbury appeared sentencing before Williams. The judge, PSI, who had commented that had “been on probation offenses, times for these three this *9 name____” being fourth under this Asbury was sen- County Arundel Detention Anne year one tenced to release and with continued work on to be served Center counseling. alcoholism City for Baltimore Attorney the State’s May illegal imposition to correct the District Court
petitioned 25, 1987, DWI arising August out of the case PBJ of year’s impris- one revised the sentence to The court arrest. sentence, placed and of the onment, suspended execution years.4 for three probation supervised on defendant representa- brought for Asbury counsel New Bar of to the attention “Boland” of of tion them filed we referred were charges When Counsel. Anne for the Circuit Court A. of Martin Wolff at testified Only Rohrback hearing. County Arundel of records rested on case hearing. Bar Counsel’s case, of the MVA, City District Court Baltimore of the case, Lambert’s let- circuit court County Arundel Anne before an testimony ter, transcript of Rohrback’s and on the that, on three occa- concluded Judge Wolff panel. inquiry Rules sions, Maryland Lawyers’ Rohrback violated Rules, 12, Court Ad- Title Conduct, Maryland Professional ministration, appendix.5 Rule 1230 and 25, morning August on the first occasion was
The found to 1987, District when Rohrback at the Southern 1.2, 4.1(a). one of the 1.2(d) Rules violated have Relationship,” provides: “Client-Lawyer dealing rules OF REPRESENTATION. “SCOPE or engage, client to A not counsel a (d) shall lawyer knows is client, lawyer in conduct assist a legal fraudulent, lawyer may discuss but a criminal with a course of conduct proposed consequences any 4. in the Baltimore Interestingly, imposing the new sentence the order "Lloyd City captioned v. Boland.” case State be to the references to a rule will indicated all 5. Unless otherwise Maryland Lawyers’ Conduct which became of Professional Rules 1, January effective 1987. *10 client and may counsel or assist a good client to make a effort faith to validity, determine the scope, meaning or application of the law.”
Judge Wolff concluded that Rohrback violated this rule
“because he assisted a obtaining bail bondsman to procure Asbury’s release knowing that using name____ a false The participation active in the fraudu- lent scheme for a fee clearly brings in viola- [Rohrback] tion of this Rule.” addition, Judge Wolff concluded that Rohrback violated 4.1(a)(2) at the 4.1, Southern District. Rule one of the dealing
rules with “Transactions With Persons Than Other Clients,” reads:
“TRUTHFULNESS IN STATEMENTS TO OTHERS.
(a) In the course of representing a client lawyer a shall not knowingly:
(1) make a false statement of material fact or to law a person; third
(2) fail to disclose a material fact to third person when disclosure is necessary to avoid criminal or fraudulent act aby client.
(b) The duties stated in this Rule if apply compli- even ance disclosure of requires information protect- otherwise ed by Rule 1.6.”6
6. Rule 1.6 reads: "CONFIDENTIALITY OF INFORMATION. (a) lawyer relating A shall not representa- reveal information to consultation, tion of a client unless the client except consents after impliedly carry for disclosures that are authorized in order out representation, (b). except paragraph as stated in (b) lawyer may A reveal such information to the extent lawyer reasonably necessary: believes (1) prevent committing the client from a criminal or fraudu- lawyer likely lent act that believes is to result in death or bodily substantial harm or injury in substantial to the financial another; property interests or (2) rectify consequences of a client’s criminal or fraudulent used;
act lawyer’s furtherance which the services were (3) to lawyer establish a claim or defense on behalf of the in a controversy client, lawyer between the and the or to establish a “failing on Rohrback's predicated violation was This the false ... Commissioner District Court disclose identity____” was at reported to us of a violation
The second occasion con- Judge Wolff Williams. Judge before arraignment to disclose failure “Rohrback’s cluded charge under had another client the fact Williams violation, since of Boland would be name [Rohrback’s] *11 exceptions 3.3(a)(2) he fits the under fall actions [Rule] rule information confidentiality of the [Rule 6.1].” to TRIBUNAL,” provides THE 3.3, TOWARD “CANDOR part: relevant knowingly: shall not
“(a) A lawyer fact to a when (2) to a material tribunal fail disclose or assisting a criminal avoid necessary to disclosure client; the by fraudulent act (a) continue to
(b) paragraph The duties stated if compli- even apply proceeding, conclusion of protect- information disclosure of otherwise requires ance Rule 1.6. by ed (a) through (d), law-
(e) Notwithstanding paragraphs case need not disclose in a criminal for an accused yer or has testified testify falsely that the accused intends the disclo- reasonably if believes that lawyer falsely of the right constitutional jeopardize any sure would accused.” proba- meeting with the involved
The third occasion that Rohrback violated concluded Judge officer. Wolff tion Mr. failing to disclose ... at that time Rule 4.1 “[i]n claim, disciplinary complaint charge, defense to a criminal civil against lawyer upon in which the client based conduct concerning any proceedings respond allegations involved or to lawyer’s representation the client. the (4) Rules, order or other law.” comply with court these Lambert, pre-sentence investigator, the false identi- ty....” excepts to all of the
Rohrback conclusions reached addition, permitted Wolff. we Crim- Association, inal curiae, Defense Attorney’s amicus legal file a to argue orally memorandum and in support of position. argues, portions Rohrback based on testimony, he was concerned with preserving client confidences. Cit- ing portions of Rohrback’s testimony inquiry before an in which panel expressed sympathy for Asbury’s situation, Judge Wolff found that Rohrback could not 3.3(e) “claim for his protection acts” under Rule because Court does not find that reasonably be- “[t]his lieved that disclosure would jeopardize Asbury’s constitu- rights.” tional
I
We shall first analyze Rohrback’s conduct at the
police
District
in response
Southern
station
to Asbury’s
*12
telephone call.
that conversation
sought legal
counsel. The content of the conversation was confidential
1.6(a).7
under Rule
Asbury revealed Rohrback of having
commission of the offense
operated a motor
operator’s
vehicle when Asbury’s
license was revoked.
That
a completed offense,
was
and Rohrback had no
duty
knowledge
disclose
offense. “[Rohrback’s]
concerned]
crime,
therefore had a duty not
a completed
[Rohrback]
it;
report
it would be hard to
a
imagine more serious
whether,
here,
7. We
not decide
need
under the facts
this
of
is one
identity
privileged
unusual cases in which
of the client is a
communi-
attorney.
noteworthy
implicit
cation between client and
It is
Asbury’s problem
having given
was
identity
consultation
of
a false
Annot.,
Disclosure,
arresting
Attorney’s
to the
officer. See
in Federal
Proceedings,
Violating
Identity
Attorney-Client Privilege,
Client as
of
of
Annot.,
Name,
(1987);
84
Identity,
A.L.R.Fed. 852
Disclosure
Ad-
of
dress, Occupation,
Attorney-Client
or Business
Client as Violation
of
of
(1967).
Privilege,
93 1 if he G. Hazard & of did.” lawyering of the law violation on the A Handbook Lawyering: Law The Hodes, W. of (2d 1.2:508, Conduct at Model Rules § Professional of committed, unbe 1990) Asbury had also (Lawyering). ed. of a officer, giving the offense arresting knownst who is police uniformed officer name to any “fictitious of driver of a motor identity to determine the attempting 16-112(e) of the (1977, 1987 Repl.Vol.), vehicle.” Md.Code § above, explained reasons Article. For the Transportation disclose that crime. duty had no arrest, booking of nor at the time Neither making the offense of had committed procedure, officer, in of Md.Code police to a violation statement false 27, That re Art. 150. offense (1957, 1987 Repl.Vol.), § of investigation or other action to cause an an intent quires State, Md. 529, nature. See Choi v. general the same 1108, (1989). argues no 546-48, 1116-17 And one 560 A.2d commissioner, committed com that, before the here swearing. false statutory or form of mon perjury any law to the commis But, himself Asbury’s representing meaning Rule Boland was a fraud within the sioner as are 1.2(d). material, prior convictions It inasmuch pretrial in a release considered one the factors Procedure, Rules of Rule See determination. dividing line ... 4-216(f)(8). concept, “In drawn discuss, 1.2(d) explain, lawyer may is clear: a conduct that would consequences proposed predict fraud, may not counsel lawyer crime or but constitute This is thus a close in such subsection assist conduct. abetting, and the aiding of the law of relative criminal 1.2:502, at Lawyering tort joint civil law of feasance.” § presented whether question 47. The close *13 fraud. Asbury’s the line and assisted crossed A the evidence is legally the record before us On determination, under the clear and support insufficient to standard, convincing evidence that Rohrback As- assisted in bury conduct that Rohrback knew was going to be a “ fraud the on commissioner. In this context ‘[k]nows’ knowledge denotes actual of the in question fact [which] may Preamble, be inferred from circumstances.” Terminol- Appendix 1230, to Rule ogy, Maryland Administrative Rules.
Certainly, simply arranging the to bondsman come even if the lockup, the arrestee the gave police a false name, is not alone sufficient demonstrate client evidence, however, fraud. There was sufficient that Rohr- could have foreseen back attempt would off pass himself as Boland before the commissioner. On hand, the other the uncontradicted evidence is that Rohr- back, consent, Asbury’s told the bondsman identity true and address. Asbury appeared before the bondsman, commissioner with the not with Rohrback. The for the agent corporate surety owed duty loyalty, care, including risk principal. There was a that the would be if bail forfeited it were obligor known that the Thus, used false identity. bondsman an indepen- superseding dent actor—a cause. By arranging for the to come to the lockup, bondsman in participated creating fraud, for Asbury’s occasion but Rohrback was joint not a participant could, the fraud itself. Rohrback effect, bondsman, pass problem on to the after full disclosure to the bondsman.
Neither the bail bondsman nor Asbury testified at the hearing on instant disciplinary charges. There no that any prior evidence relationship between the bondsman such Rohrback was that Rohrback “knew” that would present Asbury to commissioner as bondsman Rohrback, Boland. Had for example, passed off Boland to the bondsman then permitted the bondsman take commissioner, “Boland” before the our conclusion 1.2(d) charge might well be different.
If Rohrback had left the police station after hearing, confidence, Asbury’s telling intentions and after the bonds- *14 have facts, not said to assisted Rohrback could man the fraud, showing that the bondsman facts absent out Rohr- instrumentality carrying mere words, Rohrback fraud. In other assisting Asbury’s back’s Rohrback that position taken the could have by getting a bonds- representation the limited had fulfilled As- from completely himself disassociated man and then But commissioner. Rohrback before the bury’s appearance Thus, Rohr- question becomes whether not so. the did do fraud. assisted the way in some presence back’s being District and remaining at the Southern By of bail setting when the “Boland’s” in the room present the assisting close to perilously came place, took Rohrback violation, however, of finding do not sustain the fraud. We the enough know this record do not about on we because not the size of presence. do know of Rohrback’s We effect using an office commissioner was the room and whether the know do not of the District Court. We or the courtroom families, arrestees, and members of their how many the room. We milling have about might friends also been that not know whether the commissioner knew do even the commission lawyer, much less whether Rohrback was Con lawyer knew Rohrback was the “Boland.” er that that not demonstrate Rohrback Bar Counsel did sequently, fraud. assisted knowingly
B that Rohrback Judge Wolff also concluded violat “ 4.1(a)(2) ‘knowingly failing] Rule on this occasion by ed fact when disclosure person disclose a material to a third fraudulent act necessary to avoid a ... [was] ”8 of Even if did not assist advance client.’ not Conduct we do 8. Under the structure of Rules Professional Court is a fraud fraud on a commissioner of the District believe that person governed by 4.1. Commissioners of the on a third part judicial power “with State District Court exercise respect arrest, or other terms of warrants of or bail or collateral commissioner, before the appearance contention is should have disclosed to commissioner misrepresentation that “Boland” was after the theory the release bail. That of violation necessarily continuing, the fraud was and that Rohrback was *15 by the fraud failure to We do agree. disclose. not misrepresentation Once the had been made commis- sioner, it a consummated act was which Rohrback had not legal assisted. If Rohrback’s representation Asbury continued, then as for counsel the accused a criminal case, duty had no to the disclose fraud at that time, more than he a any duty had to disclose that had a motor operated vehicle when his license was suspend- ed.
If use of a identity false constituted a continu- bail, ing during period following fraud the the then criminal, comment to Rule 1.2 on prohibited fraudulent and would transactions be relevant: the “When client’s course of action has already begun continuing, lawyer’s and is responsibility especially is permitted delicate. The is not lawyer reveal wrongdoing, except client’s where permitted by Rule 1.6. However, required the lawyer is to avoid furthering by for purpose, example, suggesting might how it be concealed.” 1.6(b) permissive.
Rule Failure reveal revealed, opposed which may be to that which must be revealed, is not a disciplinary basis for action. misrepresentation
After the was made to commission- er, relatively had a substantial window of time before other event take in the any place would Baltimore pre-trial hearing, pending prescribed by by release ... as law or rule." IV, Constitution, art. 41G. § It would seem that the rele- 3.3(a)(2), provision dealing
vant is Rule with candor toward the 3.3(a)(2), dealing tribunal. Inasmuch as the of Rule text with disclo- tribunal, 4.1(a)(2), dealing sure to a is tracked with disclosure party, analysis, peculiar to a our third under the facts of the instant matter, is not affected. bring issue to would the ethical case which criminal City tell during this approach period head. trial, him at while represent else to get someone breast of his to make clean continuing to counsel identity.” “dual the facts compared with may matter
The instant (Minn.1984), a criminal 348 N.W.2d v. Casby, State of deceit for the misdemeanor attorney of an prosecution The arrested a court. client had been to deceive intent with speeding. charged only but was and DWI speeding arresting officer. name to the gave Ms brother’s The client for the lock-up arrange arres- came to attorney The recognizance accomplished by release. This was tee’s name, opposite which the arrestee his brother’s signed by attorney plea her name. Thereafter the attorney signed letter confirm- of the client and wrote a bargained behalf arrangement. Speak- Her conviction was affirmed. ing *16 duty, the the court said: attorney’s of ing her fraud on perpetrating she learned client was “When court duty, she had a as the district judicial system, the of it, the continuation such put against "to advise panel action, attempt if client withdraw persisted, the then Even if withdrawal had become from the case. nothing do should careful impossible, she have been deception.’ client’s ABA aided her anyway which Lowery v. 7.7; The Function Card Standard, § Defense effort, well, (9th Cir.1978). no 727 She made 575 F.2d however, in his persisting client from dissuade her fraud.”
Id. at 739. pursued the us the course of
In matter before Rohrbaek attorney said before it which the Minnesota court the action pursued. have That court further said: should have Casby to see Ms. could contin- difficult how “[I]t Peter, most represent passive under the ued to even conditions, the danger the of client’s without preserving false evidence in viola- fraudulent conduct 7-102(A). appellant DR here did more. She tion of But knowingly plea negotiations undertook the authori- ties on the including writing deceit the of a letter to based confirming the authorities those negotiations.” Id. affirmed, the conviction
Casby,
attorney whose
was
of
proceedings arising
out of the
subject
disciplinary
same transaction.
Matter
to be or fraudulent.”
99 Williams, all Rohrback did was corroborate that knowing plea of entering voluntary guilty.
Ill
foregoing
It follows from the
ex
Rohrback’s
4.1(a)(2)
of Rule
ceptions
involving
to the violation
Rohr
probation
must
dealings
agent
back’s
be overruled.
Lambert,
conversation with
telephone
prior
Lambert, “Boland,”
meeting
face-to-face
between
and Rohr
back,
misrepresented that his client was Boland.
Rohrback
Thus, Rohrback’s violation of the
Rules of Profes
representation
Asbury began
sional
in the
of
at
Conduct
Further,
because counsel are almost never
point.
interview,
required
present
to be
at a PSI
Rohrback’s mere
as Boland served as Rohr
accompanying Asbury
act of
confirmation that Boland was the client’s true name.
back’s
misrepresentation by
This was a
Rohrback which actively
concealment of his
Asbury’s
prior
assisted
DWI convictions.
of
handling Asbury’s meeting
proba
with the
analogous
tion officer in the Baltimore
case is
City
substituting
defense counsel’s
for the defendant at the trial
of a criminal case some
other than the
person
defendant.
contempt,
The latter conduct has been held to be criminal
prior knowledge
permission
when done without the
Thoreen,
the court. See United States v.
the material this is overruled as to violation. exception Rohrback’s 4.1 the comment under Rule points ” “However, con reads: which discussing “disclosure limit may in criminal cases of defendants rights stitutional correct a may counsel for a defendant to which the extent provided by that is based information misrepresentation unique Mary points further the client.” Rohrback 3.3(e) in a (“[A] for an accused lawyer in Rule provision land intends to disclose that the accused case need not criminal if the reason falsely lawyer has testified testify falsely any con jeopardize the disclosure would ably believes accused.”). with Rohr agree We right of the stitutional express to Rule 4.1 and the comment quoted that the back 3.3(e) same concerns. are directed to the of Rule provisions however, 3.3(e) the comment see, how Rule not We do relevant, Ordi 4.1, if are determinative. they are finding guilty after a awaiting sentence narily person represented dimension be right has no of constitutional repre Having chosen at a PSI interview. by counsel counsel, reason it is not even engaged by privately sented denied the effective would be ably arguable in the Rules of prohibitions by assistance of counsel confirming against Conduct Professional Whiteside, 475 fraudulent. See Nix v. true that which was (1986) (accused, 988, 157, 89 L.Ed.2d 106 S.Ct. U.S. giving from counsel in criminal case by defense dissuaded deprived of the unconstitutionally not perjurious testimony, counsel). finding that Wolff’s effective assistance disclosure would reasonably not believe that did erro rights clearly is not Asbury’s constitutional jeopardize to the fraud on Lambert.10 neous as use, analogizes Lambert to the Rohrback’s conduct toward 10. Amicus case, questions general by a criminal defense counsel at trial of accused, witness, testimony designed as a narrative from the to elicit likely commit it is that the accused will when counsel believes defense misrepre- perjury. on Rohrback’s own Because we rest our decision identity, implicit of “Boland's" confirmation sentation analogy sought by amicus does not lie. IY *19 Counsel, Bar viewing the involving case as one course of unethical months, conduct over three recommends year suspension. a three Counsel for suggests that, if any sustained, even violation is the sanction should no more than a reprimand. recognize We Rules of Professional Conduct had been in effect for less than one year when the violation occurred. We also recognize the great importance, in particularly criminal work, defense of maintaining client confidentiality. We are conscious of the difficulty practitioners, courts, which commentators long have had in trying to define clearly the lines beyond which conduct becomes a disciplinary violation in the area of client confidences. areWe mindful of the fact that Rohrback was not the creator of the deception. Nor did Rohrback receive a fee for attending the meeting with Lambert. There is no indication from Bar Counsel that Rohrback has ever committed any prior professional in infractions the more than twenty years that he has been a member of the Nevertheless, bar this Court. purpose
ultimate of the fraud which Rohrback knowingly assisted was to deceive the District Court Baltimore City concerning “Boland’s” criminal record. For these reasons a majority of the Court concludes that suspension of forty- days five is appropriate. Judges McAuliffe and Karwacki would suspend for ninety days.
Rohrback’s Court, counsel this who did not repre sent Rohrback Judge Wolff, before requests that, if we impose decide to a sanction that is more severe than a reprimand in a published opinion, additional evidence in mitigation received, should be either on remand to Judge Wolff, byor affidavits filed this Court. To justify this request unusual counsel for Rohrback submits that Bar opined Counsel to counsel who represented Rohrback before Judge Wolff that reprimand in a published opinion would be the appropriate sanction here. Bar Counsel neither expressly acknowledges, denies, nor categorically the state ment attributed to him. That is immaterial. Rohrback’s mitigating not indicated to us the nature of the
counsel has presented. not The discloses that that was record evidence indeed, primarily, perhaps relevant exclusive- evidence mitigation Finally, was offered before Wolff. ly, specific Bar that a promise an Counsel explicit even recommended as a to this would be maximum sanction on us. rule was binding would not be This well Court trial counsel who was even more known present in these matters than counsel. We experienced reopen record. deny request PAY IT RESPONDENT SHALL IS SO ORDERED. ALL BY THE AS TAXED ONE-THIRD OF COSTS COURT, OF ALL OF THIS INCLUDING COSTS CLERK *20 RULE TRANSCRIPTS, PURSUANT TO MARYLAND c, SUM ENTERED IN FOR WHICH JUDGMENT IS BV15 OF THE ATTORNEY GRIEVANCE COMMIS- FAVOR R. ROHR- OF MARYLAND AGAINST MAYNARD SION BACK. in
CHASANOW, J., part and part concurs dissents files opinion. an CHASANOW, part Judge, concurring dissenting in part. opinion II of that Rohrback majority
I concur in Part 3.3(a)(2) Lawyers’ Rule of the Maryland did not violate he disclose Conduct when failed to Rules Professional charge fact his client another Judge Williams the had I concur the majority under the name of Boland. also 4.1(a)(2)in failing III in Part that Rohrback did violate presentence investigator Asbury’s false to disclose to I majority concur with the on the sanction to identity. even however, I with the deter- imposed. disagree, majority’s 1(A) mination in that Rohrback did not violate the Part Asbury in assisting Conduct while Rules Professional obtaining August for the 25 DWI offense. bond Judge hearing disciplinary charges
At the before Wolff, testified:
“I torn I ... was because knew that he was being under Boland charged and he had the other charges under and I Asbury, wasn’t sure I whether should say not, anything Commissioner or because Mr. Asbury had it me plain made back in the lock-up that his main concern was out of getting That jail. is what he had for, me there and he told if they me being know about me Asbury, they are either going post make me lot might bail or not they all, even release me I at so don’t want them to know. I going Said am to go through with it as Boland.”
From this testimony him, the other evidence before find, find, Wolff was entitled to and did that Rohr- back knew Asbury would fraudulently obtain bond by giv- ing a false name to Indeed, the commissioner. the majority acknowledges that “Rohrback could have foreseen that attempt pass would himself off as Boland before the commissioner.” Majority Op. at 94. Knowing of As- bury’s intent to secure release by fraudulently using a false identity, Rohrback should have refused to aid Asbury’s endeavor to obtain bail deceitful means. In- stead, Rohrback actively assisted Asbury’s fraud for a fee of $250.00.
Rohrback acknowledged he in “dumb” As- bury’s attempt obtain release under the name of Boland. As Judge noted, Wolff Rohrback testified before in- *21 quiry panel that:
“It was a dumb decision on my part go to there and bail him out under Boland. I should have done something right there, then can’t, and said I I can’t do it. He kept saying, you got out, to get me you got get me out.” I believe Wolff was correct when he concluded that Rohrback violated the Rules of Conduct, Professional 1.2(d),by assisting a client in conduct that the lawyer knows is fraudulent. Rohrback knew Asbury going was to fraud- use the ulently name Boland to hide his prior record and secure his Knowing release. Asbury’s intentions, Rohrback became an participant active in the fraudulent release.
-104 bondsman, the of a give Asbury did not name just
Rohrback Rohr- he call a bondsman to write the bail. simply nor did prior whom he had deal- contacted a bondsman with back the would be a Asbury and bondsman ings convinced Asbury using risk the fact that was false despite good Rohrback, Asbury, who met with the It was not name. Rohr- arranged have bond written. and bondsman name, it true but Asbury’s the bondsman gave back was written under the to infer bond reasonable direction, least Boland, if not at at name Rohrback’s clearly not erroneous when Judge Wolff was approval. his for “arranged a bondsman he concluded that using the name Boland Asbury’s bond under of write bail Asbury’s use the name Boland Asbury’s real address.” court, apparent on and this fraud was obviously that, acknowledged to if Rohrback. known, are “they going either his true were identity might not release post they me a lot of bail or even make all____” was an alcoholic who continued to me at suspension of his license despite intoxicated drive while This pending charges. convictions and despite prior his arrest, his third within was, least, Asbury’s at fourth DWI under on a Florida license an years. driving He was five his his under real name because license assumed driving result of while suspended had been as a name drinking pattern intoxicated. In view this habitual motor of this driving disregard for the vehicle laws state, bond, Asbury potential if on could released circumstances, community. Under these danger fraudulent at- actions reprehensible. Rohr- to obtain release bond were tempt full disclo- either insisted make should have back refused to of his true name or Rohrback should have sure bond. to write fraudulent arrange a bondsman can find majority I am at a loss to understand how and that “the bondsman was ethically that Rohrback acted cause” and “Rohrback independent superseding an actor—a bondsman, effect, on to the after could, problem pass *22 to the bondsman.” full disclosure at 94. I Majority Op. is majority not suggesting attorney’s assume that an obligations “passed bondsman, ethical can be on” to a bail attorneys or that do not have to fulfill their ethical obli- gations avoid fraud because they may assume bail bonds- Here, do men will so for them. Rohrback did not even remotely suggest that he instructed the bail bondsman to write bond under true Asbury’s name. It should be obvious that Boland” would not “Lloyd pursu- be released that, ant to a bond if “Lloyd written for Asbury” name, bondsman disclosed Asbury’s true decision any about bail would be quickly reevaluated. The bond was written “Boland,” a bail bondsman under the false name since Rohrback made all the arrangements to have the bond written, the trial judge was not erroneous in clearly con- cluding that “arranged a bondsman to write Boland____” bail bond under the name properly Wolff found that procuring bail bondsman and making arrangements to have the bond written in a false name was tantamount assisting a client conduct fraudulent, the lawyer thus, knew to be was a violation 1.2(d). of Rule
An attorney position a delicate taking when any action on behalf of person who the attorney knows is perpetrating a fraud. The must attorney be careful avoid in the fraud and should anticipate that any actions will be closely scrutinized. I respectfully dissent from the majority’s conclusion that Rohrback committed no ethical violation by assisting obtaining release on bail under a false name.