*1
Melvin Bar Broderick, Counsel and John C. Asst. Bar Attorney Counsel for the Mary- Grievance Com’n of land, petitioner. for Beltsville, Bergman, respondent.
Melvin for BELL, Argued C.J., ELDRIDGE, RAKER, before WILNER, CATHELL, HARRELL, BATTAGLIA, JJ.
CATHELL, Judge. Counsel, Bar Attorney behalf Grievance Commis- sion, petitioner, and at Board, the direction of the Review filed petition with this seeking Court disciplinary action against Sheinbein, respondent,1 Sol pursuant to Maryland 16- Rule 709(a).2 petition alleges provi- violated sions of Maryland Rule 8.4 of the Rules Professional (MRPC) Conduct based on complaints from Bar Counsel and Henry Quintero.3 R. provisions The relevant 8.4 Rule provide that: professional
“It is misconduct a lawyer to: (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or lawyer fitness as a respects; other ...
(d) engage conduct that prejudicial to the administra- justice.” tion of
1. Mr. Maryland Sheinbein was admitted to the Bar on June engaged Israel, practice and is patent law from his current place of residence. 16-709(a) 2. Rule ”[c]harges against states that attorney shall be filed acting the Bar Counsel at the direction of the Review Board.” We 16-709(a) note that this reference is to Md. Rule as stated in the 2001 edition of the formerly comprised Rules. What was in Rule encompassed 16-709 is now in several different rules in the 2002 edition. Nos.2000-113-16-6; 3. See BC Docket 2000-222-00-6. *5 709(b) 16-711(a),4 this Maryland Rule and
Pursuant 16 — Pincus of Judge S. Michael referred the matter Court County for to conduct evidentia Montgomery Court Circuit of of fact and conclusions law ry hearing findings and to make duly Respondent was respect respondent’s case. March timely petition. and answer to the On served he filed 20, 2002, place. Judge took Pincus evidentiary hearing witnesses, Stein, attorney testimony from two Paul T. heard respondent, and later for and Detective for Samuel Sheinbein Hamill, investigating the murder primary Paula detective Tello, remaining evidence admitted of Alfredo Jr.5 The warrant and the hearing application included the for search any upon respondent prior to of warrant that had been served giving proceeding. actions rise to the instant among also Additionally, respondent’s admissions were judge admitted Specifically, hearing evidencе considered. following: Charges Maryland in State Sol Statement “[T]he Sheinbein, Maryland Montgomery District for Court 6D00071133; an Warrant on County, Case No. Arrest Document, D980442735 in Charging Warrant No. State of Sheinbein, Maryland for Maryland v. Sol District Court 6D00071133; for Montgomery County, Application Case No. Charges Maryland in v. Sol Shein- Statement State of 16-709(b) Appeals by may 4. Rule states that the “Court of order direct any charges be in and shall transmitted to and heard court designate judge charges judges to hear the and the clerk responsible maintaining proceeding.” in for the record (a) findings Rule 16-711 states that a "wrillen statement of the of facts proceedings and conclusions of law shall be filed in record of the copies parties.” sent to all 16-709(b) (a) We note that these references to Md. Rules and 16-711 are as stated in the 2001 What edition Rules. formerly comprised encompassed now Rule 16-709 is in several (a) What different Rules the 2002 edition. was Rule 16-711 is now encompassed in Rule 16-759. Respondent's alleged sending misconduct concerns his actions in his son, Sheinbein, Samuel to Israel after had been told son that the son had killed Mr. Tello and after knew that being investigated by Samuel was Detective Hamill in relation to the murder of Mr. Tello. 6D00071133; an for Application Case No. Search bein Montgomery County, Maryland dated Seizure Warrant 19, 1997, and September the resultant Search Seizure 19, 1997, September Warrant issued the residence Lane, Spring, Montgom located at 2940 Birch Tree Silver *6 ery County, Maryland, Respon then the of residence the family, Finally and his which included his son dent Samuel. received, evidence, part the Court as of Petitioner’s the Jury transcript Proceeding of the Secret Grand conducted 25, 1997, September eighty-two page on which contained the transcript testimony Respondent, Sol Sheinbein on that date.” found, Judge by and hearing,
After the Pincus clear convinc- evidence, ing Respon- violated MRPC 8.4. in exceptions Judge dent filed this Court several Pincus’ findings of fact and conclusions of law. We overrule these exceptions accept hearing findings of fact and judge’s Considering respondent’s egregious conclusions of law. con- duct, appropriate sanction is disbarment.
I. Facts Hearing Judge’s Findings A. The Fact belоw, evidentiary part From the record include we Judge findings inquiry Pincus’ of fact relevant to our and we they hold that convincing were established clear and evi- dence: 17, 1997, September Enrique
“1. On or about 16 or Alfred Tello, in place Jr. was the victim of a murder that took Montgomery County, Maryland. 19, 1997, a.m., September
2. at approximately On 11:00 body garage premises was discovered in the located Montgomery County, Mary- at 14041 Hill Breeze Lane land. Upon discovery body]
4. the homicide division of [of
Montgomery County Department Police was notified. neighborhood pursuant During a canvas 11. who investigators located a witness discovery body, Camaro) and an older green (possibly car a a dark observed in front of Breeze Toyota) parked (possibly white car location. Hill Lane as one were observed and described
12. Two individuals appearance, being unkempt male with anoth- white possi- dark-complected as a white er who was described male, height with an athletic build Hispanic 5'11" ble having dark hair. weighing pounds 180 and 200 between having individuals as been identified these This witness September 16 or front of the residence on either yard 17, 1997. being, white subjects were described These male build, hair,
male, dark age 19 to 5'10" with athletic wearing pants shirt and dark and the other dark tee *7 male, age, with medium subject years as a white hair, build, wearing pants tan and a white tee husky brown shirt. observa- investigators, upon
16. The based the witnesses Lane, tions, Birch and with pathway searched the from Tree dogs, appeared drop- what to be the use cadaver traced Hill to a location lets of blood from the Breeze Lane address at across from on Birch Tree Lane ended the street Lane, 2940 Birch the residence of Samuel Tree Sheinbein. directly Birch 17. The Sheinbein residence on Tree Lane Hill at 14041 Breeze Lane where the behind the residence body found. victim’s was Sheinbein, Investigators
18. identified that Robert Israel Sheinbein, the brother of Samuel and elder son of the herein, Respondent owned a Pontiac Firebird and listed the registration. 2940 Birch on his Tree Lane address investigators 22. Samuel Sheinbein Homicide ascertained years age, height 5'10" in with a muscular was seventeen an presented appeаrance Hispanic light build and be or a black. skinned determined, They
23. also from the son of the owner property, Hill Breeze Lane Sheinbein lived on Birch Lane, Hill property, Tree behind the Breeze Lane windows, green a dark Pontiac drove Firebird tinted style body not unlike the of the Camaro one witness identi- being in front fied the street of the Breeze Hill Lane premises. incorporated
24. All of the above information was into in support application affidavit of an for a warrant search presented judge Montgomery County to a District Court 19,1997. September requested perform 25. The search warrant was a search Lane, premises located at 2940 Birch Tree Silver Spring, Montgomery County, Maryland in connection with investigation of the murder of Mr. Tello. sought 26. The warrant was to search the Sheinbein resi- degree for evidence of a crime of first ... dence murder any relating other evidence of first degree the crime murder. 19, 1997,
28. September sup- On the search warrant and affidavit, porting incorporating the above referred facts with disclosures, greater specificity presented and additional Respondent herein. Respondent 29. the time of the execution of the search warrant read contents and observed the search residence, particularly garage. of his Respondent’s premises approxi- The search of took *8 mately and a investigators five hours result seized re- saw, ceipts, gloves, a box for a circular a rubber shirt with stains, apparent police blood and a scanner. warrant,
31. At the time of the of execution the search presented Respondent, when the documents were to the after the items n «' n ereobserved and seized pursuant warrant, a Respondent homicide detective indicated to the and re- investigation matter under the seriousness from his if he heard her contact Respondent quested the do. would son, indicated he which he warrant the search of presentment At time of 32. owned a if he execution, was asked Respondent and its did indicated he Respondent cart. garden Ron Rico’ ‘red found. was not the cart but, was searched garage when the homicide one recovеred in fact was the That cart 33. scene. 20, 1997, p.m., at 1:30 September following day,
34. warrant the search had served detective who the homicide by telephone. him She spoke with Respondent upon his son from had heard Respondent or not inquired whether not. had and was informed he Samuel had retained Respondent was advised At that timé she 35. counsel. Respondent. spoke last time she That was the Shein- arrest of Samuel issued for the
37. A warrant was 20, 1997. Before the September evening on bein upon Samuel and served could be executed arrest warrant States Sheinbein, and left the United Samuel fled Respondent Israel, suggestion of the upon to travel (Grand Jury Transcript, p. with his aid and assistance. 1-17) 3-13, 15-25, p. lines p. lines lines Israel, plane ticket to paid for the Respondent 38. The ticket, of his brought passport trip albeit a round him Sheinbein, son, him in New York to enable Samuel States. leave the United immunity, grant pursuant Respondent,
39. The Maryland in Jury for the State of the Grand testified before 25,1997. County September Montgomery and his immunity, Respondent grant 40. Prior to that against privilege Fifth family had invoked their Amendment and, judge brought before being after self-incrimination they again County, where Montgomery the Circuit Court privilege, Fifth Amendment their collectively asserted testimony. compel their ruling was made to *9 42. Respondent The Jury, admitted to the during Grand testimony, his sworn that he was acquain- aware of his son’s by Needle, tance with a friend the name of Aaron a co- Tello, defendant in the murder of Enrique Alfred Jr. The Respondent’s in testimony, connection with his son Samuel’s Needle, relationship to Aaron indicated he did not wish his son to associate Needle due to having their both run juvenile afoul of the authorities. Respondent’s
43. protestations contrary notwith- learned, standing shortly Tello, he prior to the death of Mr. that Needle and his son Samuel were associating again, and in associating quite were fact closely frequently. Respondent, 44. The in testimony his Jury, the Grand oath, under was indicated he unaware of his son’s associa- victim, Tello, Jr., tion with Enrique Alfred also known as Freddie Tello. Respondent that,
45. The further in response testified to a specific question, he was uncertain whether not a Makita circular saw or box for such a saw garage. was his 46. Respondent The did admitted he much have deal- ing within garage, that it was in fact the domain almost exclusively of his son Samuel.
47. questioning Under at the Jury, Respondent Grand oath testify under did that a tarp blue was known to have purchased been for the use of his son in protecting jeta ski they which purchased had for him. Respondent further testified oath under before the Jury
Grand Wednesday, 17, 1997, that on September approximately 9:00 p.m. he returned his home his where son Samuel was found. At that time he had been contacted phone on his cell his son requested Samuel and to bring pizza home a but, their dinner. upon He did so his return him ‘boy Samuel said to quick’ was and upon entering Respondent the house very strong noticed a odor. 49. He observed a fan standing to dissipate kitchen Samuel, inquired the smell and relating fan, to ‘what accidentally dis- replied had he Samuel the hell that?’ that, recharg- jet while battery for his ski and charged and, result, while he improperly it, it ing he connected bedroom, fire and that was the caught battery cause smell. *10 son, why he questioning his Respondent upon testified
50. battery garage, charge to the the attempted had he it in did the a couldn’t reach and therefore indicated cord kitchen. and, although investigate Respondent did not seek to
51. house, including upstairs permeated the smell the entire area, without further went about his business bedroom inquiry. on to testimony went reveal Respondent’s
52. The September night Wednesday, on the later a.m., Thursday, Septem- morning 1:15 approximately a parking across the street ber he observed car unusual all the homes from his He noted this was house. and not re- driveway garage space and did had sufficient neighbors. parking on the his quire street up car and walk an individual exit the 53. He observed his right of house. street towards the on his to walking property, saw the Respondent 54. driver returning and then to trunk his garage, side his trunk, car, bag, appeared which opening taking out a bag, again approached property shopping and like garage. side of and, anticipating At that their police 55. time he called the arrival, opened Respondent front When the door. by the individual who he the door he was confronted opened recognized to Aaron thеn be Needle. police explained, At and Needle
56. that time the arrived there, doing response doing he was he what nothing’ but that to see ‘nothing, Sir he came Samuel ‘give something’. him further, proceed
57. The Respondent any elected not to identified the individual as he police someone knew to the thereupon they left. 58. Respondent questioned The then Needle about what he was returning to Samuel. Needle indicated he was re- turning garbage bags’. ‘his Samuel 59. Respondent’s testimony went to relate he invit- observed, be, ed appeared Needle into his home and what bags, a box of and a garbage yellow light. snake Needle, inquiry 60. Upon explained further Needle he had in fact come over to meet "with and go Samuel out with him. indicated he going He Samuel were to see ‘Maria’. girl Needle identified her as Puerto Rican who Samuel away. had to visit parents met and wanted while her were investigator, After the disclosures of the the review warrant, the supporting affidavit and the search Re- spondent had' sufficient knowledge to believe his son was *11 suspect perpetrator and probable of the murder of Mr. Tello.
62. to in addition the facts contained to affidavit support warrant, application the search and the of the items in own garage, observance seized his Respon- floor, garage dent also ashes on his which observed investi- gators was the situs of the dismembering concluded Tello, attempted body immolation of Alfred Enrique Jr.
At Application the time the for Search Warrant and presented Search Warrant were Respondent by to the September 17, 6, on Hamill 1997 Detective Hamill Defective by learned Respondent lawyer was a and was advised him that he had earlier contact from phone. Samuel by occasion, 19, On more than one on evening September approximately midnight, between 9:30 and Detective hearing judge 6. transcribing We note that the erred when this date into findings these transcript of fact. Consistent with the of Detective testimony, presented Hamill’s date the warrant was September was 1997. by Respondent Hamill was he would assured his son and contact her whenever he heard from otherwise reprеsentation whereabouts. His alert her his contrary, although speak do so he did he failed to mid-day Hamill on phone approximately Detective conversation, Saturday, September 1997. During had although telephone his son Robert conversation with Samuel, relayed Respon the substance which was dent, [respondent] [Detective he failed alert her Hamill] Instead, family of that contact. he informed her the had Stein, Esquire, Paul T. on retained behalf Samuel that, future, Samuel, any should contact with there be through it should be counsel. son, Robert, Respondent’s telephone
63. eldest received a.m., September relayed call at or about 1997. 10:00 He parents the substance of that conversation to his that Samu- At approximately p.ha. el would call back at 3:00 that time Respondent spoke They both Robert and the to Samuel. him was urged to come home which he indicated he prepared City. Respondent to do as he was Ocean neither counsel, Stein, Paul T. nor Esquire, informed Detective Hamill, time, of his contact with Samuel at this nor did he convey fact that his son to otherwise he believed be City, Maryland. Ocean
64. At p.m. p.m. some time between 1:00 and 3:00 20, 1997, September again Samuel did call Robert. Samuel to call back speak at which time he would to his father. When he did so his should ‘get father indicated Samuel away from Aaron’. Respondent expressed contends son Samuel suicid-
al ideation in with Aaron having connection Needle also a to commit It was at expressed desire suicide. this time told his son he Israel. Respondent go should to 66. to Samuel’s furtherance of efforts facilitate States, flight purchased the United the Respondent from airplane depart just tickets Samuel to New York for from Aviv, midnight 21st and in Tel pri,or September arrive Israel at 10:00 a.m. Eastern time on Mon- approximately day, September 22nd. Respondent September
67. When the met Samuel Firebird, 21st he was told he should take the which Samuel York, which and Needle drove New and contained shotgun, gun sawed off stun and various handwritten notes from and Needle. Samuel Respondent
The Court finds that at no time while son, Samuel, company any in the of his is there indication any longer or рresent that Needle was also Samuel’s company. Respondent did fact turn over this evidence of the to his who in turn it
crime counsel made available investigating authorities.
Although Respondent was unaware the issuance 21, 1997, aware, September the arrest wdrrant on he was warrant, his observations the results the search from Warrant, scrutiny application Search Hamill, his discussions with that his son was a Detective investigation and was a who the investi- person focus of gating expressed great authorities desire to interview Nonetheless, a suspect. Respon- least a witness if dent obtained passport prior leaving Maryland Samuel’s Also, it to New York where he met brought his son. prior Respondent’s suggestions that his son leave Israel, the United States for he was aware his son had killing 16-25, p. admitted to Tello. (Transcript, lines 1-14).” 51-56, p. lines added.][Emphasis [Alterations add- ed.] Hearing Judge’s
B. The Conclusions of Law hearing judge subsequently concluded that 8.4(b) (d). First, hearing judge violated MRPC found actions satisfied the elements of the common officer, law obstructing hindering police offense of which include: *13 of a
“(1) engaged performance in the officer police A duty; accused[, omission,
(2) here act, by the perhaps An or the officer obstructs or hinders Respondent,] which the duty; that of performance Sheinbein,] [, of facts (3) Knowledge by the accused Sol (1); element comprising
(4) act or the officer to obstruct hinder Intent (2).” constituting element omission (1983) State, Md. Cover added). found that re- (alterations Judge specifically Pincus officer, police that duty aware of the “well spondent was Hamill, performing, of i.e. process was in the Paula Detective Tello, Jr.” and Enrique investigation of the death Alfred question to his desire knew of the Detective’s respondent that responsible for the death son, knew be respondent who addition, subsequent respondent knew that Mr. Tello. Israel, would frus- his son to flee to arrangements to assist Judge Pincus performance of her duties. that officer’s trate intent argument, respondent’s that respondent’s not find did son from Mr. Needle’s influence merely to save his suicide, and we to be credible are alleged threats his son’s He credibility determination. to disturb that prepared of common requisite satisfied the elements found that the facts obstruction, had violated respondent that and ruled law 8.4(b). MRPC that also violated hearing judge determined 8.4(d) prejudicial in conduct that is by “engagfing]
MRPC based on justice.” This conclusion was administration criminal actions were court’s assessment in the entire impaired public’s confidence in nature and facts, hearing Reciting egregious several legal profession. his son to Israel in respondent’s sending judge concluded “integral party to a knowledge that his son was an spite oath was “in contravention investigation” criminal direct Bar of was admitted to the open court when he he swore 24,1971.” on June Court of Appeals 22,' 2002, May On filed this Court several exceptions Judge findings Pincus’ of fact and conclusions of any exceptions. law. did not file Petitioner
II. Discussion *14 attorney disciplinary proceedings This Court reviews according to standard in Attorney articulated Grievance Gavin, 176, 189, 193, Commission v. 350 Md. 711 A.2d 200 (1998): original complete
“This has jurisdiction Court over attorney disciplinary 16-709b; proceedings. Md. At- Rule Adams, 86, 93, torney Grievance Comm’n v. 349 Md. 706 1080, (1998); A.2d Attorney 1083 Grievance v. Comm’n Glenn, 448, 470, 463, (1996); 341 Md. 671 A.2d 473 Attorney Kent, 361, 371, 909, Grievance v. 337 Md. Comm’n 653 A.2d (1995); Powell, 914 Attorney Grievance Comm’n v. Md. 328 (1992). 276, 287, 102, 614 A.2d 108 independent Under our record, review of the we must determine whether the find- ings hearing judge convincing are based clear and ‘hearing findings evidence. The court’s of fact are prima correct and will not they be disturbed unless are facie clearly shown to be erroneous.’ Attorney Grievance Garland, 383, 392, 465, Comm’n v. 345 Md. 692 A.2d 469 (1997) (citing Attorney Grievance v. Goldsborough, Comm’n 342, 347, (1993)). 330 Md. 624 A.2d Accordingly, lawyer the ultimate decision as to whether a has violated Garland, professional rules rests with this Court. 345 Md. 469; 692 A.2d at Attorney Grievance Comm’n Breschi, 590, 599, (1995).” 340 Md. 667 A.2d judice presents The case sub this with a Court factual scenario previously that has not been before this Court. Findings
A. Absence of Self-Defense in of Fact Respondent exception, takes no to hearing judge’s Find- ings through Respondent of Fact 1 except does however to Finding the last sentence of of Fact 68. The sentence states, “Also, question prior to Respondent’s suggestions Israel, that his son leave the United States for he was aware killing Tello.” had admitted Sheinbein] [Samuel his son added). exception respondent’s (Alteration The basis respondent’s portion omitted hearing judge causes which, respondent, according testimony, Jury Grand testimony in The misleading. language be remaining of the details knowledge relates to question killing, as admit- Tello involvement Samuel Sheinbein’s respondent’s son. ted judge’s hearing exception, as the this
We overrule and, thus, clearly testimony is irrelevant of this omission ‘‘prima of fact are findings court’s hearing A erroneous. facie they shown are unless ed] and will not [be] correct disturb! Comm’n v. Golds Grievance clearly Attorney erroneous.” be (1993). 342, 347, 330 Md. borough, of self son’s assertion any mention of the omission of disputed proceeding this bearing on the outcome has little defense *15 It therefore, proceeding, this irrelevant.7 as to and is knew, in to his actions respondent prior undisputed that Israel, that absconding to his son in encouraging aiding inappropri Respondent’s had committed a homicide. his son to Israel with sending his son conduct stems from ate Mary had a homicide knowledge that committed Samuel land, of Mr. Tello’s death circumstances precise not from the his son’s assertion might ultimately credit jury or whether a than state finding does no more disputed The self defense.8 testimony would be as only possible of this self-defense The relevance 7. requisite intent to hinder Detective respondent whether had the will investigation. hearing judge spoke to this and it be The HamilTs by discussed this Court infra. self-defense, Although that that his son claimed stated eventually charged wilh a jury Samuel was issue is for a to decide. addition, 1999, pled guilty in an Israeli felony. In Samuel Sheinbein twenty-four years in an killing was sentenced to court to Mr. Tello and parole years imprison- prison. eligible for after sixteen He is Israeli furlough privileges apply after eligible to for weekend ment and he is Hallee, Legacy: Israel’s only years. Sheinbein four See Jesse The Complexity, Am. U. Int’l a 15 to Grant Extradition as Model of Refusal 705-06, L.Rev., 667, 706, (2001). n. 214 terms; this more it suggest any improper concise does not interpretation. 8(b)
B. Rule This has Court held that Bar standard of proof Counsel’s theory a actions by violate the MRPC crime, constituting results, a albeit no criminal conviction is to show underlying that the conduct by constitutes crime clear evidence; convincing the criminal “beyond a rea- sonаble doubt” standard. Attorney See Grievance Comm’n v. Childress, 48, 55, (2001); 364 Md. 770 A.2d Attorney Garland, 383, 390, Grievance Comm’n 345 Md. 692 A.2d (1997); Proctor, and Attorney Grievance Comm’n v. 412, 418, (1987). 309 Md. Using the clear standard, convincing we hold that Bar presented Counsel sufficient facts illustrate that committed the obstructing hindering such, crimes of or police As officer. 8.4(b). respondent’s conduct violates MRPC 1. Common Law Obstruction Respondent excepts hearing judge’s finding that he committed the common law of obstructing hindering offense or police through Sunday, officer his actions of September son, 1997. His actions suggesting Samuel, include to his Israel, Samuel flee to transporting passport of his son’s from Maryland to City New York fleeing, purchas- facilitate the ing plane of his son’s ensuring ticket to Israel and that his son plane, boarded that all knowing the while that his son had killed Mr. Tello. exception. We overrule this common law elements for the offense obstructing hindering a police officer are:
“(1) police A engaged performance officer in the of a duty;
(2) act, An perhaps omission, or by the accused which or obstructs hinders in performance the officer the of that duty;
(3) Knowledge by the of comprising accused facts ele- (1); ment
(4) act or or the officer the hinder Intent to obstruct (2).” element constituting omission focus of Cover, primary A.2d 1284. The Md. at at hearing judge’s finding is to exception the respondent’s element, to ob- respondent’s intent to the fourth reference Hamill. or hinder Detective struct of either challenge to the establishment There no (1) “a police was officer (3), that Detective Hamill elements duty” of and that in the engaged performance (1),” respec “knowledge comprising ... of facts element had fact, knowledge personal Respondent, Id. had direct tively. Mr. investigation of was involved in Hamill Detective specific not only had conversations Respondent death. Tello’s investigation of Mr. regarding her with Detective Hamill death, and the examined the search warrant Tello’s but he for warrant. application for the
Judge application Pincus found that the specifically search by respondent warrant examined while the search was clearly being application Thе describes the was executed. (an body, of the of Mr. obvious homi- finding details Tello’s cide), persons transport- two the observations of witnesses of a cart ing something tarp in a cart with cover similar to blue house tarp by respondent owned in the direction of the found, body was that the cart was found where victim’s along tarp, body blue that a trail proximity house, respondent’s droplets vicinity blood back led respondent’s description son met witnesses’ of one son, respondent’s cart persons pushing the and that the time, obtained that could key a relevant had the location body was from the be used enter house where the found son of the owner of that house. application clearly stated that the warrant to search being requested purpose house
seeking Respondent “of the crime of murder.” evidence documents, but warrant’s only read these observed search verbally agreed to alert execution even the Detective knew, Furthermore, his son’s whereabouts. even *17 admissions, from his son’s own that his son was in fact person who Mr. reject killed Tello. We any suggestion that there was a lack of convincing clear and establishing evidence respondent’s knowledge that a homicide had occurred and that primary his son was a suspect Thus, in a murder. these two elements are satisfied.
Similarly, there is no doubt that actions in devising and facilitating his son’s departure to Israel obstruct ed and hindered Detective Hamill in performance of her lawful duties. These actions denied any Detective Hamill opportunity to pursue investigatory contact, leads and to question, subsequently arrest Samuel Sheinbein. Respon fully dent was aware his actions and omissions would impede Detective Hamill’s investigation. These facts more than satisfy suffice to the first three elements of the common law offense of obstructing or hindering officer. satisfy element,
To fourth showing, there must be a evidence,9 convincing clear and intended obstruct or performance hinder Detective Hamill’s of her lawful Respondent duties. suggests that hearing judge’s finding of ignored intent our precedents that have held that this requires element a finding that the accused have the sрecific intent to obstruct or hinder the officer. Respondent further alleges intent, that his actual in keeping information from Detective Hamill and assisting Israel, his son to flee to was “to prevent his son from committing or being suicide killed in sort some of confrontation with the police.” Respon dent conjured that, claims that he plan resort,” “as a last put Israel, place, his son “where his son would not be contemplating running suicide or around with a gun in his Respondent car.” then cites to events occurring his son after already had fled to Israel and his lack of knowledge regarding the arrest warrant for his son as explain evidence to respon intent. dent’s hearing judge said: Childress, 689; Garland,
9. See
‘Unless [sic] the nature person intends presumes law that Thus, requisite his acts. consequences probable [sic] from the defendants may be inferred criminal intent is of an act which knowing commission voluntary and do omission law or from the defendant’s forbidden ” 10 law.’ required by an act findings regard hearing judge’s first look at the We those and determine whether credibility respondent can we determine clearly Only then findings are erroneous. 21, 1997, when Sunday, September knew on what disciplinary action. resulting this committed the acts he that, Respon judge specifically found “While hearing The his son may have been to save position is that his intent dent’s alleged threat of Aaron Needle and the from the influence of ideation, find these does not suicidal Court Samuel’s answer question that we must to be credible.” The assertions clearly hearing judge meets the finding this is whether erroneous test. hearing that support is with facts replete
The record testifying was not credible in finding judge’s saving that his intent was limited Jury before the Grand suicide, police. Needle, or a shootout with the Mr. son from testimo- from own most relevant facts come The County, Jury Montgomery ny11 in front of the Grand Jury Judge quoted'from Criminal Instructions Pincus 10. Intent, Edition, (citing p. Commentary, § General Second 3.01 Montana, 61 L.Ed.2d 442 U.S. 99 S.Ct. Sandstrom (1979)). hearing in front Respondent present at the March was not Pincus; currently Judge presently in Israеl. There is he is that, testimony itself, which is in and of undermines the credibility of respondent’s intent argument. Although respon- may dent have had no actual knowledge of his pending son’s arrest warrant at arranged Israel, the time he flight he certainly police, likelihood, knew in all would eventu- ally seek to him. following arrest exchange occurred Jury the Grand proceeding:
“Q[uestion of Okay. Sunday Now night, Prosecutor] obvious- ly, trip up go set for Samuel to to Israel. did When go Robert to Israel? Respondent] Okay. Monday,
A[nswer On we decided that Sunday, there was no—on there was no arrest warrant Samuel, whatsoever; whatsoever for none that he was not a person, wanted a fugitive. he He was not on the run officially by police— Q Right. *19 be;
A—but he would that’s obvious.” Respondent’s added) Jury Testimony Grand (emphasis at 69 (alterations added). respondent Here plainly admitted that he knew that his son “obviously” would be on the run from an arrest although yet officially.” “on the run Cou- warrant pling with respondent’s this testimony that brought he his son’s passport to him in City, New York suggests that his overriding concern was to assist his son to circumvent law by absconding. outstanding respondent’s warrant for arrest. See Arrest Warrant on Document, Charging Maryland Warrant No. D980442735 in State Sheinbein, Sol District Court of Montgomery County, Case Therefore, No. respondent’s 6D00071133. testimony in this record is transcript respondent's grand jury from testimony that was heard Montgomery front of the County Jury September Grand Judge However, Pincus heard testimony no live respondent. from Judge position Pincus was still in the credibility best to assess the of the evidence, as he did testimony observe the demeanor and live of the remaining Attorney Bakas, witnesses. See Grievance Comm’n v. 395, 402, (1991) how, Md. (stating in the context attorney grievance of an proceeding, hearing judge a is in the best
position witnesses). credibility assess theory addition, testimony debunks his own respondent’s In contemplation of Samu- trip bought a round ticket that he danger. Respon- no longer was after return Samuel el’s his price that of the ticket was testimony suggests dent’s Jury testimony, respondent testi- In his Grand true concern. City, purchased Air in York and I fied, went to Tower New “I ticket, well, round-trip cheap- one-way ticket ticket — Air.” one-way than Tower er —on that testimony also shows transcript respondent’s The longer in presence that was no respondent knew Samuel respondent his when Aaron Needle Needle’s influence fact City. in New York that Samuel family met Samuel theory Needle by contrary himself is addition, danger an imminent to Samuel. presented found over the hearing judge specifically that Samuel turned brother, his mother and shotgun car and when time, presence in the of his to New York. At that when came apparent danger not in imminent of com- family, Samuel was totality facts mitting suicide. The illustrates from escape intent was facilitate son’s respondent’s true States, in doubt ultimate placing United least by jurisdiction in which his son apprehension charges. his son imminent and serious criminal knew faced “ found, hearing requisite ‘the criminal intent judge As the voluntary knowing may be inferred from the defendant’s ” law.’ of an act which is forbidden commission Here, hindered, respondent severally prevented, even De- in connec- investigating Hamill from Sheinbein tective Samuel respondent’s expla- the death of Mr. Tello. tion with Because *20 credible, to to be look nations as his intent were found we exactly to to see what else the record reveals as what again go helped time he to Israel respondent knew the Samuel convincing is clear order to ascertain whether there as to intent to take specific whether was evidence which would hinder or obstruct Detective actions he knew supplies ample regard. The record evidence that Hamill. foremost, First and at the time helped he Samuel abscond Israel, respondent to knew that his son had killed Mr. Tello killing and that the was by police considered to abe murder. It is of no consequence to this disciplinary proceed- ing that professed Samuel that the killing was in self-defense. The fact remains that respondent knew that Samuel commit- ted the of homicide Mr. Tello. Whether that killing was justified decide, jury is for a to not respondent. Respondent, by his own testimony, also knew that it was imminent that the police would out seek and arrest Samuel. He was fully aware investigation had focused on his house and his son because of the information contained in the application for a warrant, search which he had Respondent read. thoroughly planned his getaway. son’s brought He his passport son’s from to New York. As far reveals, as the record there is no evidence his son thought even had a fleeing until Israel his father arrived in Respondent New York. person who first suggestion made the to his son.12 Re- spondent proceeded then to purchase plane ticket for his son proceeded arrangements make stay his son to relatives All Israel. of these events took place before Israel, sent his son to but he knew his son after had committed a homicide that was by considered police be a Respondent murder. mainly relies on the fact that he knew of no arrest warrant for his son at the time However, he, himself, actions. admitted that his son “was not run officially by police be; would that’s —but obvious.” He was well aware both inappropriateness flight his son’s impact and of the it would have on Detective Hamill’s criminal investigation. conclusion, we hold that respondent had specific
intent obstruct or hinder investigation probable arrest his son sending him to Israel. During respondent’s Jury testimony, Grand prosecutor directly respondent, asked go “Whose idea was it to Respondent to Israel?” replied, "It was mine.”
249 8.4(b) of Rule 2. Violation convincing evi was clear hold that there We that re conclusion hearing judge’s supports that dence obstructing law crime the common committed spondent con that We hold hindering police a officer.13 8.4(b) 8.4(b). states: Rule Rule necessarily duct violates lawyer to: misconduct for a professional “It is adversely on the (b) that commit a criminal act reflects lawyer as a or fitness honesty, trustworthiness lawyer’s respects.” other alleged of an hindering police investigation a
Obstructing or
trust-
honesty,
“lawyer’s
on a
profound impact
a
murder has
It is
respects.”
lawyer
in other
or fitness as
worthiness
possible.
is even
any
that
other contention
perceive
difficult
8.4(b)
Rule
to violate
that we have held
Types of crimes
8.4(b)
attorney
where an
of Rule
(finding a violation
include:
cocaine) Attorney Griev-
simple possession
was convicted
(2001);
574,
A.2d 119
Black,
766
v.
362 Md.
ance Comm’n
8.4(b)
attorney was
where the
of Rule
(finding
violation
taxes) Attorney Grievance
pay
of failure to
income
guilty
(2000);
Atkinson,
646,
A.2d 1086
Md.
v.
Comm’n
8.4(b)
committing acts of domestic
by
(attorney violated Rule
wife)
Comm’n
Attorney Grievance
against his
violence
conduct a “de novo"
requires that this Court
Rule 16-759
then
judge's
of law. The Rule
hearing
conclusions
review of the
court
hearing
“may” pay
to the
certain deference
that
this Court
states
We are not
findings
if we choose to do so.
judge's
and conclusions
indicating
convincing evidence
is clear and
bound to them if ihere
(B) pro
paragraph
findings
appropriate.
The rule
are
additional
discussion,
vides,
may
its
the “Court
confine
as relevant
to our
However,
challenged by
exceptions."
findings
of fact
review
law,
In ihe
completely “de novo."
the review is
to conclusions of
i.e.,
general,
had
judice
charges were
sub
case
8.4(b)
(d);
specifying
without
provisions
of Rule
violated
alleged
committed.
to have
particular
criminal offenses
lawyer
profession
violated
to whether a
has
ultimate decision as
“[T]he
Gavin,
at
711 A.2d at.
Court.”
350 Md.
al rules rests with this
469; Breschi,
Garland,
340 Md.
(citing
C. to the — Administration of Justice Generally, this Court has found conduct to prejudi be 8.4(d) justice cial to the administration of in violation of Rule when there has either that been conduct is criminal in nature practice conduct that relates to the of law. In the sub case judice, that respondent’s we find actions are so that appalling fit; either shoe respondent’s will acts are both criminal in directly nature and harmful to legal profession. A prerequisite criminal conviction is not a finding for 8.4(d) a violation of Rule and conduct prejudicial to the justice. administration of Attorney Grievance Comm’n v. Breschi, (1995).14 340 Md. Based discussions, on our supra, respondent’s of how actions consti officer, tute the of obstructing hindering police crimes it necessarily follows that preju criminal conduct is dicial justice to the administration of in violation of Rule 8.4(d).
Finding rеspondent’s
prejudicial
criminal conduct
justice
administration of
support
finds
in a disciplinary pro-
ceeding
Alaska, albeit,
from the state of
attorney
there
being disbarred had been convicted of criminal
In
offenses.
Although respondent
in
any
this case has not been convicted of
crime,
charges pending Montgomery County.
there are
in
See State-
Sheinbein,
Charges
Maryland
ment of
in State
v. Sol
District Court of
6D00071133;
Maryland
Montgomery,
for
No.
Case
an Arrest Warrant
Document,
Charging
Maryland
on
Warrant No. D980442735 in State of
Sheinbein,
Maryland
Montgomery County,
Sol
District Court of
for
6D00071133; Application
Charges
Case No.
for Statement of
in State of
Sheinbein,
Maryland
Respondent
v. Sol
No
Case
6D00071133.
is also a
currently
citizen of Israel and
resides there.
in
bar, respondent
cannot be tried
case at
Webb,
In
“Duncan criminal Webb’s fact accessory to first offense of after felony of the meaning of is a crime within the degree murder serious engaging Alaska Bar Rules constitutes Rule DR turpitude in violation of illegal involving moral conduct 1-102(A)(3) Responsibility Professional of the Code of engaging prejudicial well as conduct 1-102(A)(5) justice in violation of DR administration of Responsibility.” Professional the Code of added). quote That court went (emphasis Id. case in a footnote that said: facts from Mr. Webb’s criminal *23 “ the commission simply ‘Webb did more than lie. After murder, and he or of a brutal coldblooded concealed most knowledge they had aided with that commit- the murderers they might that degree ted first intent murder ” trial, arrest, or or from conviction.’ escape avoid State, 295, 410, v. P.2d 304 (quoting Id. at n. 10 Webb 580 (Alaska 1978)). Here, did than lie more or hide steps truth He to from Detective Hamill. took intentional son of his son’s improperly consequences aid his to avoid stated, prejudicial his were Simply criminal conduct. actions justice. of to the administration actions,
Regardless
nature
respondent’s
of the criminal
was
thwarting
investigation
prejudi-
his
Hamill’s
Detective
recog-
has
justice.
cial
administration of
“This Court
lawyer
subject
professional discipline
nized that
is
under
a
the lawyer
the Rules of Professional Conduct for conduct
lawyer.”
his
engages
Attorney
in outside
or her role
(Childress I),
373,
360
Grievance Comm’n
Childress
Md.
(2000).
383,
117,
122
“We
also held
A.2d
have
that
precedent
for a finding
criminal conviction is
a condition
8.4(d)
a violation of Rule
prejudicial
conduct
to the
Id. at
385,
justice.”
administration of
When we have found a
non-criminal conduct
prejudice
justice,
the administration of
lawyer’s
conduct
generally concerned his or
legal practice
her own
or relation-
ship
clients,15
with his or her
but this has not always been the
judice,
the case sub
case.16 In
respondent’s patent
prac-
law
and his
appear
tice
clients
be unaffected
private actions, whether
those actions are criminal or other-
wise, in reference to his son’s criminal plight. Taking a broad
view of the situation
that,
allows us to see that
it is clear
although respondent’s
interference with Detective Hamill’s
Attorney
15. See
Goldsborough,
Grievance Comm’n v.
330 Md.
(1993)
8.4(d)
(finding
A.2d 503
a violation
lawyer
of Rule
where the
had
punished
I,
by spanking);
clients
co-workers
but see Childress
(Where
Raker,
court,
360 Md. at
Judge
By assisting his son progression with the natural essentially interfered Hamill of system. Instead Detective justice criminal son, turning the respondent’s of investigation a full completing County Attorney’s Office Montgomery State’s case over and, ultimately if prosecuted, prosecution for consideration of peers son’s decide Samuel having jury fate, effectively usurped the role Sheinbein’s it with his own Maryland citizens and substituted twelve it for the Respondent impossible made paternal instincts. may believed jury peers A of his have justice system to work. have might acted in self defense and that Samuel Sheinbein consequence of guilty. As a direct rendered a verdict of how the respondent, will never know the actions of the we Samuel justice system criminal would have treated inappropriate. This is Sheinbein. higher standard of long lawyers
This has held Court Grievance average Attorney than citizen. See conduct (1989). Alison, A.2d 660 Comm’n v. 317 Md. Alison, we stated: Bar, lawyer agrees
“Upon accepts admission to the significantly to be bound rules of conduct more demand- than mem- ing requirements applicable of law other society. bers of As the Preamble to the Rules of Profes- sional Conduct states: clients, lawyer representative
‘A is a an officer of the legal system public having special responsi- and a citizen bility justice. for quality lawyer’s requirements
‘A conduct should conform to the law, professional and in both service clients lawyer’s personal lawyer business and affairs. A procedures only legitimate pur- should law’s use the lawyer A poses and not to harass or intimidate others. *25 254 respect legal system
should demonstrate
for the
and for
it, including
those who serve
judges,
lawyers
other
and
”
public officials.’
Alison,
Id. at
535,
III. Sanction factors to be behind and the purposes enumerated We Attorney Grievance sanсtioning process in our considered we stated: v. Clark when Comm’n sanctions is purpose of the is mindful that the “This Court engaging from lawyers other public, deter protect Conduct, of Professional Maryland Rules in violations of the profession. See integrity legal to maintain the Hess, Md. v. 352 Maryland Comm’n Attorney Grievance (1999) 905, 438, 453, Attorney Griev (quoting A.2d 913 722 Webster, 662, 678, Md. v. 348 Maryland ance Comm’n of (1998)). 1135, that 1143 have stated ‘[t]he 705 A.2d We imposed that are when sanctions are public protected gravity of the violations with the nature commensurate they Attorney which committed.’ intent with were Awuah, 420, 346 v. Md. Maryland Grievance Comm’n of (1997). Therefore, 435, 446, appropriate 697 A.2d 454 of each depends upon sanction the facts and circumstances case, any mitigating including consideration of particular v. Attorney Maryland factors. Grievance Comm’n See 1086, (2000); Atkinson, 646, 656, Md. 745 A.2d 1092 357 Gavin, v. 350 Attorney Grievance Comm’n of (1998).” 193, 176, 197-98, 204 Md. 711 A.2d addition, Clark, 183-84, at 363 at 767 A.2d we Md. public “[ijmposing protects a sanction have stated legal it to members of the ‘because demonstrates interest ” type of conduct which will not be tolerated.’ profession 56, 96, v. 359 Md. 753 Attorney Mooney, Grievance Comm’n (2000) 17, Comm’n v. (quoting Attorney A.2d Grievance (1998)) (citation 856, Ober, 631-32, 616, 350 Md. omitted). any
This Court is not aware of
existing Maryland case
directly
upon
appropriate
bears
sanction for conduct
bar,
such as that in
the case
in that
present
the facts here
impression
However,
are of first
for this Court.
a few in
stances where this Court held that disbarment was appropri
provide
ate
guidance.
some
consistently
We have
disbarred
attorneys for
misappropriation
money.
See Attorney
Vanderlinde,
Grievance
v.
Comm’n
364 Md.
“The March 1994 without her client. ing on *28 Never- granted. was for a week continuance request one concerning theless, testify to court allowed the husband the argued against respondent temporary orders. The was that the child in orders and stated change the interim judge ques- trial doing in his own home. When well client, respon- whereabouts of her tioned her as to the to answer because replied that she was unable dent imme- ordered an attorney-client The court then privilege. husband, change custody diate aswell continued payments.... support
“A permanent hearing orders in held March 1995. The -wife respondent explained testified had ‘the her, underground’ to had in emptying assisted her bank accounts, and had advised being her how to avoid caught.... 1.2(d) (a
“The conduct violated R.P.C. law- yer ‘shall not engage, client, counsel client to in assist a lawyer fraudulent’); conduct that the knows is criminal or 3.3(a)(2) (a lawyer R.P.C. shall not knowingly fail to disclose a material fact to a tribunal necessary when disclosure is to assisting client); avoid criminal by or fraudulent act 8.4(b) (it professional lawyer R.P.C. is misconduct for a commit a criminal act aiding lawyer’s client crime); 8.4(c) (it commit a and R.P.C. is professional mis- lawyer engage conduct for a involving conduct dishon- fraud, esty, misrepresentation).” deceit or (alterations added). Id. at 829-31 Chappell While involved a respondent who was convicted of a arising crime out of her conduct and misrepresentations made affirmative to a tribu- nal, underlying conduct of the case at bar essentially respondent, the same. Chappell Like Ms. con- ceived for jurisdiction, the idea another to flee the initiated the plan affirmatively fugitive obtaining assisted the her goal remaining Chappell undetected. Ms. informed her feasibility Colorado, client of the of fleeing financially assisted departure helped her arrangements with places for for Here, stay. her client to essentially did the same thing. up. He came plan, brought pass- Samuel his pоrt, bought him an airline ticket to Israel and contacted cousin aup place there set to stay. Samuel He also subsequently Israel, placing fled to beyond easy himself reach of authorities. Webb, find support
We further in the of In case re 602 P.2d arising Alaska, a case out of Supreme Court of
259 attorney for his conviction that court disbarred where police to fact to Mr. Webb lied accessory after the murder. murderers, knowledge with aided the occasions and on several might or crime, they avoid “with intent their State, trial, 580 arrest, or Webb from conviction.” escape his actions were the at 304. Mr. asserted that P.2d Webb duress, murderers threat- as he claimed the direct result accessory after the convicted him for jury his life. The ened court later said: appellate fact and the and, if probably will be disbarred “It is true that Webb so, practice of law. engage no able to in the longer will be legal upon profession. dishonor brought great He has conduct, dishonesty, de- employing criminal conscious His greater than if it were committed serves condemnation high adhere to standards of honor and obligated one not integrity.” (footnote omitted). action, in subsequent disciplinary The
Id.
turn,
for his actions in
resulted in the disbarment of Mr. Webb
Webb, 602
410.
assisting
escape justice.
felons
In re
P.2d at
(1997),
34,
549
In In re
325 Or.
932 P.2d
Garvey,
lawyer
Oregon
engaged
Supreme Court of
disbarred
conduct, holding
prejudi-
that the conduct was
serious criminal
justice.
claims of
to the administration of
While several
cial
misconduct,
of his
including negligence
respect
several
clients,
Garvey, the
found
alleged against
were
Mr.
court
Mr.
appropriate
only
have been
even if
disbarment would
considered, as
Garvey’s
“Oregon lawyers
criminal conduct was
misconduct
engaged
who have
serious criminal
have been
disbarred,
of a
they
have been convicted
whether
Id.
Id. at
Respondent argues that presents his situation “extenuating circumstances” that led to his abhorrent behavior. He focuses timing of the situation that precluded and it “mature ‘proper’ reflection as to a course of action.” This argument neglects to mention the respondent time care in showed devising escape route for his thought son. He enough bring advance to his son’s passport from to New City York contemplation of his son’s need leave the country. Respondent suggests also “cooperated” he by turning oyer authorities information and evidence police, such as car his son and Needle drove to New contents, York and its which shotgun, included a stun gun, young letters written the two alleged men. This “assist- ing” of Detective Hamill’s investigation only occurred after respondent had encouraged and assisted his beyond son to flee prejudice to the Maryland’s jurisdiction. the reach justice already had occurred. administration states, law from our sister precedent, own court’s case Our unique and the Bar Counsel’s recommendation disbarment presented by respondent’s ut- egregious factual scenario proper conduct the face of professional ter abandonment of of Mr. Tello’s murder leads this Court the circumstances fit to longer is no only one conclusion: practice law. passing this moral or criminal
This is not case of Court son, youngest trying protect on a father for judgment surrogate for a crime where punishing nor is it the Court fact, Maryland’s law. In escaped accused has the reach of juris- currently beyond is the reach of the state’s merely process by protects It which this Court diction. attorneys fly actions in the face of their public from whose obligations public profession. and to their own legal *31 respondent. We shall disbar ORDERED; PAY
IT RESPONDENT SHALL IS SO BY OF THIS ALL AS TAXED THE CLERK COSTS THE ALL TRAN- INCLUDING COSTS OF COURT 16-715(c), MARYLAND RULE SCRIPTS PURSUANT TO IN FA- JUDGMENT IS ENTERED FOR WHICH SUM THE VOR OF ATTORNEY GRIEVANCE COMMISSION MARYLAND OF AGAINST SOL SHEINBEIN. ELDRIDGE, J., RAKER,
Dissenting Opinion by which J., joins. majority today presented holds that Bar Counsel suffi-
The facts to that committed the cient establish that, hindering police and obstructing crime of or officer 8.4(b).1 therefore, majority his conduct violated MRPC (MRPC) 8.4(b) Maryland provides Rule of Professional Conduct that: “Respondent’s inappropriate states that conduct stems from sending knowledge his son to Israel with the that Samuel [his Furthermore, had in Maryland.” son] committed homicide majority respondent’s also finds appall- actions to be “so ing” “egregious” that his prejudicial conduct is 8.4(d).2 fact, justice administration of violation MRPC language majority the extreme opinion might tone lead reader to conclude that the who the one Despite committed the majority’s homicide. characteriza- conduct, tions I do not believe his conduct, separately when underlying viewed from the crime son, by committed constitutes by misconduct a criminal act 8.4(b) under prejudicial MRPC conduct to the administra- 8.4(d). justice tion of under MRPC
I. As majority, quoting stated from Attorney Grievance Gavin, 176, 189, (1998), Comm’n v. 350 Md. “ Rules, under the original Court has ‘[t]his complete jurisdiction attorney disciplinary proceed- over ”3 ings.’ independent record, In our review of the must we professional lawyer
“It is misconduct for a to: (b) adversely lawyer’s commit a criminal act that reflects on the honesty, lawyer respects;” trustworthiness or fitness as a in other 8.4(d) provides: 2. MRPC Rule professional lawyer
"It is
misconduct for a
to:
*32
justice.”
(d) engage in conduct
[*]
[*]
prejudicial
[*]
to the administration
promulgated by
purport
give
original
The rules
Court
this
to
us
cases,
jurisdiction
adjudicatory attorney
over
disciplinary
contested
and
regularly
jurisdiction,
entering
we have
exercised such trial court
money judgments
equitable
prior
and
decrees when there were no
judgments
by
or decrees
a court.
however,
Maryland,
gives
original
Constitution of
this Court
situations,
II,
6,
jurisdiction
only
§
two
set
forth
Article
and
III, §
provision encompasses attorney
Article
5. Neither
disciplinary
situations,
Except
cases.
for those two
uniformly
the cases have
held
Judge
hearing judge,
findings
determine whether
Under
Pincus,
upon
convincing
and
evidence.
are based
clear
circumstances,
“hearing
findings
court’s
of fact are
ordinary
they
disturbed unless
are
and will
be
prima facie
correct
Grievance Comm’n
Attorney
clearly
to
erroneous.”
shown
be
(1997).
Garland,
383, 392,
692 A.2d
Such
v.
345 Md.
hearing judge is
the best
because
paid
“[t]he
deference
and to
credibility of the witnesses
position to evaluate the
...
and choose which
pick
decide which one
believe
v. Mon
rely upon.” Attorney
Grievance Comm’n
evidence
(2002).
373, 390,
Usually, it is
794 A.2d
fried,
368 Md.
to evaluate all
uniquely positioned
who is
hearing judge
including
expression
aspects
a witness’s demeanor —
countenance,
stands,
inordi
sits
whether he is
how he
or
examination,
nervous,
during critical
his coloration
nately
commu
speech
of his
and other non-verbal
pace
modulation or
observing judge
may
factors
convince
nication. These
testifying truthfully
falsely.
These
the witness is
whether
appellate jurisdiction only.
Appeals may
This
the Court of
exercise
origi-
consistently
purporting to confer
held that enactments
Court has
Special Appeals
jurisdiction
Appeals or the Court of
nal
on the Court of
36, 40-44,
Supervisor, 276 Md.
unconstitutional. Shell Oil Co. v.
are
(1975), and cases there collected.
523-525
original jurisdiction
purporting
on this Court in
The rules
to confer
attorney disciplinary
present
cases
another constitutional
contested
jurisdiction Maryland
problem relating
rules,
courts. Under those
disciplinary
judge of a circuit
petition
action is referred to a
fact,
hearing,
findings of
make conclusions of
court to hold a
make
however,
judge,
empowered
is not
to decide the
law. The circuit court
Instead,
findings
judge
and conclusions to
case.
the trial
forwards
Court),
(i.e.,
body
body
this
and that other
renders the decision.
another
Conaway,
through
Duffy
Maryland
16-752
16-759. In
v.
See
Rules
scheme,
(1983), this Court held that a similar
Md.
same are unavailable to a reader of transcript. paper supply the Cold records of this none infor- mation.
Thus, view, contrary majority’s to the the instant case does require give not us to the normal hearing deference the judge’s findings respondent’s credibility. on the Because the below, present at hearing Judge the credibility solely upon Pincus based determinations the transcript respondent’s testimony Jury the Grand such, proceedings, today. the same cold record before us As of this just capable assessing the members Court are respondent’s credibility as hearing judge, special and no Judge deference is warranted for findings concerning Pincus’s respondent’s credibility. majority principle also overlooks the that “[t]he ‘clear convincing’ standard of Rule applies [BV10 d] proof imposed upon Attorney measure of Grievance Com- mission in factual establishing determinations essential to its * * * against attorney. case It not apply does to factual sought by matters to be attorney established defense of attorney’s position.... this, preponderance As to applicable evidence standard is proof.” measure of Attor- Bakas, 603, 606, ney Grievance Comm’n v. 322 Md. 589 A.2d 52, (1991), quoting 53 v. Attorney Bailey, Grievance Comm’n 631, 644, 1261, (1979). 285 Md. 403 A.2d See also Attorney Garfield, Grievance Comm’n v. 369 Md. 99 n. (2002). Therefore, 765 n. 13 it while is incum- upon prove bent Bar charges by Counsel each of the clear evidence, and convincing only need establish facts by in his a preponderance defense of the evidence.
II. above, As alleging attorney’s discussed when that an actions by crime, constituting violate the MRPC the standard of proof Bar imposed upon prove Counsel is to each element of Attorney convincing See by clear and evidence.4 the offense Childress, 48, 55, A.2d 364 Md. Grievance Comm’n standard, (2001). presented light this evidence requisite to establish the was insufficient Bar Counsel performance Hamill *34 to hinder in the specific intent Detective Moreover, strongly I doubt investigation. of her or hindering the offense of actions constituted Instead, respon of the a effect obstructing police officer. conduct, delay a homicide most, prevent or dent’s in County in prosecution by Attorney Montgomery the State’s conviction, 24-year a and prosecution, a homicide a favor of in prison Israel. sentence 398, 1276, State, 400, A.2d in v. 297 Md. 466 noted Cover
We that, (1983), hindering police of although the crime 1277 was a statuto performance in the of the officer’s duties officer States, in many a common law offense ry it remained one Davis, 18, 32, A.2d 354 729 also DiPino v. Md. Maryland. See (1999); State, 669, 675, Md. 426 A.2d 354, Busch v. 289 361 (1876); (1981); 490, 954, 43 505 Roddy Finnegan, v. Md. 957 (1976). State, 75, 568, 82, Md.App. 32 359 A.2d 573 Howard v. scope “hindering,” “obstruc Determining the of the crime difficult, tion,” however, cases ad “interfering” is as the or any or attempt to define dressing this offense do make in these precise types circumscribe the of activities included vague terms.5 proof, convincing, said quality "The clear and has also been to be
4. ordinary the rule in civil cases and be somewhere between is, it than a requirement procedure of criminal must be more —that beyond It also preponderance but not a reasonable doubt. has mere convincing' that the been said tha1 the term ‘clear and evidence means credible, fact must the facts to witnesses to a be found to be and that they distinctly have and the details which testified are remembered order, exactly narrated in due so enable the trier of thereof as to conviction, hesitancy, truth of the facts to come to a clear without convincing precise facts in Whether evidenсe issue. is clear weighing, testing, judging when requires comparing, its worth in evi in connection all the facts and circumstances considered Harris, 376, 389, Attorney 784 dence.” Comm’n v. 366 Md. Grievance Attorney 316, (2001), Mooney, quoting A.2d Grievance Comm'n 79, (2000). 359 Md. general types what been deemed For a treatment acts have Note, hindering, Types Encompassed by Activity obstruction or see (1960). Obstructing Officer, 108 U. Penn. L.Rev. 388 Public Offense of Thus, Court, the Cover in analyzing whether the State had proven the elements of the crime obstruction or hindering a officer, police it helpful separate found conduct capable of hindering police officer into categories, moving pro- three gressively from the more direct obstructions to the more Cover, 405-406, attenuated ones. The Court 297 Md. at A.2d at (2) Obstructing quoting Freedom,?, Lidstone, [1983] Crim. L.Rev. Offence of Obstruction: stated (footnotes omitted):
“Positive direct obstruction: ‘[T]hose cases which the directly against constable acts the citizen or property physically and is resisted.’ Id. at 30.
“Passive direct obstruction: Those cases ‘in which the constable seeks to directly, make the citizen act and the citizen required.’ refuses fails to act as Id.
“Positive indirect obstruction: Those cases in which ‘the police not acting directly against are the citizen but are *35 acting indirectly against are, be, may other citizens who or about to against law, commit offences the criminal and the citizen an does act which obstructs general them their duty prevent crime, or detect intending to frustrate the police operation.’ Id.” bar,
In the at charged case the conduct at issue falls into this last category alleged attenuated hindering. indirect —an only
The respondent, actions of the forming the basis for majority’s conclusions, respondent’s “assisting] are son to by circumvent the law absconding.” Bar Counsel had alleged also that notify failure to Detective Ha- mill of his contacts with was an hindering Samuel omission Detective Hamill in performance of her duties. This notion disposed by can be of noting that when these actions transpired, it undisputed had not been notified that an arrest warrant had issued for Samuel Shein- bein. Detective Hamill that respondent’s testified attorney, Stein, Paul T. was informed of day the arrest warrant after Samuel went to issued, Israel. Until an arrest warrant legal there was no duty imposed upon
267 his son’s contacts whereabouts. Hamill of Detective inform basis of the second such, this omission cannot be As cases hindering. or of obstruction charge element resulting from an omission hindering or obstruction finding an clearly distinguish are instructions police to follow or failure an offi refusal follow typically involve These cases able. See, v. disperse. e.g., City Chicago or order move cer’s of denied, (1969), cert. 397 1, N.E.2d Ill.2d 253 400 44 Meyer, (1970); 1262, 1024, City 25 534 L.Ed.2d 90 S.Ct. U.S. (1970), 205, cert. Ill.2d 265 N.E.2d Lynd, v. Chicago (1971). denied, 28 L.Ed.2d 402 U.S. S.Ct. hinder- review of the obstruction or comprehensive After State, cases, 297 Md. at supra, this in Cover ing Court offense: the elements articulated “(1) engaged performance in the police A officer duty;
“(2) act, omission, by An an which perhaps or accused performance or in the obstructs hinders the officer duty;
“(3) facts ele- Knowledge by comprising the accused of (1); and ment
“(4) or act or Intent to obstruct hinder the officer (2).” constituting omission element Furthermore, acknowledged that it is often difficult to we obstructing what or determine acts omissions constitute duty. hindering performance Ibid. officer’s *36 challenge the establishment of the The does offense, namely first and third of the that Detective elements of police engaged performance Hamill was officer in the her knowledge and that had of her involvement duties Nevertheless, in the matter. Bar failed to establish Counsel element, i.e., an act or the second or omission that obstructs element, hinders, i.e., specific to and the fourth intent hinder obstruct.
A. against underlying presented The case son situation different sovereigns jurisdiction where two had to prosecute Samuel Sheinbein his involvement the homic question, jurisdic ide.6 Without the State of had prosecute tion to territoriality. Samuel based on this Under concept, Maryland plenary power had to make its substantive any applicable person laws to or occurrence within its territo plenary power rial boundaries and to its enforce laws within however, its Additionally, territorial boundaries. of the State jurisdiction prosecute Israel to Samuel based on his had jurisdiction Israeli As a nationality.7 basis for the to pre scribe, nationality principle historically na referred to a citizens, tion’s authority to control the conduct of its no matter See Restatement (Third) place. where that took conduct 402(2) States, (1987). Foreign § Law of the Relations United jurisdiction 6. types prosecute A state needs in order two to jurisdiction prescribe jurisdiction individual: to to enforce. See States, (Third) Foreign pt. Restatement Relations Law United (1987). introductory prescribe authority IV note Jurisdiction to is “the applicable particular of a state to substantive persons make its laws authority circumstances.” Ibid. Jurisdiction to enforce is the of a compel compliance state to "to use its resources induce or its discussion, thorough Barry Philip Ibid. law[s]”. For a see E. Carter & Trimble, (3d ed.1999). R. (Third) Law International 712-801 See Rest. also Law, Foreign supra, § Relations 401. Law, principles Customary nationality International ob Under ways. nationality tained in different Jus Soli to laws that refers confer territory. Sanguinis because of birth in a state's Jus refers to laws that nationality parents accord based birth to who are nationals of 25, 1999, Supreme February State. On the Israeli Court held that Samuel not be Sheinbein could extradited to the United States. This ruling passage was based on of a 1978 amendment to Israel’s prohibiting Extradition Law extradition for offenses committed after an nationality. individual has obtained Israeli This decision led to Samuel premeditated September Sheinbein's ultimate conviction for murder on 2, 1999, Court, sentencing the Tel Aviv District on October twenty-four years prison, longest imposed sentence ever Doctrine, juvenile history. on a in Israeli Under the Act of State this liberty inquire validity Court is not at into the of the Israeli courts' holdings. rulings jurisdiction prosecute that Israel had binding upon generally homicide are us. See Banco Nacional de Cuba Sabbatino, (1964). 376 U.S. S.Ct. L.Ed.2d 804
269 2, States, 421, n. 52 284 U.S. also Blackmer United See (1932). 375, 382 n. n. 76 L.Ed. S.Ct. arises, two in a where inevitably situation
Thus,
question
offense, whether
particular
a
jurisdiction over
sovereigns have
client or
his or her
who has counseled
attorney
parent,
or
has
penalty,
with the lesser
jurisdiction
to
proceed
child to
question
to this
The аnswer
any misconduct?
committed
jurisdiction,
in
wheth-
custody
to
one
“No.”
clearly
Submission
advice,
advice,
parent’s
or a
attorney’s
of an
er the result
Attorney
choice,
by the
or a decision
uncounseled
the client’s
jurisdic-
in
other
General,
prosecution
necessarily hinders
Hence,
assuming arguendo
tion.
even
for
opting
intent of
specific
son to Israel with the
had sent his
Maryland,
the action
prosecution
prosecution
Israel’s
over
sum,
“devising and facilitat-
is not criminal.
Israel,”
language
to
ing
departure
his son’s
bring
within the ambit of the
majority
does not
him
opinion,
hindering.
of obstruction or
offense
to
Indeed,
sovereign
jurisdiction
than
has
when more
one
homicide,
appears
entirely
it
to
prosecute
person
for
be
prosecution
for
side to send the
appropriate
those
sovereign likely
impose
to
the most
alleged perpetrator to the
punishment.8 According
majority opinion,
to the
how-
severe
ever,
to send
appropriate
it is not
for those on the defense side
likely
impose
alleged perpetrator
sovereign
less
forum-shop
for
punishment.
prosecutors
If
are free
severe
capital
jurisdiction
penalties,
or a broader
more severe
statute,
punishment
choosing
prosecute
when
where
accused,
sending
punished
not be
for
the defense should
penalties.
maximum
jurisdiction
to a
with less severe
accused
White, Sniper Suspects
to Va.
8. See Susan Schmidt and Josh
Handed
Trials,
Al,
reporting
the decision to
Wash
Nov.
Post.
sniper suspects
Lee Malvo
prosecute
John Allen Muhammad
John
jurisdictions
Virginia
Maryland was "based on which
had
instead of
law,
range
penalties."
and the best
of available
the best
the best facts
omitted).
(Internal quotations
It would
a different
if
any
be
case
there were
evidence in
the record that
had either tried to evade
prosecution in Israel or had
country
sent his son to a
with no
jurisdiction
prosecute
the homicide.9 But that is not the
*38
only
case
us. Not
respondent dispatch
before
did the
his
son, Robert,
bring
older
to
Samuel back to
to face
Israel,
charges, but once
Samuel arrived
there was no
authorities,
attempt
to hide him from the Israeli
or to send
him out
any
of Israel to
number of neighboring countries.
It
only
days
was
a matter of
police
before the Israeli
took
Samuel,
custody of
unobstructed and unhindered.10
Additionally,
majority
the
respondent’s
claims
con-
duct
Hamill any opportunity
pursue
“denied Detective
Yet,
investigatory leads.”
respondent
allowed Detective
Hamill to
cooper-
execute the search warrant at his
home
with
by providing
ated
her
with
her
Samuel’s credit card
number, as
son’s
phone
light
well
his
cellular
number.
facts,
only
of these
other “investigatory leads” for Detec-
Hamill
cull
tive
would result from questioning Samuel.
points
First,
Two
should be made with regard to this.
even
if
respondent
had contacted
upon
Detective Hamill
hear-
that,
respondent's
Jury testimony
9. The
Grand
reveals
when he sent his
back,
bring
pleaded
son Robert to Israel to
Samuel
Samuel
with his
father,
you
country
they
send me to a
"[c]an’t
where
can’t catch me?
you
Libya, Iraq?”
respondent’s
Jury
Can’t
send me to
See
Grand
Testimony at 72. There
no
plan
is
evidence that such a
was ever
Nonetheless,
contemplated by
respondent.
majority opinion
written as if the
did
place
send Samuel to a
where he could
prosecuted.
not be
Compare
against
this
hippie guru
case
the homicide case
former
case,
Ira Einhorn.
In that
the defendant fled the United States on the
aliases,
Philadelphia,
Using
eve of his trial in
in 1981.
different
he
successfully
years
Europe
being
evaded detection for sixteen
before
arrested
France in 1997. He was returned to the United States in
July
only
prosecutors agreed
but
after
request
to a French
not to
penalty
seek the death
first-degree
and to have his 1993
murder
special legislation passed by
conviction in absentia vacated means of
Pennsylvania Legislature.
legal saga
ended with his conviction
Jacqueline
on October
Soteropolous,
Flops
Jury,
2002. See
Ira
With
18, 2002, A1;
Odom,
Oct.
at
Maida Cassandra
Einhorn
Inquirer,
Phila.
"Looking
Testifying,
Globe, Sept.
Forward." To
2002 at A11.
Boston
question-
any attempt
son,
the likelihood
from his
ing
is remote.
investigatory leads
have elicited
would
ing Samuel
testify under the
witness,
compelled
can be
who
Unlike
his constitu-
to invoke
was free
contempt,
Samuel
sanction
self-incrimination,
likely would
against
privilege
tional
family
prior
had
have,
done
as his entire
of Fact and
See
Jury.
Findings
before
Grand
testifying
likely since
especially
6. This is
of Law at
Conclusions
attorney, Paul
retained
reflects that
record
warrant
Stein,
morning after the search
for his son the
T.
States,
Massiah United
377 U.S.
Under
executed.
(1964),
opportunity
if the
1199,
B.
necessary
Another
element of
hindering
obstruction or
police officer is the
to obstruct or
“[i]ntent
hinder the officer
by the act or
constituting
omission
[the second] element.”
State,
413,
supra,
Here,
Cover v.
“ ‘[S]pecific simply intent is not the intent to do the immedi- ate act but requirement embraces the mind be conscious of a purpose more remote or design which shall eventuate from doing Though the immediate act. implies only general assault blow, intent to strike the murder, rob, assault with intent to rape or maim requires a fully formed and purpose conscious that those further con- ” sequences shall flow from doing of the immediate act.’ (Additional omitted). quotation marks Thus, case, in this the mere act of sending Samuel Israel enough. shown, alone is not It must be clear and convinc- evidence, ing sent Samuel to Israel with purpose the conscious frustrating Detective Hamill’s inves- tigation. Jury testimony Grand discloses that his (a)
actual intent in sending Samuel to prevent Israel was *40 (b) suicide; him committing from to distance his son from the Needle; (c) influence of Aaron to possibility avert the of a violent confrontation with police. the testimony His also implored reveals that he his son to Maryland surrender to the police but that Samuel was adamant in his refusal to do so. Moreover, the respondent further testified before the Grand Jury that, upon being apprised of the issuance of an arrest warrant, son, Robert, he sent his eldest to Israel to collect to face the authori- bring him back Samuel them- presented that of factors the confluence ties. Given time, claims period of relatively in a short selves stated, “I took then tor reflection. He had little time that he nothing his else worked.” in the event passport with me 66-67. Jury Testimony at Respondent’s Grand Jury Grand testi- reading respondent’s Rased on his testimony of the that hearing judge found mony, the judge The relied was not credible. respondent’s actual intent person “a intends presumption that oft-quoted on the Thus, the of his acts. probable consequences natural from may be inferred the defendants’ criminal intent requisite an act which is forbid- knowing commission of voluntary and an act omission to do by or from the defendant’s den law however, earlier, respon- by explained law.” As required by nor did he omit an act law did not commit forbidden dent ultimаte Additionally, law. Israel’s required by an act do conse- probable a natural nor was neither refusal extradite Finally, sending his son there. respondent’s quence transcript from only could look to the hearing judge since the finding respect his Jury, the Grand credibility any special deference. is not entitled is re- record majority “[t]he nevertheless states finding that hearing judge’s supporting with facts” plete testifying before the Grand not credible respondent was majori- things, the Among intent. other Jury about his actual comments made ty separate claims that two credibility. Jury testimony undermine during his Grand exchange (respondent’s First, majority following cites 69.): Jury Testimony at Grand Okay. Sunday night, obvious-
“Q[uestion prosecutor] Now did to Israel. When up go for Samuel to ly, trip set go to Robert Israel? Okay. Monday, we decided respondent] On
A[nswer Sunday, was no arrest warrant was no—on there there whatsoever; Samuel, not a that he was none whatsoever *41 person, fugitive. wanted he was not a He was not on the officially by run police— the Q Right. be;
A—but he would that’s obvious.” exchange, the-majority From this that respondent asserts the “plainly that his son “obviously” admitted” he knew would be Yet, on the run from an arrest phrase warrant. the “but he be; would that’s susceptible interpreta- obvious” is to various obvious, may just tions. It that it in hindsight, mean was that by police. phrase his son would be wanted the This equivocal hardly enough is clearly to meet Bar Counsel’s burden to convincingly prove respondent that the intended hinder investigation. Detective Hamill’s The second bit of testimony by majority, relied on the support hearing judge’s finding respondent’s on the credibility, relates to purchase of Samuel’s airline ticket. to a response question voyage about how was Samuel’s financed, stated, respondent “I went to Tower Air in New ticket, City, purchased well, York and I one-way ticket — a round-trip cheaper one-way ticket is than a Tower Air.” —on Respondent’s Jury Testimony Grand at 67. majority respondent’s declares this statement alone discredits the argument purchased round-trip that he in contempla- ticket tion of Samuel’s return. But this if point. misses the Even respondent’s purchase a round-trip ticket was based differential, solely price this does not demonstrate convincing clear and evidence did not contemplate his son’s return once the had immediate crisis Indeed, developed days diffused. the facts that in the immedi- ately following departure majority’s Samuel’s refute the theo- ry. son, Robert, It undisputed that the sent his bring to Israel to country. Samuel back this The obstacle to Samuel’s return was not the want of a return ticket.
Next, that, majority argues because Samuel was alone family when he met with his York City, New he no longer danger being imminent under Aaron Needle’s Yet, unwanted Jury influence. Grand testi- Needle, history distrust toward Mr. mony long reveals by the no and exacerbated which was doubt resurrected Moreover, aware respondent was present circumstances. Needle; York Mr. son had driven New that his *42 present not at the although Mr. was consequently, Needle Thus, I very away. far family meeting, probably was not he upon respon- the any casting to discern doubt fail evidence distance credibility that he wanted to when he claimed dent’s from Mr. his son Needle. “apparent that there was no
Finally, majority the contends pres- in the danger committing suicide” [Samuel] imminent true, especially is family his in New York. This ence of shotgun majority argues, Samuel had surrendered the because cir- family’s arrival. respondent upon Under cumstances, however, was it is that the reasonable his life. The concerned that his son would take own truly in a that had been involved respondent was well aware his son homicide, self-defense, that or not in grisly whether that thinking clearly this time. fact was Samuel only possession shotgun no in longer was Samuel killing long So as Samuel eliminated one means of himself. thoughts, it is that the expressing still suicidal credible was father, as was over respondent, possibility distressed in I am also mindful hindsight, his son’s suicide. Albeit Needle, expressed suicidal fact that Mr. who had likewise York, hanged April ultimately himself inclinations New 18, 1998, was in his days jury begin two before selection trial. convincing must evidence affirmative,
There be clear hinder a officer. respondent’s specific police intent is, testimony if is to his intent That even credible, legal supplant this conclusion cannot not deemed evidence, convincing that showing, by clear and affirmative to his regard sрecific Bar must with intent. Counsel establish credibility, principle It law lack of is well-settled more, without is not affirmative sufficient ipso evidence facto proponent’s burden of on an element proof to meet intent See, charge. Corp. Corp., Wrexham Aviation e.g., VF (1998) (The Md. 715 A.2d finder of fact’s “prerogative however, not to believe testimony, certain does not constitute affirmative contrary”); evidence of the Attorney Clements, Grievance 289, 298, Comm’n v. 319 Md. (1990) (“A 174, 179 refusal to believe evidence of a respondent, however, not, itself, supply does affirmative evidence of the ... charged”). [misconduct]
Furthermore, on the basis of the Grand Jury testimony, the hearing judge had little basis for determining whether the telling truth. The record is not so much “replete” with supporting facts a finding of non-credibility, as it replete testimony cold-record susceptible of various Therefore, interpretations. I conclude Bar did Counsel not present clear and convincing of a specific evidence intent hinder obstruct Detective Hamilfs investigation. sum, Bar Counsel did not provide proof, by clear and *43 evidence, convincing that respondent committed the common law offense of obstruction or hindering police a officer. I do not agree attorney that an or father has criminally obstructed or police activity hindered in the case where two jurisdictions authority prosecute offense, have the attorney and the client, advises his or the son, father advises his go to the jurisdiction Moreover, the less severe sanction. when the only “hindering” is to questioning frustrate the of one who has crime, been accused of and who is certain to invoke the privilege against self-incrimination, I do not believe that the offense of hindering has occurred. Nor do I believe that Bar proved, by evidence, Counsel convincing clear and that-the requisite had the to hinder Detective Hamill intent in the course of her Consequently, duties. no misconduct act, criminal 8.4(b), contravention of MRPC is present this case.
III. majority The also concludes that violated 8.4(d) by engaging MRPC in conduct that is prejudicial to justice. administration of Generally, this Court has found
277
8.4(d)
in violation of
under two circum-
conduct
to be
Rule
First,
criminal in
has been conduct that is
stances:
when there
nature,
second,
lawyer’s conduct concerned his
or
when the
This
relationship
or his
with his clients.12
legal practice
own
8.4(d)
survey
alleging
predeces-
12. A
of cases
a violation of Rule
its
sor,
1-102(A)(5),
past
years,
brought before
Court in the
ten
DR
this
that, during
period,
attorney
found in violation
reveals
no
has been
8.4(d)
of Rule
unless his conduct was either criminal or involved his
legal practice or clients.
8.4(d)
respon
following
a violation of
cases found
due
Childress,
Attorney
being
conduct
criminal:
Grievance Comm'n v.
dent's
48,
Internet);
(2001) (pursuing
364 Md.
Richardson, (1998) (filing 350 Md. A.2d frivolous and against judges against previous malicious lawsuit who had ruled him in *45 in forth the Comments guidance set with the consonant Conduct (Model Rules of Rules of Professional ABA Model added)): (2002) (emphasis cmt. 2 R. 8.4 Prof’l Conduct on fitness to adversely illegal conduct reflect kinds of “Many answera- Although lawyer personally practice law.... law, profession- lawyer should be criminal the entire ble to lack of those that indicate only for offenses ally answerable involving to law Offenses practice. relevant characteristics trust, interference violence, of or serious dishonesty, breach category.” in that justice of are the administration hearing judge’s conclu- majority opinion, the in the As noted respon- were based on assessment point on this sions nature, first fitting within the criminal in conduct was dent’s of finding In a violation above. of cases mentioned prong Respon- 8.4(d), hearing judge that “[t]he determined Rule justice by of hindered administration indisputably dent country.” Findings his son to flee the providing a means for Thus, his conclusion as of Law at of Fact and Conclusions 8.4(d) that all the pronouncements on his earlier to Rule relied were hindering police of officer of the offense elements in present this case. addition, Disciplinary Action Bar Petition for Counsel’s allegation that charges of misconduct on the
bases both
of
assisting
in
his son to leave the State
respondent’s “actions
impe-
in
subsequently
country, was
direct
Maryland, and
investigation
of
of
murder of
dance and obstruction
Tello,
law and the
Enrique
Alfred
Jr.
violation
governing the actions of attor-
of Professional Conduct
Rules
420,
actions);
McCoy,
Attorney
Md.
Grievance Comm’n v.
client);
(1998)
Attorney
representation
(inadequate
Grievance
Milliken,
486,
(1998) (gross neglect
v.
348 Md.
The
claims that
the
acts
8.4(d)
first,
separate
violate
on two
grounds:
Rule
under the
and, second,
theory that his acts
criminal
were
under an
that
theory
“directly
alternative
his acts were
harmful to the
doubt,
legal profession.”
disagree.
I
I
In re Ruffalo,
under
(1968),
88 S.Ct.
A.
threshold,
8.4(d)
majority’s opinion
At the
the
as to the
charge
questionable
is
In re
Ruffalo, supra.
under
Ruf
falo,
petitioner
lawyer
the
was a trial
charged
who was
counts
incriminating
twelve
of misconduct. As a result of
during
hearing
testimonial evidence adduced
before a
board,
hearing
grievance
the state’s
commission
a thir
added
charge against
petitioner.
hearing
teenth
board
petitioner guilty
found
charges,
including
seven
review,
appended
charge.
thirteenth
On
Supreme
Ohio
only
Court held
the evidence was sufficient to sustain
two
charges, including
charge,
ultimately
the thirteenth
con
required.
cluded that disbarment was
Proceedings thereafter
to disbar
petitioner
ensued
the United States Court of
Appeals
Circuit,
relying
the Sixth Circuit. The Sixth
courts,
held
findings of the Ohio
the record
solely on
in its court.
justified disbarment
charge alone
thirteenth
peti
that the
Court, concluding
Supreme
States
The United
reversed,
process,
due
deprived
procedural
tioner
imposed
penalty
a punishment
...
is
“Disbarment
stating:
* * *
procedural
accordingly entitled
He is
lawyer.
on the
Ruffalo,
charge.”
notice of
includes fair
which
process,
due
at
20 L.Ed.2d
at
88 S.Ct.
90 U.S.
3
that fair
require
holds,
process
of due
principles
As Ruffalo
at the outset
given to a defendant
charges be
notice of the
that,
Here,
even
majority states
proceedings.
disciplinary
criminal,
prejudicial
it is still
question
if
conduct
8.4(d).
of Rule
justice in violation
to the administration
appall-
actions are so
“respondent’s
majority,
According
fit;
both
respondent’s acts are
will
that either shoe
ing
profes-
legal
directly
harmful
in nature
criminal
upon a
majority opinion relies
that the
sion.” To
extent
*47
8.4(d)
alleged
was neither
finding an
violation which
basis for
upon by the
Disciplinary Action nor relied
in
Petition for
the
infirmity
process
due
judge,
presents
procedural
it
a
hearing
case,
the
holding in
this
contravention to the
Ruffalo.
such a basis for the
given notice of
respondent was never
8.4(d)
8.4(d)
against an
to defend
charge
opportunity
nor an
legal
harmful to the
being “directly
acts
violation based on his
stated,
disbarment
As the Court
profession.”
Ruffalo
quasi-criminal
of a
“adversary proceedings
are
proceedings
* * *
proceed-
known
the
charge must be
before
nature.
The
at
20 L.Ed.2d
88 S.Ct.
ings commence.”
U.S.
that,
basis
when a court devises new
at 122. It seems clear
quasi-criminal proceed-
charge at
hour of
for a
the eleventh
here,
has
respondent
the
been
majority
as the
has done
ing,
process.
of
deprived
procedural due
charged
respondent has been
by
majority,
As noted
v. Sol
Charges
Maryland
in State
in a
of
Statement
of
Sheinbein,
County,
Maryland, Montgomery
District Court of
6D00071133,
hindering
criminal offense
No.
Case
charging
An
on
document
arrest warrant
police officer.
Sheinbein, District Court
in that
for
has
issued
case
Sol
been
of Maryland, Warrant No.
Respondent,
D98442735.
as a
State,
Bar of
member
this
is an officer of this Court.
It
conduct,
may
be that the
in failing to present
himself for trial and perhaps
prosecution
willful
avoidance
charge,
this
criminal
would constitute a violation
8.4(d)
prejudicial
Rule
as conduct
to the administration of
justice.
Iowa Supreme
See
Ct. Bd.
'lEthics & Conduct
of Prof
(Iowa 2001)
v. Mulford,
B. 8.4(d) In support argument for its that Rule has been violated, majority cites an Alaskan case which an attorney was having disbarred after been convicted certain criminal offenses. majority then remarks that in our case, cannot be tried for obstruction or hinder- ing because he remains in majority’s Israel. The reliance on the Alaskan case assumes would be convicted. Since the evidence was insufficient to find that the respondent committed the offense of obstruction or hindering by evidence, and convincing clear the case relied on 8.4(d) majority no support finding furnishes for a of an viola- tion.
Next, majority claims that it “has always been the *48 8.4(d) case” that conduct violating Rule must relate to the lawyer’s particular clients, practice or quoting following the statement in Attorney Richardson, Grievance v. Comm’n 350 354, 368, (1998): Md. 532 respondent argues
“The that to be conduct that preju- is dicial to the of justice, administration act the must be one that hinders or judicial otherwise interferes with a proceed- ing party of which is a represents party. he or This Court
283 8.4(d). We have instead defined Rule narrowly so has never image on the or the impacts that that conduct recognized Attorney profession, or the see legal courts the perception Alison, 523, 536, A.2d 317 565 v. Md. Comm’n Griev. and (1989) for courts engenders disrespect the and that may the adminis- legal prejudicial be profession justice.” tration scope on this comment broaden majority capitalizes 8.4(d) any perceptible bounds. beyond
of Rule Alison, 317 Md. Attorney Comm’n Grievance majority and (1989), on in A.2d 660 relied Richardson epithets during here, lawyer who hurled we dealt with dangerous conduct and whose “irrational judicial proceedings 532, 565 years.” of two 317 Md. at persisted period over a Mr. question A.2d at 664. was no Alison’s resis- There court, search, language to a court foul in tance ordered clerks, things, “impact[edj other among verbal abuse court image legal profes- courts or the perception on the Richardson, at 532. Md. at A.2d supra, sion.” personnel and court Mr. Alison’s conduct toward the court legal and on obviously impacted practice on his his clients. Furthermore, Thus, it oftentimes criminal.13 this Court holding publicly conduct difficulty had no he legal disrespect for courts for the displayed bred profession. view,
Here, majority’s respondent “usurped in the his supplanted of twelve it with role citizens” Additionally, majority claims that the instincts. paternal “impossible justice system to it for the made work,” his son everything power and “did ensure that concludes, result, majority As a system.” circumvent that see, respondent suggests, respon- difficult to how “ti]t ongoing police investigation blatant interference dent’s The conduct with which this Court was concerned with Alison conduct, roots in discord. result of his Mr. Alison had its marital As a intoxicated, harassment, driving hindering while was convicted of officer, subpoena. police and misuse of *49 seriously ‘would not impair public confidence the entire legal profession’ not, result, as a impair public confidence in the integrity of the courts.” The majority completely ignores that, the fact in September the Tel Aviv District Court convicted the respondent’s son of murder. As stated earlier, Doctrine, under the Act of State this Court must respect may this conviction and question validity. its Ultimately, we should acknowledge the fact that justice, under law, applicable has been served underlying case against respondent’s son. simply
This present facts, case does not majority argues, “so appalling” as to prejudicial constitute conduct 8.4(d). the administration justice in violation of MRPC In of giving interest members legal profession notice what personal behavior their lives will subject them to action, disciplinary 8.4(d) I am unwilling expand Rule include conduct as ambiguous as in this case. Therefore, Bar facts, presented Counsel has not by clear and evidence, convincing demonstrating violation of MRPC 8.4(d). conclusion, I believe that Bar Counsel’s evidence was support
insufficient to a finding of misconduct under either 8.4(b) (d). MRPC
Judge RAKER agrees with expressed the views herein joins dissenting opinion. this