Attorney Grievance v. Hermina
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IN THE COURT OF APPEALS OF MARYLAND Misc Docket AG No. 88 September Term, 2002 ______________________________________ ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. JOHN W. HERMINA ______________________________________ Bell, C.J. *Eldridge Wilner Cathell Battaglia, Rodowsky, Lawrence F. (retired, specially assigned) Bloom, Theodore, (retired, specially assigned) JJ. ______________________________________ Opinion by Wilner, J. ______________________________________ Filed: February 13, 2004 *Eldridge, J., now retired, participated in the hearing and conf erence of this case wh ile an active member of this Court; after being recalled pursuant to the Cons titution, Article IV, Section 3A, he also participated in the decisio n and ado ption of this opinion. Acting through Bar Counsel, the Attorney Grievance Commission filed a petition for disciplinary action against respondent, John Hermina, charging him with violating several of the Maryland Rules of Professional Conduct (MRPC). Pursuant to Maryland Rule 16752(a), we referr ed the petition to Judge Ma ureen Lamasn ey, of the Circuit Court for Prince George s County, to conduct a hearing and make findings of fact and proposed conclusions of law . After a three-day hearing, Judge Lamasney filed a Statement of Findings of Fact and Conclusions of Law in which she concluded that Hermina had violated MRPC Rules 1.1 (Competence); 1.3 (Diligence); 3.2 (Expediting Litigation); 3.3(a)(1) (Making False Statement of Ma terial Fact to Tribunal); 3.4 (c) (Knowingly Disobeying Obligation Under Rules of Tribun al); 3.4(d) (Friv olous Dis covery Req uest, Failure to Comp ly with Proper Discovery Request); 3.5(a)(8) (Conduct Intended to Disrupt Tribunal); 8.2(a) (False Statement as to Qualification or Integrity of Judge); 8.4(a) (Violating Rules of Professional Conduct); 8.4(c) (Conduct Involv ing D isho nesty, Fraud, Deceit, or Misrepresentation); and 8.4(d) (Conduct Prejudicial to Administration of Justice). Judge Lamasney found two extenuating circumstances to exist, one d ealing spec ifically with the vio lation of M RPC R ule 3.2, and one, more general, dealing with Hermina s character and contributions he had made to various causes. Both parties filed exceptions attacking various findings made by the judge. We shall find merit in most, but not all, of the exceptions filed by Hermina. BACKGROUND The charges against H ermina aro se from a lawsuit that h e filed on b ehalf of K evin Reed against the Baltimore Life Insurance Company (BL IC), Reed s former employer, and David Griffin, BLIC s manager of client relations. The suit, which was one of seven that Hermina had filed against BLIC, was filed in May, 1997, in the Circuit Court for Montgom ery County and was eventually tried before a jury in June, 1998, with Judge Martha Kavanaugh presiding. T he nature o f that action is d escribed in the opinion of the Court of Special Appeals in Reed v. B altimore L ife, 127 Md. App. 536, 733 A.2d 1106 (1999), affirming the trial court judgments. BLIC was represented by Barrett Freedlander, who was general counsel to BLIC, and by David Erb and Philip Barnes. Reed s complain t included allegations of defamation, intentional infliction of emotional distress, and tortious interference with business relations. BLIC filed a countercla im alleging breach of contract, breach of fiduciary duty, and fraud on Reed s part. All or most of this stemme d from R eed s dism issal as a life insurance sales agent d ue to BLIC s conclusion that he had engaged in a number of highly improper practices with respect to universal life policies that he had sold. At the end of the plaintiff s case, Judge Kavanaugh entered judgment for Griffin on all claims against him and for BLIC on the claim of intentional infliction of emotional distress. The jury then found for B LIC on the defamation and tortious interference claims and on its counterclaim against Reed, finding on the countercla im that Reed had committed fraud and that he had breached his fiduciary and contractual duties to BLIC. A money judgment was entered against Reed on the -2- counte rclaim. The course of the litigation w as extreme ly contentious a nd often u ncivil. The lawyers traded accusations against one another regard ing a variety of p re-trial, and ofte n wholly extraneous, matters, which no doubt made Judge Kavanaugh s job much more difficult than it needed to be. Some of those d isputes requ ired Judge Kavan augh to determine which lawyer to believe, and, in most instances, she did not find Hermina s statements to be credible. Indeed, it appears that Bar Counsel s petition was triggered by an Opinion and Order entered by Judge Kavanaugh at the conclusion of the litigation, in response to a motion filed by BLIC for sanctions agains t Hermina . Judge K avanaug h forwa rded a cop y of her opinio n to Bar Counse l. Although she denied the request for sanctions, she found Hermina s conduct to be egreg ious. She stated, among other things, that he never provided any discovery to the defense, despite his representations to the contrary, that he did receive discovery from BL IC despite his protestations to the contrary, that he lied to the Court conce rning th ese issu es, that he falsely accused the court of having an ex parte conference on jury instructions, and falsely accused the courtroom staff of removing documents from the court file. The proceeding before Judge Lamasney was also a contentious one, involving accusations, counter-accusations, and a great deal of disputed evidence. Judge Kavanaugh, Mr. Freedlander, Mr. Erb, Mr. Barnes, and Mr. Hermina testified, along with other witnesses, and dozens of doc uments and trial transcript excerp ts were admitted. Judge Lamasney also had to make credibility decisions; she resolved most of those credibility issues in favor of Bar -3- Counse l s witnesses a nd expre ssly found so me of H ermina s tes timony not to b e credible. She said, in that regard: The Court finds that the testimony of Judge Kavanaugh, Mr. Freedlander, Mr. Barnes and Mr. Erb to be credible. Therefore, this Court rejects the respond ent s version of events and accepts the testimony of Judge Kavanaugh, Mr. Erb, Mr. Barnes and Mr. Freedl ander. 1 MRPC Rule 3.3(a)(1) provides that a lawyer shall not knowingly make a false statement of material fact or law to a tribunal. Judge Lamasney found that Hermina misrepresented three basic things to the trial court: (1) that he had filed a set o f interrogatories in May, 1997, which were never answered when, in fact, he never filed those interrogatories; (2) that he had not received requested do cuments from B LIC in response to discovery when, in fact, he had received those docume nts; and (3) th at a pre-trial protective order entered by Judge Rupp had precluded him from conducting discovery when, in fact, the order was a limited one and did not preclude him from conducting discovery. She also found th at those misr epresentatio ns were d eliberate and intentional, an d not neglig ent. 2 MRPC Rule 3.4(c) provides that a lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on the assertion that no valid 1 Judge Lamasney erroneou sly refers to M r. Freedland er as Mr. F reelander. W e shall use the correct spelling, even when quoting from her findings. 2 Judge Lamasney also found as a fact that Hermina had falsely accused Freedlander of having an impro per ex parte conversa tion with a ju dge in Carroll County in another case, but she never tied that finding to any particular MRPC violation, so we shall not consider that finding. -4- obligation exists. Rule 3.4(d) precludes a lawyer from making a frivolous discovery request and from failing to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party. Judge Lamasney found that Hermina did not provide discovery after receiving a timely request and that his reasons for that failure were without merit and constituted a violation of both the discovery Rules and a scheduling order entered by the court. That, she concluded, constituted a violation of MRPC 3.4(c) and (d ) as well. She also found that Hermina had failed to participate in a pre-trial conference ordered by the court in its scheduling order, and that failure constituted a sep arate violation of MR PC 3.4(c). MRPC Rule 3.2 requires a lawyer to make reasonable efforts to expedite litigation consistent with the interests of the client. Early in the course of the litigation, Judge Weinstein, then the county administrative judge, issued a scheduling order and an order for mandatory pre-trial c onfere nce. Th ose ord ers, amo ng othe r things, r equired the p arties to cooperate in the preparation of a joint pre-trial statement, to be filed with the court by March 20, 1998, and to meet and confer at least a week before then in order to prepare that statement. Judge Lamasney found th at the purpo se of that req uirement w as to expedite the litigation and that, by refusing to cooperate in the preparation of the joint statement an d to participate in the pre-trial conference, Hermina had violated MRPC 3.2. MRPC 3.5(a)(8) pro vides that a lawyer shall no t engage in conduct in tended to disrupt a tribunal. Judg e Lama sney found that, by objecting to the introduction of documents on the basis that he had not received them, when, in fact, he had received the m, by moving for a -5- mistrial based on the assertion that BLIC had failed to answer interrogatories that Judge Lamasney found had not been sent, and by moving to disqualify Judge Kavanaugh for unsuppo rtable reasons, Hermina had violated that Rule. She concluded that those actions were intende d to and did disru pt the or derly prog ress of t he trial. MRPC 8.2(a) provides that a lawyer shall not make a statement that the lawyer knows to be false or with reckless d isregard as to its truth or falsity concerning the qualifications or integrity of a judge. On July 11, 1998, Hermina wrote a letter to Mr. Erb, in which he at least suggested that Erb, Barnes, and Judge Kavanaugh had an ex parte conference during which the proposed jury instructions were discussed. Judge Lamasney found that the accusation of an ex parte conversa tion conce rned the inte grity of Judge Kavan augh and was ma de with reckless disregard of its truth. MR PC R ule 1.1 requires that a lawyer prov ide comp etent represe ntation to a clie nt, i.e., the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Rule 1.3 requires that a lawyer act with reasonable diligence and promptness in representing a client. Herm ina mainta ined that, on May 19, 1997, he sent a set of interrogatories in the Reed case to Mr. Freedlander, which Freedlander never answered. Crediting Freedlander s testimony that no such interrogatories were sent at that time and that the only interrogatories he ever received in Reed were sent in December, 1997 and were answered, Judge Lamasney found that Hermina s failure to file those interrogatories [a]ffected his ability to prepare for trial and thereby violated those Rules. -6- The MRPC 8.4(a), (c), and (d) violations rested on the facts underlying the other violations. In relevant part, Rule 8.4 declares it to be unprofessional conduct for a lawyer (a) to violate any of the MRPC Rules, (c) to engage in conduct involving dish onesty, fraud, deceit, or misre presen tation, and (d) to engage in conduct that is prejudicial to the administration of justic e. Judg e Lam asney fo und tha t [b]as ed on th e factu al findin gs mad e, Hermina violated those Rules. Hermina s exceptions comprise 39 pages and go into great detail concerning the evidence relating to some of Jud ge Lamasne y s findings. We need not be so specific in order to consider the issues before us. The principal basis of his exceptions is that the evidence does not support those findings and therefore does not support Judge Lamasn ey s conclusions with respe ct to the Ru le violations. We agre e in part. Alth ough ther e clearly was unprofessional conduct on Hermina s part, it did not constitute a violation of some of these R ules. DISCUSSION The initial complaint in Reed was filed May 1, 1997. On Se ptember 12 of tha t year, following a scheduling conf erence, Judge Weinstein -- the co unty administrative judge -entered a scheduling order that, among other things, required written discovery to be served by Decem ber 29, and for discov ery to be completed by January 26, 1998. A joint pre-trial statement was to be filed by March 20, 1998, in preparation for a pre-trial conference on -7- March 27. In an accompanying Order for Mandatory Settlement/Pre-Trial Conference, the court directed the parties and trial counsel to meet at least two weeks b efore that conference and endeavor to settle the case. If the parties were unable to agree on a time and place for the meeting, the order directe d that it be at 9:00 a.m. in the courthouse lobby on March 13, 1998 (two weeks before the scheduled conference). The accompanying order also set forth the kind of information the joint pre-trial statement was to contain, including a statement by each party of all claims and defenses the party was submitting for trial, the nature of the alleged injury and damages claimed, a list of the party s witnesses and trial exhibits, and agreed and disputed voir dire questions and jury instructions. MRPC 3.3(a)(1) and 3.5(a)(8) The violations of these Rules found by Judge Lamasney rest on common facts. The MRPC 3.3(a)(1) violation was based on her finding that Hermina had, on a number of occasions, falsely stated to the court that BLIC had failed to respond to his discovery requests, and that those statements were intentionally false. The MRPC 3.5(a)(8) violation was based on Judge L amasney s f inding that Hermina had intentionally disrupted the trial by objecting to docume nts on the ground that he had not received them, when, in fact, he had, by moving for a mistrial on the ground that BLIC had failed to respond to interrogatories that Judge Lamasney found had neve r been sen t, and by mov ing to recus e Judge K avanaug h in the mid dle of tr ial beca use she did not believe his vers ion wit h respe ct to thos e matte rs. -8- On May 19, 1997, Hermina sent a certified letter to Freedlander. There is frequent reference to that letter, but w e are unab le to locate it in the record. Hermina claimed that he enclosed with the letter two sets of interrogatories one, a set of 26 interrogatories entitled Plaintiff Reed s First Set of Interrogatories, in the Reed case, and one in the Kreh case, which was among the six other actions Hermina had filed against BLIC. Freedlander contended that the only interrogatories enclosed with that letter were those in the Kreh case and that he never received any First Set of Interrogatories in Reed. Freedland er testified that th e only interrogatories he ever received in Reed was a set of four interrogatories, captioned Plaintiff Reed s Second Set of Interrogatories, that he received on December 29, 1997 and answered. There was a clear dispute in the evidence regarding whether the May 19 letter enclosed a set of interrogatories in the Reed case. Hermina did not file a notice in the Reed case that the First Set of Interrog atories had been filed until May, 1998 a year after he claimed they were filed and barely a month b efore trial. 3 This dispute first arose, of course, during the litigation, and Judge Kavanaugh had found that interrogatories in the Reed case 3 Maryland Rule 2-401(d)(2) provides that discovery material shall not be filed w ith the court but tha t, instead, the pa rty generating th e discovery material shall (1) serve the material on the othe r party, (2) file a no tice with the court stating the type of discovery material served, the date and manner of service, and the party served, and (3) retain the original of the discovery material and make it available for inspection. The Rule does not specify when the notice must be filed with the court, although, in adopting the Rule, the Court certainly anticipated that the notice would be filed contemporaneously with service of the material, not a year later. The purpose of the notice filed with the court is to document both the fact that the discovery was served and when it was served. An ex post facto filing of the notice hardly serves either purpo se and, inde ed, can lead to consider able mischief, if not outright fraud. -9- were not sen t with th at Ma y 19 letter. J udge L amasn ey, after listening to testimony from Hermina, his brother (w ho was a lso his partne r), and his sec retary, as well as from Freedlander, Erb, and Barnes, and considering a number of documents bearing on the matter, found likew ise. T hat w as es sentially a credibility determination based on disputed evidence, and we shall not distur b it. Although we accept the finding that the First Set of In terrogatories w ere not, in fac t, sent on May 19, we do not accept the f inding that H ermina de liberately and inte ntionally misled Judge Kavanaugh in asserting that t hey were sent at that time (Rule 3.3(a)(1)) or that his motion fo r mistrial based on Freed lander s failu re to answ er those interro gatories amounted to an attempt to disrupt the trial (Rule 3.5( a)(8)). There appears to b e no dispu te that interrogatories in the Kreh case wer e enclosed with that letter. H ermina be lieved that interrogatories in the Reed case were enclosed as well, and there is some independent evidence to support that belief, even though Judges Kavanaugh and L amasney found, as a fact, that the interrog atories wer e not sent. 4 Judge Kavanaugh never foun d a delibera te misstateme nt. She noted that there was no evidence that he had sent the first set of 4 On July 15 and July 17, Hermina wrote to Freedlander, asking when he could expect responses to discovery in the Litigation Against Baltimore Life. Those letters did not identify the Reed litigation in particu lar. On July 30, 1997, and July 31, 1997, Freedlander wrote to Hermina, captioning his letter Reed v. Baltimore Life Insurance Company, respondin g that answ ers to discov ery were no t yet due. In light of the fact that th e only discovery in Reed that had been requested at that point, according to Hermina, consisted of the interrogatories he claimed were sent on May 19, Hermina could reasonably have treated Freedlander s comm ent as an ackno wledg ment th at he ha d, in fac t, received those interrogatories. -10- interrogatories in a timely manner, and commented that [y]ou may have mismailed them. I am no t sure w hat you d id. We sustain the finding that no interrogatories were enclosed with the May 19 letter and that what are labeled the F irst Set of Interrogatories were never, in fact, served on Freedlander, but we reject the finding that Hermina s representation to the contrary was deliberate and intentional, rather than negligent. There is not, to us, clear and convincing evidence that Herm ina did not h onestly, even if erroneously, believe that he had sent tho se interro gatories . That was not th e only basis fo r Judge L amasney s f inding, with respect to MRPC 3.3(a)(1), of deliberate misrepresentation, or with respect to MRPC 3.5(a)(8), of disruption of the trial. The Rule 3.3(a)(1) violation also rested on Hermina s representations to Judge Kavanaugh that (1) he ha d not receiv ed certain documents in discovery, and (2) he had been precluded by a protective order issued by Judge Rupp from conducting any discovery, bo th of wh ich Jud ge Lam asney fo und to b e false. With respect to the receipt of documents, Judge Lamasney credited the testimony of Judge Kavanaug h, Mr. Erb, and Mr. Barnes over that of Hermina, and we shall not disturb that credibility determination. The substance of that testimony was rather thin, however; some of it was in conflict, and some of it was thoroughly confusing. Clearly, some documents were delivered to Hermina, and he admitted so. He claimed, and his secretary corroborated, that the documents he was given consisted of about 20 pages of old pleadings and did not con tain the requ ested disco very. It is frankly not c lear what o ther docum ents -11- were delivered. Judge Kavanaugh believed that all the documents in question had been turned over to Hermina by Mr. Erb in her cham bers, but Mr. Erb co nfirmed Herm ina s assertion that he had not turned them over at that time. Erb stated at one point that he delivered 500 original documents to Hermina in a red-well tub and, at another time, said that he had delivered about 1,000 such docume nts. He never got a receipt for any of the docume nts and had n o verification of their delivery. It strikes us as odd, to say the least, that a lawyer in a hotly contested and contentious case, chock full of discovery disputes that had produced several mo tions to com pel and cro ss motions for sanctions, would turn over 500 to 1,000 original documents and not get a receipt or have some written evidence of delive ry. The evidence on this point is not, to us, clear and convincing. The issue of Judge Rupp s protective order has more significance. Hermina filed (or at least believed he had filed) a variety of discovery requests in May, 1997, one of which was to take the depos ition of a particul ar hand writing expert. As Freedlander either had filed or intended to file a motion to dismiss the action, he took the position that he was not required to respond to discovery until that motion was decided. Freedlander therefore moved for a protective order to pre clude the tak ing of the deposition. On June 20, 1997, Judge Rupp granted that motion. The only effect of the order was to preclude the deposition. Hermina nonetheless asserted on several occasions that the orde r precluded him from engaging in any discovery. He sought his own protective order and later objected to the trial testimony of a defense expert on th at basis. In ma king that arg ument, H ermina w as comp letely -12- misconstruing the order; there was no reasonable basis for a belief that Judge Rupp had precluded Hermin a from tak ing any discov ery throughout the rest of the case, and for Hermina to assert that as a ground for precluding discovery by BLIC or precluding trial testimony by a defense witness was a deliberate misrepresentation and thus a violation of MRPC 3.3(a)(1). On this limited basis, we shall overrule Hermina s exceptions to the finding that he violated MR PC 3.3(a)(1). The Rule 3.5(a)(8) violation also had an additional basis a motion Hermina made to recuse Jud ge Kav anaugh. T hat, too, arose initially from the dispute over whether Hermina had mailed the First Set of Interrogatories on May 19. The issue surfaced, again, on the first and second days of trial. Judge Kavanaugh listened to Hermina, exam ined the record befo re her, and made a finding that the First Set of Interrogatories had not been sent. She said that her decision was based, in part, on her assessment of Hermina s credibility, but also on the lack of any contemporaneous documentation that the interrog atories h ad bee n sent. Counsel had traded accusations of being u ntruthful, and, in response to that, Judge Kavanaugh noted in passing that another case that Hermina had filed against BLIC had been dismissed because he had no t appea red for trial. What relevance that had and how Judge Kavanaugh even knew such a fact is unclear. Hermina asked whether it was part of som e court reco rd, to which the judge replied that she had learned of it through correspondence from Hermina. The next day, Hermina filed a written motion to recuse Judge Kavanaugh, accusing her of bias against him. The motion mentioned a number of instances of perceived bias but -13- was predominantly based on her not believing Hermina when he said that he had mailed the First Set of Interrogatories in May, 1997. The motion was denied. Judge Kavanaugh explained that, with the lawyers calling each other liars, she had to make a determination of wheth er or no t I thoug ht the ev idence show ed that d ocum ents ha d been presen ted to you . Judge Lamasney concluded that the motion to recuse was made to bolster and support the misrepresentations already made and, for that reason, can not be with an hon est inten tion. From that, she declared that it was intended to, and did, disrupt the orderly progress of the trial, in co ntraven tion of M RPC 3.5(a)(8 ). We disagree and shall sustain Hermina s exception. We do not question Judge Kavanaug h s ruling on the recusal motion, which was affirmed on appeal by the Court of Special Appeals (Reed v. Baltimore Life, supra, 127 Md. App. 536, 549-63, 733 A.2d 1106, 1113-1120), and we do not cou ntenance the filing of m otions to recu se simply because a judge makes unfavorable rulings or does not accept a lawyer s statement or explanation. Under all of the circumstances, however, we do not believe that the evidence demonstrates that the mo tion wa s made to disrup t the trial o r the tribu nal. It was a motion that had no merit and was prop erly denied, bu t it did not suffice to show a violation of MR PC 3.5(a)(8). 5 5 In affirming the ruling denying the m otion to recuse, the C ourt of Sp ecial App eals called attention to MRPC 3.1, which precludes a lawyer from asserting an issue unless there is a non-frivolous basis for the assertion. Hermina was not charged with a violation of MRPC 3.1. -14- MRPC 3.2 and 3.4(c) and (d) The violation of MRPC 3.4(c) was based on Judge Lamasney s conclusions that (1) Hermina did not provide any discovery after receiving a timely request to do so, and (2) [b]y failing to participate in the pretrial conference, [Hermina] knowingly disobeyed an obligation created by the s cheduling order. In su pport of th e first conclusion, Judge Lamasney found that BLIC had filed a request for answers to interrogatories on December 23, 1997, and that Hermina admitted receiving the request and failing to provide answers. His explanation was that he declined to respond because of his belief that BLIC had failed to respond to his discovery requests, thereby prejudicing his ability to prepare his case. Judge Lamasney found, of course, that Hermina had received BLIC s responses, and thus concluded that his failure to respond to BLIC discovery was without merit and constituted a violatio n of bo th the dis covery ru les and Judge Wein stein s sc hedulin g order . Hermina does not d irectly challenge th is conclusio n in his exce ptions. We note that, if the underlying finding is valid, so is the conclusion, but the conclusion is valid eve n if Hermina did not receive all of th e discovery to w hich he w as entitled. Re taliation is not a proper basis for failing to com ply with valid d iscovery requ ests. If a party is una ble to answer discovery because of another party s dereliction or would be prejudiced in some material way if required to respond in advance of compliance by the other side, a proper motion for extension of time to respond can be filed, and the matter can be resolved by the court. -15- What occurred at the pre-trial conference, like most everything else in this case, was in sharp dispute. The conference, mandated for the purpose of preparing a joint pre-trial statement (see Maryland Rule 2-504.1(c)(2)), was brief and inconclusive. Hermina testified that Erb and Barnes, representing BLIC, were loud and rude, and that, as a result, he left without attempting to work on a joint statement. Erb and Barnes both claimed that Hermina had not brought with him the required witness list and exhibits, and that he simply took the docume nts brought by them and left. Although Erb admitted raising his voice, he and Barnes both denied being rude or making the statements a ttributed to them by Hermin a. As a resu lt of the failure of the conference, BLIC and Hermina each filed a sepa rate pre-trial statem ent. At some point, apparently in response to a motion for sanctions, Judge Beard ordered Herm ina to tur n over a witnes s list and exhibits . In light of her more general d etermination that Herm ina had engaged in a pattern of dishone sty and animosity, Judge Lamasney found that Hermina s testimony regarding the pre-trial conference and the joint pre-trial statement was not credible and rejected his version of the event. Ju dge Lam asney conclu ded that, by eff ectively failing to participate in the pretrial conference, Hermina knowingly disobeyed the scheduling order and thereby violated MRPC 3.4(c) and 3.2. She noted, however, that the failure to produce a joint statement had no real effect on the trial. Judge Lamasney regarded that as an extenuating circum stance. We regard it as precluding the finding of a violation of MR PC 3.2. We d o find, howeve r, that Hermina s conduct constituted a violation of MRPC 3.4(c) and overrule his exception -16- in that regard. MR PC 8 .2 On July 11, 1998, Hermina wrote a letter to Erb, in which he suggested that Erb, Barnes, and the Court, meaning Judge Kavanaugh, held a conference, meeting or discussion during which p roposed jury instructions were discussed, and he asked whether Erb or the court ever raised the issue of whether Plaintiff s counsel would be given the opportun ity or the option of attending the instructions conference/meeting/discussion you had with the Court. He added that I do note that Mr. Erb informed us of one communication, which the Court had with Defendant s counsel (after the communication was had) on the last day of trial. Hermina asked for a response. Although it does not appear that Hermina sent a copy of the letter to Judge Kavanaugh, she obviousl y learned of it. Th e MR PC 8.2 violation rested entirely on this letter. Judge Lamasney found that the accusation of an ex parte instructions conference was made with a reckless disregard as to its truth, and the accusa tion con cerns th e integri ty of Judg e Kav anaug h. Both Judge Kava naugh and M r. Erb flatly denied that any such ex parte conference, meeting, or discussion had ever been held. Erb said that, on the last day of trial, while the jury was out and Erb was waiting in the lobby area outside the courtroom, Judge Kavanaugh walked past. She asked if he knew where Hermina was, to which Erb replied that he probably was at l unch. Judge Kavanaugh then said that she might not be present to take the -17- verdict and that, in that event, Judge Beard would take the verdict. She asked Erb to convey that to Hermina, which he did. Apparently, according to Hermina, either his client, Reed, or Reed s friend, Kreh, observed the conversation and thought it improper. T hat, without any further investigation, is what led to the letter. What Hermina did was wholly improper. If there was a question in his mind about the conversation between Judge Kavanaugh and Erb that Reed or Kreh o bserved, h e should have brought his client s concern to Judge K avanaug h s attention a nd made appropriate inquiry of her, not write a letter to counsel accusing him and the judge of having an inapprop riate ex parte communication, which would constitute, for Judge Kavanaugh, a violation of Canon 3 A.(5) of the Maryland Code of Jud icial Co nduct a nd, for Erb, a violation of MRPC 3.5(a)(7). We sustain Judge Lamasney s finding that MRPC 8.2 was violated. MR PC 1 .1 and 1.3 The only basis for the violations of these Rules was Judge Lamasney s finding that the failure to file the request for interrogatories [a]ffected [Hermina s] ability to prepare for trial. We have already discussed the fa cts surroun ding that m atter. This bare finding is insufficient to constitute clear and convincing evidence that Hermina violated Rules 1.1 or 1.3. -18- MRP C 8.4(a), (c), and (d). We have concluded that Hermina violated MRPC Rules 3.3(a)(1) by misrepresenting the content and effec t of Judge Rup p s pre-trial protective order and falsely claiming that he had been precluded from conducting discovery, 3.4(c) by failing to respond to discovery requests and by failing to participate in the pre-trial conference and cooperate in preparing a joint pre-trial statement, and 8.2 by recklessly accusing Judge Kavanaugh of participating in an inapp ropriate ex parte conference. Those conclusions suffice to establish a violation of M RPC 8.4(a), (c ), and (d ) as we ll. CONCLUSION The fact that we have sustained a number of Hermina s exceptions and found a lack of clear and c onvincing evidence that certain rules were violated should not be taken as even a partial condonation of his conduct. The several disagreements or differences in recollection that led to some of what occurred could and should have been handled with common sense rather than unjustified outrage and unsupported or, at best, half-supported, accusations. Under all of the circumstances, including the absence of any prior misconduct and Hermina s commendable pro bono activities, we believe that the appropriate sanction for the misconduct in this case is a reprimand. IT IS SO ORDERED. JOHN W. HERMINA SHALL PAY COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING THE COSTS OF ALL TRANSCRIPTS, PURSUANT TO MARYLAND RULE 16-761, FOR WHICH -19- SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION OF MARYLAND AGAINST JOHN W. HERMINA. -20-
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