ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Robert John GREENLEAF.
Misc. Docket AG No. 2, Sept. Term, 2013.
Court of Appeals of Maryland.
May 16, 2014.
91 A.3d 1066
Robert John Greenleaf, for Respondent.
Argued before BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, MCDONALD and WATTS, JJ.
WATTS, J.
This attorney discipline proceeding concerns a Maryland lawyer who solicited for sexual acts a person whom the lawyer believed to be under the age of consent.
Robert John Greenleaf (“Greenleaf“), Respondent, while serving as the Chief Deputy Clerk of the Court of Special Appeals of Maryland, used the Internet to solicit for sexual acts a law enforcement officer who was posing as a fourteen-year-old or fifteen-year-old girl. Greenleaf‘s actions came to the attention of the Attorney Grievance Commission (“the Commission“), Petitioner.
On March 14, 2013, in this Court, Bar Counsel filed a “Petition for Disciplinary or Remedial Action” against Greenleaf, charging him with violating
On July 25, 2013, the hearing judge conducted a hearing. On September 19, 2013, the hearing judge filed in this Court an opinion including findings of fact and conclusions of law, concluding that Greenleaf had violated
On April 8, 2014, we heard oral argument. For the below reasons, we disbar Greenleaf.
BACKGROUND
In his opinion, the hearing judge found the following facts, which we summarize.
On November 8, 1979, this Court admitted Greenleaf to the Bar of Maryland. Between 1987 and 2004, Greenleaf served as an Assistant State‘s Attorney for Dorchester County, an Assistant State‘s Attorney for Caroline County, an interim State‘s Attorney for Caroline County, and a Senior Assistant State‘s Attorney for Dorchester County. On January 6, 2004, Greenleaf became the Chief Deputy Clerk of the Court of Special Appeals. Greenleaf‘s office
On March 8, 2010, Detective Sergeant Louis Gary Yamin (“DS Yamin“) of the Baltimore Police Department was working undercover for the Cyber and Electronic Crimes Unit. DS Yamin had a Yahoo Messenger account with the username “ravens_girl2003,” which was connected to a Yahoo profile for a female named “Beth.” On March 8, 2010, as “Beth,” DS Yamin entered a Yahoo Messenger chat room entitled “Maryland Romance.” In the chat room, a person with the username “delmarvan19901” initiated a private chat with “Beth,” who almost immediately sent the message “14/f/balto. md[,]” which is Internet language for identifying oneself as a fourteen-year-old female in the Baltimore area. “delmarvan19901” began discussing sexual topics. “Beth” sent “delmar-van19901” two photographs that depicted a young teenage girl. “delmarvan19901” sent a photograph of himself.
In addition to sending the two photographs, “Beth” e-mailed “delmarvan19901,” who sent a reply e-mail. DS Yamin learned that Greenleaf was using the IP address from which “delmarvan19901” had sent the reply e-mail. The IP address belonged to the Maryland Judiciary. DS Yamin matched the photograph that “delmarvan19901” had sent with a photo-graph of Greenleaf from the Motor Vehicle Administration‘s database. Thus, it was established that while the Chief Deputy Clerk of the Court of Special Appeals, Greenleaf used a State-owned computer in the Robert C. Murphy Courts of Appeal Building to communicate with “Beth.”
Greenleaf believed that “Beth” was a fourteen-year-old or a fifteen-year-old girl.1 “Beth” repeatedly referred to her age and stated that she was a high school student. The hearing judge expressly rejected Greenleaf‘s allegation that he believed that “Beth” was an adult who was “role-playing” by posing as a fourteen-year-old or a fifteen-year-old girl.
On approximately one hundred fifty separate dates, Greenleaf and “Beth” e-mailed and/or chatted with each other. On nearly half of those dates, Greenleaf used his computer at the Robert C. Murphy Courts of Appeal Building to communicate with “Beth.”
Greenleaf‘s and “Beth‘s” conversations were “consistently sexually explicit.” For example, Greenleaf asked “Beth” to describe her pubic hair, sexual history, bra size, and whether she was taking birth control.2 Greenleaf often discussed arranging a meeting with “Beth” and described the sexual acts in which he wanted to engage with “Beth.” Greenleaf “groomed” “Beth” for sexual activity by telling “Beth” that she seemed more mature than a fourteen-year-old or fifteen-year-old girl.
In December 2010, on four separate occasions, Greenleaf sent “Beth” links to pornographic videos. Greenleaf last communicated with “Beth” on January 25, 2011. Finally, in January 2011, Greenleaf was arrested and was placed on administrative leave. On April 1, 2011, Greenleaf was permitted to retire from his position as the Chief Deputy Clerk of the Court of
STANDARD OF REVIEW
In an attorney discipline proceeding, this Court reviews for clear error the hearing judge‘s findings of fact, and reviews without deference the hearing judge‘s conclusions of law. See
DISCUSSION
A. Findings of Fact
The Commission does not except to any of the hearing judge‘s findings of fact. Greenleaf excepts to the hearing judge‘s finding that he believed that “Beth” was a fourteen-year-old or a fifteen-year-old girl.4
We overrule Greenleaf‘s exception, as the hearing judge did not clearly err, or err at all, in finding that Greenleaf believed that “Beth” was a fourteen-year-old or a fifteen-year-old girl. The record unequivocally demonstrates that “Beth“: (1) identified herself as a fourteen-year-old girl; (2) repeatedly referred to her age; (3) stated that she was a high school student; and (4) sent two photographs that depicted a young teenage girl.5 Although Greenleaf told “Beth” that he thought she was a woman in her thirties, the hearing judge credited DS Yamin‘s opinion that Greenleaf made the statement as part of his grooming “Beth” for sexual activity, not because Greenleaf actually believed that “Beth” was a woman in her thirties. The record is replete with evidence sufficient to establish that “Beth” identified herself as a fourteen-year-old girl; and, thus, there was sufficient evidence for the hearing judge to have independently rejected Greenleaf‘s claim to have believed Beth a “woman.” Moreover, although a person must state that he or she is an adult to enter a Yahoo Messenger chat room, common sense dictates that a minor could enter a Yahoo Messenger chat room
that “Beth” was an adult who was “role-playing” by posing as a fourteen-year-old or a fifteen-year-old girl.
In addition to excepting to certain findings of fact, in an apparent attempt to establish mitigating circumstances, Greenleaf alleges additional facts: (1) he performed well as the Chief Deputy Clerk of the Court of Special Appeals; (2) at the time of his misconduct, he had just returned from sick leave, and was “trouble[ed]” at work because he had been transferred to a secluded office that was away from other employees; (3) he completed “mental health counseling” as a condition of probation; (4) he “suffered ignominy” because of his misconduct; and (5) he “has shown remorse” for his misconduct. The hearing judge did not find that Greenleaf: (1) performed well as the Chief Deputy Clerk of the Court of Special Appeals; (2) suffered from any personal or emotional problems; (3) attempted any kind of rehabilitation; (4) endured any embarrassment; or (5) showed any remorse. As this Court stated in Attorney Grievance Comm‘n v. Davy, 435 Md. 674, 694, 80 A.3d 322, 333-34 (2013):
[A]bsent indications that [a] hearing judge did not consider purported evidence of mitigating factors, where a hearing judge omits the purported evidence of mitigating factors from [the hearing judge‘s] opinion, [this Court] may interpret the omission to mean that the hearing judge did not credit the purported evidence of mitigating factors.
(Citation and internal quotation marks omitted). Here, the hearing judge neither credited nor rejected the alleged facts.6 The record demonstrates that the hearing judge allowed Greenleaf to testify on his own behalf and proffer at length. We see no indication that the hearing judge did not consider Greenleaf‘s remarks. Given the nature of Greenleaf‘s proffer and testimony-i.e., he performed well at work, he was in a secluded office, and he suffered embarrassment it is evident
that the hearing judge did not find this information to be mitigating. Even if the facts that Greenleaf alleges were accurate, it strains credulity that some of them-such as Greenleaf‘s work performance or his being moved to another office-would constitute mitigating factors. Thus, we do not adopt as mitigating factors the facts that Greenleaf alleges.
B. Conclusions of Law
The Commission does not except to any of the hearing judge‘s conclusions of law. Greenleaf excepts to the hearing judge‘s conclusion that he violated
MLRPC 8.4(b) (Criminal Act)
“It is professional misconduct for a lawyer to ... commit a criminal act that reflects adversely on the lawyer‘s honesty, trustworthiness or fitness as a lawyer in other respects[.]”
Here, clear and convincing evidence supports the hearing judge‘s conclusion that Greenleaf violated
We reject Greenleaf‘s ludicrous contention that he did not violate
MLRPC 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation)
“It is professional misconduct for a lawyer to ... engage in conduct involving dishonesty, fraud, deceit[,] or misrepresentation[.]”
Here, clear and convincing evidence supports the hearing judge‘s conclusion that Greenleaf violated
and that Greenleaf clandestinely used the computer to commit a crime, the solicitation of a minor-i.e., that he secretly committed an offense in the workplace for which he knew his employment could be terminated that causes us to conclude that his conduct constituted dishonesty in violation of
MLRPC 8.4(d) (Conduct Prejudicial to the Administration of Justice)
“It is professional misconduct for a lawyer to ... engage in conduct that is prejudicial to the administration of justice[.]”
Here, clear and convincing evidence supports the hearing judge‘s conclusion that Greenleaf violated
profession and Greenleaf‘s employer, the Maryland Judiciary.12
MLRPC 8.4(a) (Violating the MLRPC)
“It is professional misconduct for a lawyer to ... violate ... the” MLRPC.
Here, clear and convincing evidence supports the hearing judge‘s conclusion that Greenleaf violated
C. Sanction
The Commission recommends that we disbar Greenleaf. Greenleaf asks that we reprimand him, “or, at worst,” indefinitely suspend him from the practice of law with the right to apply for reinstatement after one year.
This Court sanctions a lawyer not “to punish the” lawyer, but instead “to protect the public and the public‘s confidence in the legal profession[.]” Attorney Grievance Comm‘n v. Worthy, 436 Md. 633, 643, 84 A.3d 113, 119 (2014) (citation and internal quotation marks omitted). This Court protects the public by: (1) “deterr[ing]” other lawyers from engaging in similar misconduct; and (2) suspending or disbarring a lawyer who is “unfit to continue” to practice law. Attorney Grievance Comm‘n v. Gerace, 433 Md. 632, 649, 72 A.3d 567, 577 (2013) (citation omitted).
In determining an appropriate sanction, this Court considers: “(a) the duty violated; (b) the lawyer‘s mental state; (c) the potential or actual injury caused by the lawyer‘s
Notes
[I]n the context of [MLRPC] 8.4(c), there is a distinction between fraud and deceit on the one hand, and dishonesty and misrepresentation on the other hand.... [W]e made clear that specific intent [to deceive] is not a necessary ingredient of dishonesty or misrepresentation.
(Citations and internal quotation marks omitted). In this case, although Greenleaf did not make a false statement, the record demonstrates that his conduct involved dishonesty, as Greenleaf was certainly not candid with his employer about his extensive nefarious activities in the workplace. Indeed, Greenleaf, on nearly one half of one hundred fifty occasions, used his employer‘s computer to commit a crime while holding himself out to his employer to be an employee who was using his time to perform the duties of the employer in the workplace.misconduct; and (d) the existence of aggravating or mitigating factors.” American Bar Association, Standards for Imposing Lawyer Sanctions (“ABA Standards“) at III.C.3.0 (1992) (paragraph breaks omitted).13
Aggravating factors include: (a) prior disciplinary offenses; (b) dishonest or selfish motive; (c) a pattern of misconduct; (d) multiple offenses; (e) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the [Commission]; (f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process; (g) refusal to acknowledge wrongful nature of conduct; (h) vulnerability of victim; (i) substantial experience in the practice of law; (j) indifference to making restitution; [and] (k) illegal conduct[.] ABA Standards at III.C.9.22 (paragraph breaks omitted).
Mitigating factors include: (a) absence of a prior disciplinary record; (b) absence of a dishonest or selfish motive; (c) personal or emotional problems; (d) timely good faith effort to make restitution or to rectify consequences of misconduct; (e) full and free disclosure to [the Commission] or cooperative attitude toward proceedings; (f) inexperience in the practice of law; (g) character or reputation; (h) physical disability; (i) mental disability or chemical dependency including alcoholism or drug abuse when: (1) there is medical evidence that the [lawyer] is affected by a chemical dependency or mental disability; (2) the chemical dependency or mental disability caused the misconduct; (3) the [lawyer]‘s recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and (4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely[;] (j) delay in disciplinary proceedings; (k) imposition of other
penalties or sanctions; (l) remorse; [and] (m) remoteness of prior offenses. ABA Standards at III.C.9.32 (paragraph breaks omitted).
This Court has disbarred lawyers who violated
In another case in which a lawyer committed a crime, Attorney Grievance Comm‘n v. Dechowitz, 358 Md. 184, 193, 186, 191, 747 A.2d 657, 661, 658, 660 (2000), without noting any aggravating factors, this Court disbarred a lawyer who committed the crime of possession of marijuana with the intent to distribute, and thus “was a drug dealer.” In Dechowitz, id. at 192, 193, 747 A.2d at 661, this Court accepted the lawyer‘s concession that he had violated
Here, as to the duty violated and Greenleaf‘s mental state, Greenleaf intentionally solicited for sexual acts “Beth,” whom he believed to be a fourteen-year-old or fifteen-year-old girl. In other words, Greenleaf deliberately preyed on, and intend-
ed to violate, a person whom he believed to be under the age of consent.
As to the potential injury caused by Greenleaf‘s misconduct, Greenleaf could have solicited a minor for sexual acts or sexually abused a minor if “Beth” had actually been a minor. In other words, Greenleaf had the mindset to solicit, violate, mentally scar, and destroy the innocence of a child. In this case, no injury actually occurred due to Greenleaf‘s misconduct only because “Beth” was not in reality a minor capable of being injured by Greenleaf.
Eight aggravating factors accompany Greenleaf‘s misconduct. First, Greenleaf obviously had the selfish motive of sexual gratification. Second and third, Greenleaf engaged in a pattern of egregious misconduct and committed multiple offenses by communicating with “Beth” on approximately one hundred fifty separate dates. Fourth, Greenleaf has refused to acknowledge his misconduct‘s wrongful nature; indeed, Greenleaf: (a) outrageously asks us to give him “credit ... for not taking matters further” with “Beth“;14 (b) attempts to shift the blame for his misconduct to his employer by contending that he was “trouble[ed]” at work because he had been transferred to a secluded office that was away from other employees; and (c) belittles his misconduct‘s egregiousness in a manner that is woefully inappropriate under the instant circumstances, e.g., indicating that his actual plans for “Beth” were for the future. Fifth, Greenleaf‘s victim, a purported minor, was vulnerable. Sixth, Greenleaf has substantial experience in the practice of law; he has been a lawyer for over thirty years, was a prosecutor for seventeen years, and at the time of the offense was serving as the Chief Deputy Clerk for the Court of Special Appeals. Seventh, Greenleaf has shown indifference to rehabilitating himself; the hearing judge did not find that Greenleaf had made any attempt to seek profes-
sional help. Eighth, Greenleaf engaged in illegal indeed, criminal-conduct.
Only one mitigating factor accompanies Greenleaf‘s misconduct: the absence of a prior disciplinary record. We reject Greenleaf‘s contention that his misconduct is mitigated by such circumstances as the lack of: (1) in-person contact between himself and “Beth“; (2) child pornography; and (3) misconduct that arose out of representation of a client. A lawyer‘s misconduct is not mitigated by the lawyer‘s refraining from engaging in even more egregious and inappropriate misconduct. Similarly, we reject Greenleaf‘s contention that his misconduct is mitigated by other penalties in the form of being placed on probation and leaving his position as the Chief Deputy Clerk of the Court of Special Appeals. Receiving a sentence and losing one‘s job are the natural and foreseeable consequences of committing a crime, and crimes against children are among the most heinous crimes of all. Here, Greenleaf did not lose his job; he was permitted to retire. Greenleaf‘s misconduct is not mitigated by his being placed on probation or leaving his job.
We are more than satisfied that disbarment is the appropriate sanction for Greenleaf‘s egregious misconduct. Greenleaf deliberately solicited and preyed on a person whom he believed to be under the age of consent. Greenleaf had the intent to violate, mentally scar, and destroy the innocence of a child. Greenleaf is a sexual predator who is a danger to the public and is “unfit to continue” to practice law. Gerace, 433 Md. at 649, 72 A.3d at 577 (citation omitted).
Sheinbein, Painter, and Dechowitz lead to the inescapable conclusion that disbarment is the appropriate sanction for Greenleaf‘s egregious misconduct. If disbarment is the appropriate sanction for an obstructionist, a domestic abuser, and a drug dealer, then disbarment certainly is also the appropriate sanction for a sexual predator like Greenleaf. The solicitation of minors is a deplorable crime that cannot be tolerated in our society, much less tolerated when committed by an attorney, employed by the Judiciary and using State-owned computer
equipment to commit the crime in the workplace. Cf. Painter, 356 Md. at 302, 73 A.2d at 29 (“[D]omestic violence is a serious problem in our society.” (Citation omitted)).
Our conclusion that disbarment is the appropriate sanction for Greenleaf‘s egregious misconduct is unassailable, given that: (1) Greenleaf violated
Greenleaf‘s reliance on Attorney Grievance Comm‘n v. Childress, 364 Md. 48, 770 A.2d 685 (2001) is untenable. In Childress, id. at 64, 67, 52, 770 A.2d at 695, 696, 688, this Court adopted the Commission‘s recommendation by indefinitely suspending from the practice of law, with the right to apply for reinstatement after one year, a lawyer who violated
ment was “a ‘rousing success‘“; (b) the lawyer was ““a different person’ in comparison to when [the psychiatrist] first met” the lawyer; (c) “[t]here ha[d] been a ‘tremendous decrease in [the lawyer‘s] obsessive-compulsive symptoms’ “; (d) “there was ‘an insignificant risk’ that [the lawyer] would again” solicit minors for sex; and (e) the lawyer “d[id] not meet the
To be perfectly clear, we caution that Childress does not stand for the proposition that, generally, solicitation of a minor merits a sanction that is less than disbarment. “The severity of the sanction depends on the circumstances of each case ... and any mitigating factors.” Attorney Grievance Comm‘n v. Bocchino, 435 Md. 505, 536, 80 A.3d 222, 240 (2013) (citation and internal quotation marks omitted). Indeed, in Childress, this Court stated: (1) “we must consider certain circumstances ... that mitigate the sanction[,]” Childress, 364 Md. at 65, 770 A.2d at 695; and (2) an indefinite suspension was the appropriate sanction “[i]n light of all of the circumstances, including the recommendation of” the Commission. Id. at 67, 770 A.2d at 696.
For a myriad of critical reasons, we distinguish Childress from the instant attorney discipline proceeding. First, in Childress, the lawyer did not violate
and ... obsessive compulsive disorder[,]” and rehabilitation in the form of treatment by “a board-certified psychiatrist“; by contrast, here, the only mitigating factor is the absence of a prior disciplinary record. Fourth, in Childress, id. at 64, 770 A.2d at 695, oddly, the Commission did not recommend disbarment; by contrast, here, the Commission recommends disbarment.
Fifth-and perhaps most importantly in Childress, id. at 64, 770 A.2d at 694, although this Court held that the lawyer violated a Virginia statute that criminalized solicitation of minors,17 this Court did not determine whether the lawyer violated
words, Greenleaf committed a crime that establishes that he is unfit to continue to practice law.18
Although Greenleaf does not expressly rely on either case, we discuss and distinguish Attorney Grievance Comm‘n v. Thompson, 367 Md. 315, 329-31, 786 A.2d 763, 772-73 (2001) and Attorney Grievance Comm‘n v. Mitchell, 308 Md. 653, 655, 521 A.2d 746, 747-48 (1987), in which this Court adopted the Commission‘s recommendations by indefinitely suspending lawyers who violated
nature of his misconduct, and indifference to rehabilitation; there is a sole mitigating factor (i.e., the absence of a prior disciplinary record); the hearing judge did not find that Greenleaf had been diagnosed with any mental disability; and the Commission forcefully recommends that we disbar Greenleaf, identifying him as “a sexual predator” in its written recommendation and at oral argument.
In sum, we agree. Greenleaf is, indeed, a sexual predator who is a danger to the public and is “unfit to continue” to practice law. Gerace, 433 Md. at 649, 72 A.3d at 577 (citation omitted). For the above reasons, we disbar Greenleaf.
IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING COSTS OF ALL TRANSCRIPTS, PURSUANT TO