Monday, April 25, 2011

He That Lives By The Sword Shall Be Suspended For 60 Days

An attorney who walked out of a proceeding involving a client charged with driving without a license was suspended for 60 days by the Maryland Court of Appeals.

The attorney and prosecutor both sought to continue the matter to allow the attorney's client to obtain a valid license. The judge denied the motion but agreed to pass the case. The parties sought to place the case on the stet docket so that the client could get the license. The judge denied the request.

The prosecutor refused to dismiss ther case. the attorney left the court, not to return, in violation of the judge's instructions. He also had the client depart. The judge held him in contempt of court.

According to the hearing judge, "[p]rior to the events...there was history between [the judge] and Respondent. It undoubtedly, but should not have, played a role in this incident. The Respondent appears to have wanted to prevail over [the judge] personally." The hearing judge found the conduct to be "annoying and disrespectful." The attorney advanced his own personal legal beliefs over the interests of his client:

Respondent ...told the prosecutor to play his role in allowing [him] to challenge the actions of the Court in order to allow himself the opportunity to fall upon his sword in support of a misperceived legal right. Having fallen upon his sword, Respondent nows complains that falling on his sword has painful consequences. He is now accountable in these proceedings for his conduct.

The court here found that the attorney showed no remorse in oral argument before it. His conduct caused bench warrants to be issued for the client. The court also considered the fact that the attorney was aware of the impropriety of his conduct, as he had represented a lawyer in a bar discipline case that the court cited in its sanction determination.  (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2011/04/he-that-lives-by-the-sword.html

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must say seems like a fair result all around, well except for the client...

Posted by: steven | Apr 25, 2011 10:45:48 PM

I did not just walk out on a judge. I asked repeatedly to be excused and respectfully attempted to explain that the only appropriate mechanism for review would be a petition for certiorari in the circuit court. I was told I had "better sit down and read the rules"(by a judge that a minute before had completely mistated the discovery/postponement rule). The case was passed before I left counsel table. Judge Ambrose acknowledged the following on cross examination:
Q Okay. Well, let me ask you this. Did you not write to the Attorney Grievance Commission that [“]although the Paz-Rubio case was passed for later in the docket, it was not passed before I left the courtroom[“]?
A I don’t know what I wrote. I don’t remember.
Q Well, would that be truthful?
A. It was not passed while, no. It was passed while you were in the courtroom.
Q It was passed while I was in the courtroom?
A You were leaving the courtroom when I said we would pass the case.
Q Was I at the counsel table, Your Honor?
A No, you were at the door, I believe.
Q I believe your testimony was earlier that I was at the door when you announced that I was in contempt?
A Well, that’s true.
Q Well, then what is true?
A I may have said that it was passed while you were still at the table or leaving the table.
Q So I may have been at the table when you advised me that the matter was passed?
A I don’t remember, Mr. Usiak. I think you were at the table, or leaving the table.
* * * * * * * *
Q Okay. So, if you don’t recall the events, well, let me just ask you. Did you tell the Attorney Grievance Commission that the case was not passed before I left the courtroom?
A I don’t remember what I told that Attorney Grievance Commission. I wrote them a letter.
Q You wrote them two letters, Your Honor.
A Okay. I wrote them two letters. I didn’t even remember—
* * * * * * * *
Q Okay. I’m going to show you respondent’s Exhibit No. 5 and ask you if that refreshes your recollection?
A I do. Yeah.
Q Did you write a statement and did you make an incorrect statement in regards to, well, would you read this, would you read the final sentence of paragraph two?
A [“]Although the case was passed for later in the docket, it was not passed before he left the courtroom.[“]
Q And you wrote that on what day?
A August the 7th, 2008.
Q That was an incorrect statement?
A It may have been.
Q No, Your Honor. Was it an incorrect statement?
MS. RIDGELL: Objection , Your Honor.
THE WITNESS: It may have been.
MS. RIDGELL: Objection.
THE COURT: Overruled.
Q You don’t know whether it’s an incorrect statement as you’re sitting here?
A I can’t remember. I can’t remember if it was passed before you left or after you left. I believe you were still in the courtroom.
Q In fact, you did have a docket, or at least your notes associated with the matter, I believe they’ve been introduced. I’d ask you to review Plaintiff’s Exhibit No. 3.
A [“]Case steted and passed and counsel left. Defendant and counsel left.[“]
Q It was not [“]case steted[“]
A I’m sorry. [“]Case started and passed.[“]
Q It’s [“]case started and passed.[”]
A [“]And passed. Defendant and counsel left.[“]
Q So, you on that date, what date did you write that?
A This is the day in question, May 15th.
Q And was that in existence when you wrote the statement to the Attorney Grievance Commission saying that it was not passed before he left the courtroom?
A Yes.
Q So do you recognize that your statement to the Attorney Grievance on August 7th was an incorrect statement?
A Must have been.
Q I’m sorry, Your Honor?
A. Must have been.
MS. RIDGELL: Objection. This has been asked and answered. He’s asked the question several time[s].
THE COURT: Overruled. Not a proper objection.

(Transcript, June 10, 2010, pp. 110-114)[emphasis added].

Likewise Judge Ambrose was uncertain to whom Respondent directed the statement “we’re leaving.”
Q Your saying that I told you we’re leaving.
A Yes.
Q You remember that specifically?
A Yes, yes you told me that more than once. You told me that a number of times, that you were leaving.

(Transcript, June 10, 2010, p. 124). Minutes later, however, she testified as follows:
Q You’ve reviewed that transcript many times, haven’t you, Your Honor?
A I haven’t reviewed it many times. I’ve looked at it a couple of times.
Q Okay. You’ve looked at it a couple of times. You’ve looked at it today. You’ve looked at it this morning.[?]
A I did look at it this morning, right here.
Q Okay. And so when you testified that I said many times, we’re leaving, that was an inaccurate statement, wasn’t it?
A. That is correct. It is an inaccurate statement. You asked to be excused.
* * * * * * * *
Q So your recollection is not, would I say[,] precise?
A I’d agree
Q All right. Now, the District Court has a bar just like this, only it’s straight across, doesn’t it?
A Yes.
Q And the time, the instance that the matter was called for a stet, you testif[ied] that you don’t know where the interpreter was, correct?
A Well, he was at the defense table. I just don’t know what position at the defense table.
Q You don’t recall where, what position he was at at the defense table?
A Right. No, I don’t
Q You’re not even certain if he was at the defense at the table, correct?
A Oh, he was at the defense table.
Q Okay. Was he on my right or left?
A I don’t remember.
Q Now, if he was to my right, Your Honor, I would have to get, either move him away, or ask to be excused or ask to be excused or ask him to move in order to get through the partition, isn’t that true?
A Depends on where he was standing.
* * * * * * * * *
Q Isn’t it true, Judge, that until you received the transcript, you didn’t even know the specific words that I said, we’re leaving.
A Well, I don’t remember all the specific words, Mr. Usiak.
Q And you didn’t recall the words until you saw the transcript, correct?
A Not the precise words. Yeah, that’s true. I don’t remember.
Q And in fact that transcript doesn’t say to who I directed the no, we’re leaving and excuse me.
A If it doesn’t, it doesn’t. It says what it says.
Q And so in reality I could have been saying to the, isn’t it true that I could have been saying it to the interpreter, no, we’re leaving, excuse me.
A Well, I suppose.

(Transcript, June 10, 2010, p. 128-129).

This Court should review all of Judge Ambrose’s testimony—it is quite disturbing. For example:
Q You have no knowledge about the availability of the Tyrell case CD transcript?
A No.
* * * * * * * *
Q And you, because you have access to the CD’s, know that there was no CD available to review in regards to the Tyrell Price matter, correct?
A I was told that it was not available. I did not look for it.
Q. Well, I’m sorry. But I asked you a minute ago if you had any information about the availability –
A No, you asked me if I had personal knowledge.
Q Excuse me. Excuse me
A And I did not.
THE COURT: If you would let him complete his question and then we’ll let him listen to your answer…

(Transcript, June 10, 2010, pp. 79-80)[emphasis added]

Q Is it your testimony today under oath, that I didn’t tell you that, strike that.
Is your testimony today that I told you that Mr. Price’s case has been appealed?
A Yes.
Q Isn’t it true that I also advised you that Mr. Price’s case had been steted [sic] on appeal?
A Yes.
Q And isn’t it true that I showed you that Mr. Price’s case had been steted [sic] appeal?
A I don’t recall you showing me anything.
Q Okay. It didn’t matter to you that the case had been appealed, isn’t that true?
A No, that is not true.
Q If the case had been appealed, you wouldn’t have jurisdiction, correct?
A It depends on when the disposition in the Circuit Court takes place and in that particular case, the probation was not stayed for appeal. Probation was in effect until Circuit Court acted.
Q And the Circuit Court had acted.
A But I didn’t know when it had acted or how it had acted, because you never gave me any other information.
Q Your Honor, isn’t it true you didn’t care that his case had been appealed or –
A That is not true
Q All right. I’m going to ask you.
THE COURT: Let him finish the question. Just be patient.
Q I’m going to ask you to look at your second paragraph, or second sentence on. [T]hat. Your statement. Please read that second sentence?
A The Court noted that the sentence was stayed, but probation was not.
Q Found that?
A The allegation for violation occurred and the request for bench warrant filed prior to the conclusion of the case on appeal.
Q So the case had been concluded on appeal, correct?
A Not when the bench warrant for the probation violation was issued.
Q No, no. But you said, you said a minute ago that you didn’t know that the Circuit Court case had been concluded with a stet, isn’t that true, Your Honor?
A Not until the date of the probation violation.
Q And I told you and in fact showed you that the case had been concluded in Circuit Court.
A You did not.
MS. RIDGELL: Objection , Your Honor.
THE WITNESS: I do not recall you showing me anything.
MS. RIDGELL: These questions have been asked and answered.
THE WITNESS: I just recall you yelling at me.
THE COURT: Okay, Now, we’re having three people talking at one time.
MS. RIDGELL: I’m sorry.
THE COURT: Okay. Ms Ridgell, what do you want me to say?
MS. RIDGELL: I’m objecting to the continued asking of the witness the same question over and over again about what Mr. Usiak told her and what she knew.
THE COURT: Sustained.
MS. RIDGELL: She’s testified what she knew.
THE COURT: Sustained. Next question. I’ve heard that quite a bit.
BY MR. USIAK;
Q You wrote on the date that the violation occurred, that the request for the bench warrant had been filed prior to the conclusion of the case on appeal, isn’t that what you wrote?
A Yes.
Q And so you believed, correct me if I’m wrong, that your power to proceed with the violation was base upon Mr. Price being on probation, the alleged violation occurring while the probation was in play, or operative, and the warrant being issued, isn’t that true?
A Yes.
Q And so yourself, wrote [“]the conclusion of the case in the Circuit Court[“]? You’re saying there that the conclusion in of the case in the Circuit Court had no legal effect on case. It was just your violation, your continued prosecution of the violation was based on the fact that Mr. Price was on probation and that before the case was concluded in the Circuit Court, you thought he violated the probation?
A. I didn’t know he appealed.

(Transcript, June 10, 2010, pp. 105-109)[emphasis added]

Most importantly, my client was well served by and was never abandoned nor subjected to jeopardy. Below is what I wrote the Court of Apppeals--and which is the indisputable truth:

"The undisputed evidence was that Mr. Paz-Rubio was advised, in advance, of each of the avenues that Respondent considered available to him, including challenging the jurisdiction of the district court by removing themselves from the court’s presence. It was also uncontroverted Respondent immediately offered to procure for Mr. Paz-Rubio another attorney (at Respondent’s expense) to resolve the case which Respondent believed could very well be resolved favorably to Mr. Paz-Rubio (given the circumstances). Notwithstanding these options, Mr. Paz Rubio obviously decided to maintain Respondent as his attorney and accompany Respondent to his office as they prepared appropriate filings to challenge the bench warrant that was expected to be issued. Furthermore, Respondent presented Mr. Craven the proposed filings for his review of their accuracy. See also testimony of Assistant State’s Attorney Jacob Craven, Transcript, June 10, 2010, p. 202). Assistant State’s Attorney Craven made himself available when the Circuit Court for Frederick County considered the Petition for Writ of Habeas Corpus that Respondent filed. (Transcript, June 10, 2010, p. 191). Respondent diligently arranged the eradication of the bench warrant without the slightest of inconvenience to his client. (Transcript, June 10, 2010, p. 191; see also testimony of Assistant State’s Attorney Jacob Craven, Transcript, June 10, 2010, p. 202 (“…you arranged to have a courthouse deputy, I believe a courthouse deputy, a deputy stand next to him in the waiting area of the courthouse…[a]nd your argument was that was custody.”). The State had no intention of prosecuting Mr. Paz-Rubio and it was Judge Ambrose who directed Assistant State’s Attorney Craven to recall the Mr. Paz Rubio’s case for the issuance of the bench warrant. Testimony of Assistant State’s Attorney Jacob Craven, Transcript, June 10, 2010, p. 206. Mr. Paz-Rubio’s case was eventually dismissed by the State and this Court will itself observe Mr. Paz-Rubio’s presence in support of Respondent during argument. At no time was Mr. Paz-Rubio deprived of competent effective representation, even for an instant. Likewise, Judge Thompson’s imagination surrounding the momentary (and completely inappropriate) issuance of a bench warrant for Mr. Paz-Rubio seconds before the State’s entry of a nolle prosequi is specious. See Transportation Article, § 26-204, then in effect, compliance with citation by appearance by counsel.
C. Judge Thompson erred by minimizing the significance of the consequences to Mr. Paz-Rubio, precluding Respondent’s questioning of Judge Ambrose and State’s Attorney Craven on the issue, and discrediting the newspaper articles Respondent introduced.

Respondent expressed many times that his attempts to preserve and protect his client’s right to receive the stet of his charges were base upon his belief that mere prosecution of Mr. Paz-Rubio could cause collateral consequences to the client that were far disproportionate to the traffic offense itself. Judge Thompson made the remark that Respondent’s concerns were “hyperbole” (see footnote 5, p. 16 of Findings) Judge Thompson erred by precluding the Respondent’s efforts to have Judge Ambrose and State’s Attorney Craven acknowledge the real-life deportation detainers the personally observed being placed every day upon many criminal defendants. See p. 137-138 of transcript, June 10, 2010, “THE COURT: That the Sheriff has deported people? …Sheriff’s don’t do that… Unless he sits on the immigration and control enforcement, I don’t think he does anything like that…Does he hold court…So that’s law enforcement and his office is run by him, not by this witness, so let’s go…He doesn’t deport anybody.” The Likewise, Judge Thompson erred by belittling the many newspaper articles detailing the local sheriff’s aggressive deportation policy towards undocumented individuals merely charged with driving without a license...Respondent actions could be viewed as undertaken to comport with the highest tradition and ethical standards of counsel. See Maryland Lawyers Rules of Professional Conduct, Rules 1.1, 1.2, 1.3, 1.4, & 3.1, and 3.2. Also see Gray v. State, supra, 38 Md. App. at 354-359. Judge Thompson’s interjection of his understandings of immigration conduct was clearly improper."

In January 2011, shortly after argument in my case, the following was printed in the Daily Record (Maryland's legal journal--the actual report is also available online) http://thedailyrecord.com/2011/01/31/report-in-frederick-county-minor-offenses-likely-to-lead-to-deportation-for-illegals/

Mr. Paz-Rubio remains very appreciative of my represenation.

Posted by: Norman Usiak | Apr 30, 2011 10:08:34 AM

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