Passionate To A Fault

An indefinite suspension with the right to reapply after six months has been ordered by the Maryland Supreme Court.

Background

The hearing judge found that Respondent was admitted to the Bar of the Supreme Court of Washington in 2003 and, in his first year as a lawyer, he was a full-time volunteer and operated several legal clinics in Tacoma, Washington. He then worked as a public defender in Yakima County, Washington, for approximately five years. After that, Respondent worked for the Confederated Tribes and Bands of the Yakama Nation “representing tribal members and focusing mostly on criminal law.” On July 30, 2013, Respondent was admitted to the Maryland Bar. The hearing judge found that, over the course of Respondent’s career in Washington and in Maryland, he has handled “hundreds and hundreds” of criminal cases.

Respondent represented a client charged in a robbery who he believed was innocent. 

After he had been removed from the case for conduct deemed in violation of an order, he appeared before the judge in an unrelated matter

On August 6, 2021, Respondent appeared before Judge Alban for a bond review hearing on behalf of the defendant in State v. Harrod. At the hearing, Respondent asked Judge Alban to recuse herself. In support of his request, Respondent stated the following:

You[, Judge Alban,] are a liar, you are biased, you have demonstrated bias, you have stepped into the shoes of the State’s Attorney on occasion, you refuse to apply the law when it doesn’t suit your purposes or when you don’t agree with it. You are complicit in kidnapping and basically you are corrupt for a judge. So I have to ask you that you recuse yourself.

(All sic in original).  Judge Alban denied Respondent’s request. Throughout the hearing, Respondent renewed his request for Judge Alban to recuse herself, repeating that Judge was “a liar,” “biased,” “corrupt,” “complicit in kidnapping,” and improperly stepped “into the shoes of the State’s Attorneys” and that, therefore, Mr. Harrod, could not get a fair hearing. Judge Alban again denied his request, and the hearing in the Harrod case resumed.

Then

On August 8, 2021, Respondent sent Judge Klavans an email that stated the following:

Good afternoon,

I am writing to request that a number of the Judges in your courthouse be permanently recused from any case I am named in, due to their corruption which has spread though rot in the judiciary of Anne Arundel Circuit Court.

Among these are:
Pam Alban. While on the bench, she has lied, acted as a State’s attorney, demonstrated bias towards the state, and is complicit in kidnaping. She also refuses to apply the law when it does not suit her personal beliefs, even thought the law was very clear on the issues at hand. When I asked her to recuse herself at my hearing, on Friday, she stated that she did not see any of that in her actions. That is either another lie, or more bias.

Judge Wachs: His demonstrated bias against the Defense Bar, his hypocrisy, and his refusal to apply the law has caused permanent harm to my some of my clients.

Judge Mulford: His bias against me, his allowing, along with Pam Alban, State’s attorney to lie to the Court, and commit fraud upon the Court all remove him from the ability to be fair and impartial to me or my clients.

Additionally, as part of my goal to expose the corruption within your Court, and to try and bring about a political action against them, I shall be distributing the attached flyer, or similar, in front of your courthouse on random morning and lunch times.

Please help to protect my client’s constitutional rights, and what is left of the integrity of the Court in your country.

(All sic in original).

The flyer

Attached to Respondent’s email to Judge Klavans was a copy of a flyer he intended to circulate outside of the courthouse. The flyer had photographs of Judges Wachs and Alban with an “X” superimposed over each of their images. Beneath each photograph were the words, “Bias, Lawless, Criminality[.]” In addition, the flyer included a link to a website named “AnneArundelCorruptCourts.com.” Also at the bottom of the flyer there was a tagline, “Anne Arundel Circuit Court – Where our Constitution Comes to Die[,]” and a QR code that directed users to a publicly available Change.org petition calling on former Maryland Governor Larry Hogan to recall Judges Wachs and Alban for “violat[ing] their oath of office.” (Alteration in original). Respondent disseminated the flyer to Judge Klavans and several attorneys and posted it on the listserv for the Maryland Criminal Defense Attorneys’ Association.

Respondent's position

In providing context for his exceptions, Respondent characterizes his conduct and representation of Ms. Lemons as passionate and zealous advocacy on behalf of a mistakenly identified and accused perpetrator of the crimes against Ms. Hirsch. He acknowledges that he “admittedly went too far to protest what he believed to be a miscarriage of justice” and went “overboard in protesting his removal from the case of a woman considered innocent[.]” Respondent also describes his conduct as “[t]inged with hyperbole[,]” “provocative[,]” and an “exercise[ in] poor judgment [which]. . . he regrets.” But he faults the hearing judge for dismissing as reckless his complaints about Ms. Lemons’ treatment by the circuit court and not examining the merits of the rulings of the circuit court in Ms. Lemons’ criminal case to determine whether his conduct was sanctionable.

His showing his client to the robbery victim was not misconduct

Thus, although it was inadvisable for Respondent to arrange the meeting between Ms. Lemons, the charged suspect, and Ms. Hirsch, the victim, this conduct is not clear and convincing evidence of a violation of either Rule 1.1 or Rule 1.2(d) because it was not unreasonable for Respondent to conclude that the no-contact order was not in effect at the time of the meeting. Accordingly, we sustain the Respondent’s exceptions to the hearing judge’s conclusions of law that Respondent violated them.

The statements made at the proceeding before Judge Albin and in the flyer violated Rule 8.2(a); the email did not

We disagree with the hearing judge’s finding of fact and conclusions of law with respect to the email. Although Respondent’s statements in the email were unseemly and intemperate, and many of them were false, the purpose of Rule 8.2(a) is to “protect[] the integrity of the judicial system, and the public’s confidence therein,” and “not to protect judges[] . . . from unkind or [even] undeserved criticisms.” Frost, 437 Md. at 263. We fail to see how criticisms made only in a document sent to one administrative judge could potentially have an adverse effect on the integrity of the judicial system or the public’s confidence therein. As a result, we find no clear and convincing evidence that any of the statements in Respondent’s August 8, 2021, email support the conclusion that he violated Rule 8.2(a). We, therefore, sustain Respondent’s exceptions to the hearing judge’s conclusion of law that Respondent violated Rule 8.2(a) with respect to the statements in the email.

A final note

we do not intend to caution against attorneys advocating zealously for their clients. Instead, we merely note that zealous advocacy can, at times, cause unintended consequences. Lawyers should not let their commitment to their client(s) cloud their professional judgment and impinge on their ethical obligations.

Respondent had no record of prior discipline

we recognize that Respondent also engaged in conduct that occurred after the Lemons case had concluded. Respondent made multiple statements about two judges with reckless disregard as to their truth or falsity. Moreover, he impugned their character. Respondent acknowledges that these statements were inappropriate, and that he would not, given the opportunity, repeat this conduct. Respondent has taken remedial actions to prevent this type of conduct from happening again by limiting his practice to District Court cases. The conduct that led to these violations occurred after a long legal career during which he has not had any other disciplinary proceedings brought against him.

(Mike Frisch)