Attorney Grievance v. Link

Annotate this Case

Download PDF

IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG No. 97 September Term, 2002 ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. HAROLD S. LINK, JR. Bell, C.J. Raker Wilner Cathell Harrell Battaglia Eldridge, John C. (retired, specially assigned), JJ. Opinion by Bell, C.J. Wilner and Battaglia, JJ., concur Raker and Eldridge, JJ., concur in judgment only Filed: March 19, 2004 The Attorney Grieva nce Comm ission of Maryland, the petitioner, acting pursuant to Maryland Rule 16-751,1 approved the filing by Bar Counsel of a Petition For Disciplinary or Remedial Action charging the respondent, Harold S. Link, Jr., with violating Rule 4.4, Respect for Rights of Third Persons,2 of the Maryland Rules of Professional Conduct ( MRPC ), as adopted by Maryland rule 16-812 and, in so doing, acting in a manner prejudicial to the administration of justice, in violation of M RPC 8.4 (d). 3 We referred the case to the Honorable Robert E. Cadigan, of the Circuit Court for Baltimore County, for hearing, Rule 16-752 (a), 4 and to f ind fac ts and d raw co nclusio ns of la w. See 16-757 (c). 5 1 Maryland Rule 16-751 provides: (a) Commencement of disciplinary or remedial action.- Upon approval of the Commission, Bar Counsel shall file a Petition for Disciplinary or Remedial Action in the Court of Appeals. 2 Maryland Rule of Professional conduct 4.4 provides: In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that the lawyer knows violate the legal rig hts of su ch pers on. 3 MRPC 8 .4 (d) provides: It is professional misconduct for a lawyer to: * * * * (d) engage in conduct that is prejudicial to the administratio n of justice; * * * * 4 Rule 16-752 (a) provides: (a) Order.- Upon the filing of a Petition for Disciplinary or Remedial Action, the Court of Appeals may enter an order designating a judge of any circuit court to hear the action and the clerk responsible for maintaining the record. The order of designation shall require the judge, after consultation with Bar Counsel and the attorney, to enter a scheduling order defining the extent of discovery and setting dates for the completion of discovery, filing Following the hearing, at which the complainant, W ilbert Myles, the complainant s supervisor and the respondent, both for himself an d in the petitioner s case, all testified, the hearing court concluded that the respondent violated the rules charge d. Those conclusions were base d on the f indings o f fac t mad e by the court, after summarizing the testimony, as follows: 1. The Incident of May 10, 2002 The Respondent s testimony (hereinafter Link ) is best summarized by his letter directed to Mr. G rossma n dated July 4, 200 2 introd uced a s Plaintif f s Ex hibit 1 (E ) ....6 In addition, Link testified at the hearing that he has been a member of the Maryland Bar since 199 0. He eng ages in a ge neral practice working out of his home in Cockeysville. His practice emphasizes p ersonal injury litiga tion. He emp loys no associates, paralegals or of motions, and hearing. 5 Maryland Rule 16-757 (c) provides: (c) Findin gs and co nclusions.- T he judge s hall prepare and file or d ictate into the record a statement of the judge's findings of fact, including findings as to any evidence regarding remedial action, and con clusions of law. If dictated into the record, the statement shall be promptly transcribed. Unless the time is extended by the Court of Appeals, the written or transcribed statement shall be filed with the clerk responsible for the record no later than 45 days after the conclusion of the hearing. The clerk shall mail a copy of the statement to each party. 6 In that letter, consisting of approximately 5 ½ single spaced pages, the respondent painstakingly presents his side of the incident. The respondent s bottom line is that he did not hing w rong an d, indee d, he w as the m odel of decoru m and was h imself v ictimize d. Accord ing to the resp ondent, the complain t was riddle d with so many blatan t lies that it was diff icult to know where to start to answ er it. 2 secretaries. Approximately 90% of his personal injury clients are African American. Link is Caucasian. In his testimony. Link alluded to problems he previously encountered at the MVA in Towson w hen a clerk informed him he was not entitled to certain information because of the Privacy Act. Following calls to one of the higher-ups at MVA, Link concluded that the whole MVA system is imbued with violations of the Marylan d Pub lic Info rmation Act. He referred to another prior incident with a government employee following which he asked to see the em ployee s supe rvisor. He in dicates that his conversa tion with the superv isor w as not f riendly. When Link w ent to the MVA office in Mondawmin on May 10, 2002 he was hoping they would give him the insurance coverage information he needed but he wondered if the MVA was pers isting in its policy of non-disclo sure because of the Privacy Act. He purposely dressed causally because he wanted to see how ordinary people are treated. He is appalled by the way he and o thers are treated poorly. Link admitted that he has had difficu lty with other agencies. His standard is not to back-down but rather go into the mouth of the beast. Link stated in closing argument that the MVA is a criminal organization and is acting illegally. He argu ed that its all abo ut the little guy ... taking on the governmen t ... whistle-blowing. As stated in Link's July 4, 2002 letter (Plaintiff's Exhibit 1(E), he testified that the MVA Custom er Service A gent, Wilbe rt Myles (here inafter M yles ) was rude and c urt. 3 After being asked by Myles if he was an attorney and to pro duce iden tification. Link admits that he told Myles and his supervisor, Ms. Ryce, (hereinafter Ryce ) that Myles was incompe tent, didn't know the law and needs to be trained properly. He admits that he called Myles a loathsome bureaucrat. In his testimony, he stated Myles is rude, arroga nt, incompetent and lazy .... He doesn t know the law ... he acted like a complete fool ... he was shouting ... like a complete idiot. Link contends that his right to tell an employee how he is doing his job is protected by the First Amendment. When Myles refused to give Link his name, he admits that he said OK, Sparky, I ve had enough of your non sense - let me talk to your s uperviso r. Li nk te stified th at Spark y is a meaningless term ... for som eone wh ose n ame you don t know ... it's a filler. I wou ld usually say partner. I am being condescending ... the term sir is a form of respect and I had absolutely none. Link denied any knowledge that Sparky has any racial connotation or is in any way racially offensive. Fin ally, Link testified that he calmly answered Mr. Myles silly questions and never raised his voice during the May 2002 encounter but rather was verbally abused by Myles. L ink con tends th at his co nduct w as imp eccab le. Wilbert Myles testified that he is 61 years old and has been a Customer Serv ice Agent with MVA for nine years. He previously worked as a Senior Assistant Underwriter with USF&G for 15 years. He has h ad "f our m ajor surg eries " and take s nin e pill s a da y including a heart pill. Myles is an African American. 4 On May 10, 2002 Link approached Myles work station and gave him an application for a driver's record in which he had checked off registration records. According to MVA policy, Myles requested Link's driver's license as identification. When asked why by Link, Myles responded that without identification, he could not give Link the requested information because of the Privacy Act. Myles explained that attorneys can get a complete d river s record including name and address. Myles then inquired as to whether Link was an attorne y. Link responded what difference does it make? Myles offered an explanation which was in accord w ith his training manual. Link then stated that Myles was breaking the law in not providing the information. Myles described Link s demeanor as very smug and pretentious. Based upon Mr. Myles work experience , he suspected that Link was an a ttorney becau se they have c ertain airs. Myles testified that when Link continued the name calling ... the maligning and the indignities that he hurled at me , Myles stated you need to see the supervisor. Link stated you need to bring someone out here ... because obviously you don t kn ow what you are doing. Before the supervisor (Ryce) was summonsed, Myles testified that Link ca lled him Sparky several more times. Myles took offense and protested that that was not his name and that Link s comment was demeaning, sarcastic, disrespectful and insulting. He stated that he was humiliated, upset, infuriated and embarrassed. Myles further testified that 5 Spa rky is just another name for the N word for most people of color at my age or older. As Myles left his work station to speak with his supervisor, he states that Link threw his driver's license on the counter. When Myles went to his supervisor's office, she was on the telephone with customers. She placed the customer on hold a minute and Myles told her what had happened. When the supervisor appeared, Myles testified that Link stated what took you so long? At the point, he stated Link was irate and told the supervisor that Sparky over here doesn t know his job and that he should be retrained because he doesn't know the law and is incompetent. Myles states that Link told his supervisor that ... the system needs to hire folk who have a brain because everyone I have encountered throughout the system does n ot have one an d they are comp letely inco mpete nt. Myles further testified that Link as ked his supervisor for his name. She gave his last name. He then asked for his first name and sh e replied Wilbert. Thereafter Link continued to yell and proceeded to refer to Myles as Wilbert which he found to be offensive and disresp ectful. In his supervisor s presence, Link proceeded to yell across the counter and pointing his finger, Wilbert, you have broken the law and stated that he could be brought up on charge s and th at type of t hing. Myles admitted tha t he has no t read the Privacy Act or th e Maryland Public Information Act but states his training manual contains all relevant information. 6 After hearing Myles testimony, Link later testified that Myles was a liar and that Myles w as incre dibly rude , feisty, me an and like the Energ izer bun ny. Delease Ryce has been a Customer Agent with MVA since 1988. She was Myles supervisor at the Mondawmin office in May 2002. While she was on the telephone, Myles came to her office and told her that an attorney refused to show his identification. She had heard voices but couldn t hear the conversations. About five to ten minutes later, she left her off ice and w ent to Myles' work station. Both Myles and Link were going at it . Both were being rude to each other. Their voices were n ot in a co nversa tional to ne. She asked M yles to be q uiet and let me h andle it. She believes Link asked her - what took you so long? She replied that she was talking on the phone with two customers. She thinks Link said you need to hire a competent person. Link said explain to me why I had to wait ten minutes. She replied that you didn't produce any identification. She exp lained to Lin k that everyon e has to show identification. She aske d Link w hat kind of report do you need? S he then ga ve him the information he had requested. She testified that Link was not rude to her. She believes Myles was retaliating. Myles only retaliated when L ink said something to him. It was back and forth between Myles and Link. She stated th at Link asked h er for M yles nam e. When she did so. Link refe rred to Myles as Wilbert. She did not hear Link call Myles Sparky. Ryce is an African American. 7 The above summary of Link's testimony includes his testimony presented at the conclusion of Bar Counsel's case. In addition, Link did s tate that Myles w as incredibly rude to three customers who were in line before Link and he sensed that Myles was going to be trouble. He claims Myles demanded Link s identification and gave Link a hate sta re. Link states that Myles never told h im that Spa rky was a rac ially offensive e pithet. Link c laims th at he ge ts along with bl ack pe ople. 2. Findings of Fa cts After considerin g the testimo ny presented a t the hearing before this C ourt on July 30, 2003 and reviewing the exhibits admitted into evidence, this Court finds the following facts by clear and convincing evidence: 1. Link casts himself in the role or protector of the ordinary citizen. He believes his cause is just and necessary. His agenda is to expose what he perceives to be dual standards and unfair policies of governmental agencies. 2. This was not an isolated incident. Link had a pattern of past confrontations with agency perso nnel. 3. Link pursues his agenda with design and purposely provokes controversy utilizing tactics of sarcasm, verbal abuse, offensive and disrespectful language which is not protected by the First Amendment and had no substantial purpose. 8 4. Link s ag enda is mis guided an d his conduct was unprofessional and prejudicial to the administration of justice. 5. Link s anger needs to be controlled. 6. Link s testimony that he never raised his voice during this incident is not credible. 7. Myles is a public servant trying to do his job. 8. Myles was justifiably offended and embarrassed by Link s conduct, language and attitude. 9. Ryce's testimon y raised incons istencies in M yles testimony. Th is Court acc epts as credible R yce s testimony tha t Myles had also raised his voice and was retaliating to Link s verbal abuse and sarcasm. 10. Ryce is a pleasant woman and credible witness. She was acting as a peacemake r. 11. Link did n ot know that the nam e Sparky w as racially offen sive. Link d id believe he was condescending. The undersigned has no personal knowledge of whether the name Sparky is a racial epithet or is racially offensive. The undersigned has only heard the name in reference to a World War II radioman, electrician or the baseball manager, Sparky Anderson. Accordingly, the undersigned is unable to make a finding of fact in that regard. If indeed Sparky is racially offensive, its use is obviou sly unprofessional, totally 9 inappropriate and increases the seriousness and severity of the confrontation and the consequences. Whether Sparky is offensive or innocuous in and of itself depends upon the circum stances under w hich it is s aid, wh o said it a nd to w hom it is directed . The petitioner filed no exceptions to the hearing court s findings of fact and conclusions of law . It did file, h owev er, Petitio ner s R ecom mend ation fo r Sanct ions. Noting the hearing court s finding that the respondent s conduct was unprofessional and engaged in the pursuit of a misguided agenda, in which the respondent, casting himself as the protector of the ordinary citizen, pursues his agenda with design and purposely provokes controversy utilizing tactics of sarcasm, verbal abuse, offensive and disrespectful language which is not protecte d by the First Am endmen t and had n o substantia l purpose, it recommends that the respondent be suspended from the practice of law for thirty (30) days. In support of that recommendation, the petitioner relies on Florida Bar v. Martocci, 791 So. 2d 1074 ( Fla. 200 1), Matter of Golden, 496 S. E. 2d 619 (S. C. 1998) and Attorney Grievance Comm n v. Alison, 317 Md. 523 , 565 A. 2d 660 (1989). In Martocci, the Bar charged that Martocci made unethical, disparaging, and profane remarks to belittle and humiliate the opp osing p arty, Flore nce B erger, an d her atto rney ... and engaged in in unethical confrontation with the opposing party s father.7 791 So. 2d at 7 The court summarized the referee s findings as this count, as follows: [D]uring a recess to a hearing in the Berger proceedings, when Mr. Paton entered the courtroom, Martocci said here comes the father of the nut 10 1074. The off ensive conduct occurred, it alleged, in separate incidents during the representation of the husband in divorce proceedings and spanned a period of two year s. Id. at 1075. T he referee concluded that Martocci engaged in the charged conduct, which consisted of directing demeaning, insulting and intemperate remarks8 to the oppos ing party and her coun sel and threa tening, in open court, though court was not then in session, to beat that party s fa ther. Id. The court accepted the referee s sa nction reco mmend ation, publicly reprim anding Marto cci and placing him on two year s proba tion, wi th cond itions. Id. The conduct for which the respondent attorney in Golden was sanc tioned simila rly was engaged in in connection with his representation of clients in divorce proceedings, spec ifica lly, at two depositions. In the first, the depo sition of his client s former boyfriend, who apparently informed the husband s attorney of the former boyfriend s re lationship w ith the wife after it was terminated on advice of Golden, Golden s examination displayed, the case. Mr. Paton responded by approaching respondent and saying, If you have something to say to me, say it to my face, not in front of everyone he re in the courtroom. Thereafter, in open court and for all to see, Martocci closely approached Mr. Paton and threatened to beat him. Upon Ms. Figueroa 's attempt to interv ene, Ma rtocci told her to go back to Puerto Rico. T his con frontat ion onl y ended w hen a b ailiff en tered the courtro om. Florida Bar v. Martocci, 791 So. 2d 107 4, 1075 (2001). 8 On s ever al oc casions, Martocci ca lled t he opposing party a nu t case an d cr azy and, on one occasion, made demeaning facial gestures and stuck out his tongue at her and he r lawyer. Martocci, 791 So. 2 d at 1075. W ith respect to o pposing c ounsel, Martocci was found to have called her a stupid idiot and to have told her that she should go back to Puerto Rico. Id. In addition, th e court dete rmined tha t he repeated ly told her that sh e did not kn ow the law or the rules o f procedu re and nee ded to return to law school. Id. 11 Hearing Panel dete rmined, h is total disregard and failure to show a ny respect for th e rights of a third party. 496 S. E. 2d at 622. Moreover, it was satisfied that The extent, the intensity, the sarcasm and maliciousn ess, the unnecessary combativeness, the gratuitous threatening and intimidation, and the unequivocal bad manners of [Attorney's] conduct could have been for no purpose other than to emb arrass o r burde n [M r. Smith ]. Id. The second deposition, taken in a different case, was of the wife of Golden s client. After the deposition, she alleged that Golden said to her: You are a meanspirited, vicious witch and I don't like your face and I don't like your vo ice. What I'd lik e, is to be lock ed in a room with you naked with a very sharp knife. Id. at 621. Later, she stated, Golden commented: What we need for her [pointing to Mrs. Jones] is a big bag to put her in without the mouth cut out. Id. The hearing panel concluded that Golden, in an agitated voice and without an attemp t at humor, d id call Mrs. Jones mean spirited and state that someone should be locked in a room with her naked and that he would like to put a bag over her withou t a hole f or her m outh. Id. at 622. As to the first dep osition, the co urt agreed th at the attorney ha d violated S outh Carolina s version of Rule 4.4. It stated: Attorney's words speak for themselves.[9] Even if we assume that the 9 The o pinion catalog ues the offen sive qu estions G olden a sked th e depo nent. A few examples will suffice to give context to the court s comments: (1) [Attorney]: And who was your lawyer in your first divorce? [Smith]: Me. [Attorney]: Was that beca use you are cheap or you think you are 12 deposition witness was uncooperative, Attorney would not be justified abusing this witness in the manner illustrated above. The record further shows that Attorney interrupted S mith on nu merous o ccasions. M oreover, the audio recording reveals the v olume of Attorney's voic e was rep eatedly loud, an d his statements were s arcastic , rude, or otherw ise inap propria te. He acted in a threatening and demeaning manner. His conduct was outrageous and complete ly departed from the standards of our profession, much less basic notions of human decency and civility. The court concurred with the hearing panel s conclusion that Golden s conduct after the second deposition violated Rule 8.4 (d), as it was prejudicial to the administration of justice. Id. at 623. Noting the serious nature of the issues and highly charged atmosphere of the depos ition, the cou rt conclude d that Atto rney's comm ents only serve d to insult an adverse party. Id. The co urt impo sed as a sanctio n for b oth cou nts a pu blic repr imand . smart enough to be your own lawyer? Is that what you think? [Smith]: W hat kind of a question is that? [Attorney]: Its a good question. (2) [Attorney]: I don't need criticism from you. You ain't nearly as good as I am about answering questions or asking them. Just answer my questions, mister. * * * * (4) [Attorney]: You are coming across as an absolutely ridiculous pers on. B ut that's okay, yo u will learn the har d wa y. (5) [Attorney]: You are not smart enough to question my questions. You are not smart enough to even answer my questions. But do the best you can. * * * * (10) [Attorney]: Well, I am not going to argue with you. You are not smart enough to argue with. * * * * (16) Attorney referred to Smith, who had been a patient at Charter Hosp ital, as an "inmat e" of th e hosp ital. 13 Violations of Rules 4.4 and 8.4 (d) were found and sustained in Alison. The R ule 4.4 violation was premised on the respondent s issuance of a subpoena to a newspaper reporter for the purpose, the hearing c ourt found, of harass ing him and pre venting his reporting on the respondent s trial. 317 M d. at 539, 565 A. 2d at 668. The 8.4 (d) violation was premis ed, inter alia, on the behavior of the respondent toward District Court clerks. When the clerks refused, in compliance with a judge s order, to accept for filing papers tendered by the respondent post judgment, the respondent demanded, you have to take the fucking papers , and in their presence, used other profanities, including referring to the attorney for his oppon ent as a son of a bitch and an assho le. Id. at 531, 565 A. 2d at 663-64. As he left the area, he said fuck you to the supervisor. The respondent was suspended from the practice of law for ninety days. With respect to the Rule 4.4 violation, the Court rejected the only challen ge to its inap plica bility, the respon dent s argu ment, that it did not apply due to the fact that he was not representing a client, only himself. It recognized, in connection with the Rule 8.4 violation involving the verbal abuse of the District Court clerks, that there is a difference between hurling epithets during a jud icial proceed ing and en gaging in the same conduct outside the courtroom. 317 Md. at 536-537, 565 A . 2d at 666. The C ourt pointed out, nevertheless, that while [a]ttorneys are not prohib ited from u sing profa ne or vulg ar languag e at all times and under all circumstances, they are prohibited from using such language when to do so w ould be prejudicial to the administration of justice. Id. at 538, 565 A. 2d at 66 7, citing In Re 14 Williams, 414 N.W.2d 394, 397 (M inn.1987). Assuming that the respondent s words directed to the clerks were protected speech within the mean ing of the F irst Amen dment, the Court held that his speech and conduct on that occa sion did n ot co mply with the reaso nable, ne cess ary, and content-neutral restrictions imposed upon attorn eys by the Mar yland Rules o f Professio nal Cond uct. 10 Id. at 537, 565 A. 2d at 666-667. We explained: We have no h esitancy in concluding that Alison's conduct in his professional dealings with the cle rks was p rejudicial to the administration of justice . It is not difficult to visualize the damage to the court system and to the reputation of the le gal p rofe ssion tha t wo uld result if attorneys were free to conduc t their daily business with court clerks in the manner employed by Alison. This court has not only the authority but the obligation to censure conduct of this kind by an attorney. A s in the c ase of s peech within a courtr oom, the restrictions are content-ne utral, reasonable, necessary, and do not contravene First Amendment rights. Id. at 538, 565 A. 2d at 667. The respondent filed exceptions to the findings of fact and the conclusions of law of the hearing court. 11 To say that the respondent disagrees with the hearing court s findings 10 The Court rejected the respondent s argument that, because his speech was protected, he could not be sanctioned as a result of it, relying on Cantwell v. Connecticut, 310 U. S. 296, 309-10, 60 S. Ct. 900, 906, 84 L. Ed. 1213, 1221 (1940) ( Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument. ) and Chaplinsky v. New Hampshire , 315 U. S. 568, 571-572, 62 S. Ct. 766, 769, 86 L. Ed. 1031 (1942). 11 The plea ding containi ng th e respondent s ex cept ions is captioned, inad vertently, we are sure, Exceptions of Petitioner to Recommendations of the Circuit Court for Baltim ore Co unty. 15 of fact is to engage in understatement. Indeed, what he thinks of the hearing court s fact finding is summarized quite early in his submission: 2. The blatant piece of advocacy for the Commission masquerading as a Memorandum Opinion by Judge Cadigan is disgraceful. It goes beyond rubber-stamping and we ll into the realm of overt cheerleading for the Commission. It constitutes the actions of a shameless sycophant who has openly c olluded with th e Com mission to bring about a preord ained re sult. It is obvious that my complete testimony was disregarded by Judge Cadigan, except for those portions which could be regarded as detrimental to my case, which were ruthlessly recorded, and frequently distorted. Mr. Myles testim ony, which w as riddled w ith inconsistencies and numerous outright lies, was tre ated as h oly writ. Thereafter, the respon dent details at length the various deficiencies from which he believes the Memorandum Opinion suffers, characterizing them as errors, inaccuracies and intentional distortions. In addition, th e respond ent accuse s the hearing court of ab dicating its responsibility as f inder of fa ct. Concerning the court s conclusion that he violated Rule 4.4, the respondent maintains that the Rule either does not apply or is unconstitutionally vague. If the Rule does apply, he submits, his speech directed to M r. Myles and in criticism of th e govern ment, 12 was protected 12 The respondent boasts that he is prone to criticizing government agencies, and other institutions and individuals, when I feel that they are breaking the law. Elucidating, he says: I do th is in my ow n perso nal life, a nd I do it as part o f my law practice . When I took my oath as an attorney, I was under the impression that it was my duty to uphold the law and to resist illegality on the part of the governm ent, n ot to shill for a particula r adm inistratio n, po litica l party, minorit y group, o r politica lly useful g roup, su ch as go vernm ent em ployees. I am afforded protection for my activities by the First Amendment to the United States Constitution. One of the most sacrosanct aspects of that law, 16 speech, that did not disrupt the operations of a courthouse and, therefore, is not sanctionable. In any event, the respondent asserts: I had a substantial purpose in criticizing W ilbert Myles condu ct. I had n o intent t o emb arrass, d elay, or bu rden hi m. If such was the result of my decision to criticize a government, then the fault was his and not mine. I was delayed and burdened because of his illegal actions w hich did not even comply with his own training manual, let alone state or federal law. It is well settled that, in attorney discipline cases, we review the findings of fact of the hearing court to determ ine wh ether the y are base d on cle ar and c onvinc ing evid ence. See Attorney Grievance Comm n v. Post, 379 Md. 60, 74, 839 A. 2d 718, 736 (200 3); Attorney Grievance Comm n v. Dav is, 375 Md. 131, 158, 825 A. 2d 4 30, 446 (200 3); Attorney Grievance Comm n v. Barneys, 370 M d. 566, 577 , 805 A. 2d 1040, 10 46 (2002 ); Attorney Grievance Comm n v. Pow ell, 328 M d. 276, 287 , 614 A.2d 102, 108 (1992); Attorney Grievance Comm n v. Cleme nts, 319 Md. 289, 29 8, 572 A .2d 174 , 179 (1 990). Indeed, we conduct an independent review of the re cord. Attorney Grievance Comm n v. Wallace, 368 and one of the battlefields on which so many conflicts have raged against petty, tyrannical cour t systems that hav e tried unsu ccessfully to inv alidate the conce pt, is my right to criticize my govern ment. W hat the Co urt is going to do in this case does not merely have a chilling effect on those rights - it is a blizzard. It effectively completes the downward spiral begun in the Alison case and effectively deprives 30,000 Maryland attorneys of anything rem otely resemblin g human dignity. The C ommissio n seeks to give Rule 8.4 d an inte rpretation tha t is so broad, so intentionally illdefined, so vague, and so all-encompassing that it will make all of the other rules su perfluo us.... 17 Md. 277, 2 88, 7 93 A .2d 5 35, 5 42 (2 002). Moreo ver, w e hav e said, the hea ring court's findings of fact are prima fac ie correct and will not be disturbed unless they are shown to be clearly erroneous, Attorney Grievance Comm'n v. Garland, 345 Md. 383, 392, 692 A.2d 465, 469 (1997) (citing Attorney Grievance Comm'n v. Goldsborough, 330 Md. 342, 347, 624 A.2d 503, 505 (1993 )). See Attorney Grievance Comm n v. McCoy, 369 Md. 226, 234235, 798 A. 2d 11 32, 1137 (2002 ), and that we will not disturb those factual findings if they are based on clear and convin cing ev idence . Attorney Grievance C omm n v. Monfried, 368 Md. 373, 388, 794 A.2d 92, 100 (2002). On the other hand, the ultimate question, whether a lawyer has violated the professional rules, what, in other words, to make of those facts, rests w ith this C ourt. Post, 379 Md. at 74, 839 A . 2d at 726; Garland, 345 Md. at 392, 692 A.2d at 469; Attorney Grievance Comm'n v. Breschi, 340 Md. 590, 599, 667 A.2d 659, 663 (1995). See Attorney Grievance Comm n v. Sheinbein, 372 Md. 224, 240, 812 A. 2d 981, 990 (2001). The findings of fact in this case are not clearly erroneo us. In fact, ther e is ample evidence in the record, wh ich we have in depen dently rev iewed , to supp ort each of them . To be sure, the hearing court did not address expressly each of the defenses the respondent raised or specifica lly reject his various contentions concerning the co mplaining witness s cred ibility. As w e stated r ecently, see Attorney Grievance Comm n v. Braskey, 378 Md. 425, 446, 836 A. 2d 605, 618 (2003), that is not required. In Braskey, we explained: We are unable to say why the hearing judge omitted reference to respo ndent s testimony regarding the February calls. It may be that the judge did not believe 18 responde nt; it may have been an oversight. In any case, even if the judge believed respondent, the hearing judge is not required to recount all of the evidence presen ted at the hearing . See Attorney Grievance Comm n v. Granger, 374 Md. 438, 453, 823 A.2d 61 1, 620 (20 03) (noting that it is elementary that the hearing judge may elect to pick and choose which evidence to rely upo n ). The respondent s exceptions, to the extent that they challenge the hearing court s findings of fac t, are ove rruled. Turning to the question of w hether, as the petitioner contends, the respondent violated Rules 4.4 and 8.4 (d) or, as the respondent maintains, the rules do not apply or he did not violate them, we have been referred to no case, and we have found none, in which the conduct sought to be sanctioned occurred under circumstances similar to those sub judice. In the cases on which the petitioner relies, including Alison, and the cases we have found, see In the M atter of W eir, 668 N.E.2d 6 79 (Ind. 1996); In the Matter of Burns, 657 N.E.2d 738 (Ind. 1995 ); In the Matter of Vincenti, 554 A.2d 470 (N. J. 1989 ); In the Matter of McAlevy, 354 A.2d 289 (N. J. 1976 ); In the Matter of Mezzacca, 340 A.2d 658 (N.J. 1975), the offending conduct occurred during the actual litigation process or while interviewing clients or others in connection with litigation or potential litigation. Thus, in Burns, the conduct for which the attorney was sanctioned consisted of threatening behavior and remarks made to a party to the litigation during the recess of a pretrial hear ing. M ore spe cifically, th e attorne y said, inter alia, Let me . . . let me warn you about so mething. If you file anything w ith the bankruptcy court against me, I'll be asking for attorney fees and punitive damages. You have my word on it, . . . And the next time you write my client 19 a letter, I'm not going to file anything with the Court; I'm going to come over to your house and I'm going to hit you in the head w ith a baseba ll bat. Now, you may not be practicing law, but you know better than that. If I ever find out you wrote my client a letter again or sent him anything, you've got me to deal with. Do you understand: You better understand it right now, because I'm not going to tell you a second time. Now, that's my promise to you, right here on the record. I'm going to come over to your house and beat you half to death with a baseba ll bat. 657 N . E. 2d a t 739. L ater, the a ttorney, aw are that h e was s peakin g on the record , acknowledged that he was threatening the opposing party physically, adding: You'll either follow the rules or you 'll have to deal w ith me. Do you understand? And if I h ave to tell you tha t again, you're go ing to go out of here in a hospital van. Don't press your luck, . . . Don't press your luck. Because you're not going to like me if I'm angry. You won't walk away from it, I guarantee you. D on't look grav e to m e, be caus e if yo u do, you're a . . . (obsce nity). swe ar to Go d. Id. The cou rt conclude d that the resp ondent vio lated Rules 4.4 and 8.4 (d), reasonin g: his threatening behavior to a defend ant had no purpose other than to embarrass, delay, or burden such perso n. Condu ct of this natu re during th e course o f a legal pro ceeding is prejudicial to the administration of justice. Id. The conduct, described by the court as rude, intimidating and disruptive, for which the responde nt in Mezzacca was sanctioned - he was reprimanded - as in violation of Rules 4.4 and 8.4 (d), occurred be fore an administrative review board conducting departmental hearings in connection with misconduct charges brought against the attorney s client. 340 A. 2d at 658. The court summarized the offending conduct, as follows: When respondent appeared before the review board he challeng ed its right to hear the matter on the ground it was in no way legally constituted. He claimed 20 the sheriff was biased against his client and was just loo king for the opportun ity to get rid of h im. He ass erted that the p roceeding was a co nspiracy to viola te his client's civil rights and demanded that the hearing stop right now. During the course of the hearing respondent referred to the board as a Kangaroo Court. He said the hearing w as a waste of co unty money, perpetrated by a demented sheriff that thinks he is a King or a God. He characterized the members of the board as Nazis, that's what you are. He told one of the members of the board that You m ay have to answer to a higher tribunal than this before this is over, including the Grand Jury. He made numerous accusations as to lying and threatened several times to go to the prosecutor and have the person indicted. At one point respondent said: If you want M r. Jones to be indicted put him on the stand. Because I will see to it that he will be indicted . Believ e me, h e will be indicted . Id. at 658-59. In Vincenti , the misconduct, for which the respondent was suspended for three months and until further order of court, occu rred during a trial call and at the trial of a civil personal injury action that the respondent filed on behalf of his clien t. It consisted of engaging in a course of harassment and intimidation in an actively-litigated case in the Superior Court against his adversary and his witness, including challenging opposing counsel and his witness to a fight o n sever al occa sions, u sing lou d, abusive, an d profan e languag e against his adversary and opposing witness, and, on at least one occasion, employing racial innuendo. 554 A. 2d at 473. Accordin g to the cou rt: This con duct was pervasive a nd recurre nt, continuing from the tim e of the trial ca ll until after the filin g of a mo tion for a ne w trial. It indisputably was, or had the clear c apacity to be, disruptive , distracting, and unsettling to persons having significant responsibilities and important roles in the handling of the litigation. Id. 21 The responde nt in McAlevy was sanctioned, a reprimand, for misconduct during a criminal trial. At a bench conference out of the jury s hearing, the respon dent respo nded to the request by the D eputy Attorne y General to k eep his voice down with a threat of physical violence. Subsequently, during a chambers conference, in the course of an argument concerning the sco pe of a seques tration o rder, the respon dent, reacting to remarks of the Deputy Attorney G eneral, flew into a rage, sprang from his chair screaming, grabbed opposing counsel by the throat and began to choke him and a melee between the two men thereafter ensued u ntil broken u p with the a ssistance of the judge, h is law clerk and others. There were three incidents in Weir. In each of them, the atto rney, in the presence of a third party, in each instance a woman, fondled h is genitals and or masturb ated. In the firs t, he was meeting with a defendant in his capacity as Deputy Prosecuting Attorney to discuss resolution of her case by pre-trial diversion. In the second, the woman was a client who was consulting the respondent about filing bankruptcy. The third incident also involved a client, a student, who was at the time engaged in working off the fee she owed the respondent by babysittin g at his h ome. In this case, the conduct in which the respondent engaged and the remarks he made to the third party, while occurring during the representation of a client and in the course of obtaining information beneficial to that client, did not occur in the courthouse or involve court person nel. Neither were the parties to the litigation or their attorneys involved in the confrontation or the objects of the respondent s conduct or remarks. And it was not during 22 the actual litigation process or any one of its stages that the incident at issue took place. Rather, the confrontation was with, and the resulting conduct and remarks were directed at, an agent of the custodian of the records that the respondent was attempting to obtain and was the result of the respondent s perception that the requirements for accessing the information imposed by the agent w ere improp er and eve n illegal. To be sure, at the foundation of the rule of law is respect for the law, the courts and judges who ad minister it. And the attorneys who practice law and appe ar in the courts are officers of the c ourt. McAlevy, 354 A. 2d at 290-29 1. Consis tently, as Chief Justice Benham of the Ge orgia Sup reme Co urt pointed o ut: The practice of law is an h onorable profession that requires a high standard of conduct of its members. It is a high callin g wh ere c omp eten ce, civility, commu nity service, and public service are integral parts of the professional standards. It is not a profession where disrespectful, discourteous, and impolite conduct should be nurtured an d encour aged. Suc h condu ct should b e alien to any honorable profession. Those who hold them selves out as lawyers should realize that they help shape and mold pu blic opinion as to the role of the law and their role as lawyers. The law sets s tand ards for s ocie ty and lawyers serve as problem solvers when conflicts arise. To fulfill their responsibility as problem solvers, lawyers must exhibit a high degree of respect for each other, for the court system, and for the public. By doing so, lawyers help to enhance respect for and trust in our legal system. These notions of respect and trust are critical to the proper functioning of the le gal pro cess. Butts v. State, 546 S.E.2d 472, 48 5-86 (2001) (Be nham, C. J., Concu rring). It follows, the refore, and , indeed can not be gain said, that attorneys are required to act with common courtesy and civility at all times in their d ealings w ith those con cerned w ith the legal pro cess, McAlevy, 354 A. 2d at 29 0-291 , see Alison, 317 Md. at 537, 565 A.2d at 23 666, and that [c]onduct calculated to in timidate and distract those who, though in an adversarial position, hav e indepen dent respo nsibilities and important roles in the effective administration of justice cannot be countenanced. Vincenti , 554 A.2d at 473. Thus, [v]ilification, intimida tion, abuse and threats have no place in the legal arsenal[,] Mezzacca, 340 A. 2d at 659, common courtesy and civility being expected from a member of the b ar w heth er ap pear ing b efor e the State's highest court, some administrative body or proceedings ancillary to, but a necessary part of, the litigation . Id. This is so because the effectiveness of the adversary system depends on the effectiveness of adversary counsel and because conduct characterized by the undue and extraneous oppression and harassment of participants involved in litigation and consciou sly and intentionally engage[d] in perverts advoc acy. Vincenti 554 A . 2d at 47 3-74. M oreove r, Such conduct redounds only to the detriment of the proper administration of justice, which depends vitally on the reasonable balance between adversaries and on opposing co unsels' respect, trust, and knowledg e of the adversary system. There ca nnot be ge nuine resp ect of the ad versary system without respect for the adversary, and disrespect for the adversary system bespeaks disresp ect for th e court a nd the p roper a dminis tration o f justice . Id. at 47 4. An atto rney whose conduct in the practice of law is characterized by lack of civil ity, good manners and common courtesy tarnishes the image of what the bar stands for. McAlevy, 354 A. 2d at 291. As indicated, this case does not fall within this construct. The respondent was not dealing in this case with a person concerned with the legal process; the complainant is not a party to litigation in w hich the resp ondent is attorney, nor is he a witness or opposing 24 counsel. Moreover, the respondent s interaction with the complainant was not during the course of litigation or court proce edings; w hile the respo ndent w as represen ting a client, he was gath ering inf ormation that m ay become evidence in a trial and, thus, he was engaged solely in preparation for litigation, rather than actually being involved in litigation. Nevertheless, it is true, this Court has interpreted the phrase, prejudicial to the administration of justice broader than the practice of law, to encompass conduct the lawyer engages in outside his or her role as a law yer. Attorney Grievance Comm'n v. Childress, 360 Md. 3 73, 383 , 758 A .2d 117 , 122 (2 000). See Attorney Grievan ce Com m n v. Sh einbein, 372 Md. 224, 251 , 812 A2d 98 1, 997 (2002) ( this Court has found conduct to be prejudicial to the admin istration of justic e in violation of Rule 8.4(d) when there has either been conduct that is criminal in nature or conduct that relates to the practice of law ); Attorney Grievance Com m'n v. Black, 362 Md. 574, 766 A.2d 119 (2001) (finding a Rule 8.4 (d) violation for possession of cocaine); Attorney Grievance Comm'n v. Atkinson, 357 Md. 646, 745 A.2d 1086 (20 00) (failing to file, and pay, pe rsonal inco me taxes); Atto rney G rievance Com m'n v.Painter, 356 Md. 293, 739 A.2d 24 (1999) (comm itting acts of domestic violence); Attorney Grievance C ommission v. G ilbert, 356 Md. 249, 251, 739 A.2d 1, 2 (1 999)( To be sure, it cannot be gainsaid that the possession of cocaine b y a lawyer, an off icer of the co urt, especially when it results in a conviction and probation is prejudicial to the administration of justice. ). See also Attorney Grievance Comm'n v. Richardson, 350 Md. 354, 368, 712 A.2d 525, 532 (1998), in which we said: 25 The respondent argues that to be conduct that is prejudicial to the administration of justice, the act must be one that hinders or otherwise interferes with a judicial proce eding of w hich he is a p arty or represen ts a par ty. This Court has never so narrowly defined Rule 8.4(d). We have instead recognized that conduct that impacts on the image or the perception of the courts or the legal profession, see Attorney Griev. Comm'n v. Alison, 317 Md. 523, 536, 565 A.2d 660, 666 (1989) and that en genders d isrespect for the courts and for the lega l profession may be preju dicial to the administration of justice. Lawyers are officers of the court and their conduct must be assessed in that light. We have suggested, however, but have not tested whether, a lawyer's non-criminal, purely private conduct might be a basis f or discip line und er Rule 8.4 (d). See Childress, 360 Md. at 385-86 . (suggesting that, while R ule 8.4(d) ha s been ap plied in our c ases only to conduct which is related to the practice of law, directly or indirectly, or when there has been a criminal conviction or conduct which is criminal in n ature, a lawyer's n on-crimina l, purely private conduct might be a basis for discipline under the Rule, noting specifically that the harm, or potential harm, in a stranger soliciting sex over the Internet to young girls, after imploring them to keep the meeting a secret from their parents, is patent ). Because the conduct in Childress was arguably criminal, the issue was not addressed in that case. The issue must be addresse d in this case. The respon dent s conduct, as found by the hearing court, was rude, boorish, insensitive, oppressive and certainly insulting, but it was not even arguably criminal. Nor was the re sponden t engaged in a purely personal p ursuit. Although he was representing a client at the time of the incid ent, that fact w as not readily apparent or sought to be emphasized. complainant that he was a lawyer. Indeed, the respondent resisted informing the A confrontation, with resulting similar behavior by the 26 respon dent, like ly would have o ccurred in any ev ent. To be sure, conduct of the kind exhib ited by the respo ndent in this case when directed toward a memb er of the pu blic by a lawyer negatively affects the perception of lawyers and, in that sense, may breed disrespect for the lega l profes sion an d poten tially for the courts. See Alison, 317 Md. at 53 6, 565 A. 2d at 66 6. Undoubted ly, it reinforced the complainant s already negative view of lawyers. As important as civility and professionalism are as professional standards and as desirable as it is that civility and common courtesy be the rule of the day in the interperson al relations be tween citize ns, it is neither fe asible nor d esirable that every social interaction between a lawyer and a non-lawyer be regulated to insure that the lawyer acts, in ea ch such in stance, with the requisite civil ity and courtesy. 13 Only when such purely private conduct is criminal or so egregious as to make the harm, or potential harm, flowing from it patent will that conduct be considered as prejudicing, or being prejudicial to, the administration of justice. This Court considers the re spondent s conduct in this case to be most inapp ropriate and unfortunate, and it is conduct that we do not condone. Nevertheless, it being neither 13 In response to the Report of the Task Force on Professionalism, chaired by the Honorable Lynne Battaglia, this Court authorized, on December 16, 2003, the formation of a Professionalism Commission. Its purpose is to develop a consensus about the definition of professionalism and to examine ways to promote professionalism among Maryland s lawyers and to provide sustained attention and assistance to the task of ensuring that the practice of law remains a high calling, enlisted in the service of client and public good. It is not intended to, and will not, be a vehicle for the micromanagement of all aspects of the legal profession, including purely private activities and condu ct. 27 criminal nor conduct of the kind that the harm or potential harm flowing from it is patent, we hold that it is not conduct that is prejudicial to the administration of justice and, thus, is not sanctionable. The petition for disciplinary action is dismissed. IT IS SO ORDERED. 28 IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG No. 97 September Term, 2003 ______________________________________ ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. HAROLD S. LINK, JR. ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Eldridge, John C. (retired, specially assigned) JJ. ______________________________________ Conc urring O pinion by Wilne r, J., which Battaglia, J., joins ______________________________________ Filed: March 19, 2004 I join in the Court s Opin ion, because I believe that, how ever inappropriate Link s behavior was , it did not c onst itute a vio latio n of MR PC 8 .4(d). I w rite separ ately o nly to express my indignation over Link s behavior in this Court during argument on Bar Cou nsel s petition. On more than one occa sion, he acc used De puty Bar Cou nsel of su born ing p erjury, a criminal offense in this Sta te. He was questioned about that, whether his accusation was mere (but nonetheless grossly inappropriate) rhetorical flourish or whether he really meant to accuse bar coun sel of criminal behavior, and he made clear that it wa s the latter. There is utterly no basis in the record for such an accusation. Link s unsupported accusation cannot be used against him in this proceeding, but I find it inexcusable and deplorable. If Link continues to act as he has done, belittling other people and mak ing unfounded accusations against them, he is surely headed for additional problems with Bar Coun sel and with th is Cou rt. Judge Battaglia has authorized me to state that she joins in this concurring opinion. -1- Circuit Co urt for Baltim ore Cou nty Case No. 03-C-03-001185 IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG No. 97 September Term, 2002 ______________________________________________ ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. HAROLD S. LINK, JR. _______________________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Eldridge, John C. (retired, specially assigned), JJ. _______________________________________________ Conc urring o pinion by Rake r, J., in which Eldridge, J., joins ______________________________________________ Filed: March 19, 2004 Raker, J., with whom Eldridge, J. joins, concurring: I concur in the judgment of the Court and would dismiss the petition because Bar Counsel has not sustained its burden to prove by clear and convincing evidence that respondent used a means in representing a client that had no substantial purpose other than to embarrass, delay or burden a third person, in violation of Rule 4.4. Respondent s conduct, although highly inappropriate and unprofessional, was not unethical subjecting him to discipline under the Rules of Professional Conduct. I. I disagree with the majority s conclusion that because respondent, although he was representing a client, was not dealing with a person concerned with the legal process, this case does not fall within the construct of Rule 4.4, Respect for Rights of Third Persons. See maj. op. at 24. As I read the majority opinion, the majority determines that in order to come within the ambit of Rule 4.4, the complainant must be a party to the litigation in which the respondent is an attorney, a witness or opposing counsel. Id. at 24-25. Moreover, gathering information in preparation for a trial or conduct in preparation for litigation would not fall within the Rule. It seems to me that Rule 4.4 is broad enough to cover the conduct of a lawyer who, while acting in that capacity, interacts with a State employee and uses means in representing a client which have no substantial purpose other than to embarrass, delay or burden a third person. In considering whether respondent violated Rule 4.4, we look at the purpose of his actions rather than the effect. Maryland Rule 4.4 focuses on the substantial purpose of the lawyer s actions, and not on the effect the conduct might have upon the third person. See American Bar Association, Annotated Model Rules of Professional Conduct R. 4.4 cmt. at 424 (4th ed. 1996); Idaho State Bar v. Warrick, 44 P.3d 1141, 1145 (Idaho 2002); Mississippi Bar v. Robb, 684 So. 2d 615, 621 (Miss. 1996). I agree with the majority s analysis that respondent s confrontation in the matter sub judice was with, and the resulting conduct and remarks were directed at, an agent of the custodian of the records that the respondent was attempting to obtain and was the result of the respondent s perception that the requirements for accessing the information imposed by the agent were improper and even illegal. Maj. op. at 23. Although respondent was rude, his purpose was not to embarrass, delay or burden a third person. Accordingly, Bar Counsel has not proven a violation of the Rule. II. I also do not subscribe to the majority s construct of Rule 8.4(d). The majority sets out a two-prong test to determine if a lawyer s conduct comes within the Rule: Only when such purely private conduct is criminal or so egregious as to make the harm, or potential harm, flowing from it patent will that conduct be considered as prejudicing, or being prejudicial to, the administration of justice. Maj. op. at 27 (emphasis added). I agree that the Rule covers criminal conduct. I do not agree, however, with the view that the Rule is -2- applicable to any conduct which is so egregious as to make the harm, or potential harm, flowing from it patent. The phrase prejudicial to the administration of justice is not defined in the Rules of Professional Conduct, nor do the rules or our case law give guidance for application to specific circumstances. The standard embraced by the majority is ambiguous and elusive. It smacks of I can t define it but I know it when I see it. Simply because some conduct is so obviously violative of the Rule and prejudicial to the administration of justice does not, in my view, save the Rule. It is unfair to lawyers in the State to be subject simply to the moral barometer of four judges of this Court. Due process requires more a lawyer is entitled to have fair notice of conduct which would subject him or her to discipline under the Rules of Professional Conduct. The standard adopted by the Court today fails to give fair notice. I would construe Rule 8.4(d) to apply to criminal conduct or, when dealing with private conduct, such conduct that is in some way connected to the practice of law. See Attorney Grievance Comm n v. Sheinbein, 372 Md. 224, 812 A.2d 981(2002) (Eldridge, J., dissenting, joined by Raker, J.). Judge Eldridge pointed out that, until Sheinbein, this Court has found conduct to be in violation of Rule 8.4(d) only when there has been conduct that is criminal in nature, or when the lawyer s conduct concerned his own legal practice or his relationship with his clients. Id. at 276-77, 812 A.2d at 1011-12. In sum, I do not subscribe to the majority s two-prong description of the various types of conduct which violate Rule 8.4(d) because that description does not capture an essential -3- element, which is that the conduct must either be criminal conduct, or conduct that has some connection, directly or indirectly, to the practice of law. Judge Eldridge authorizes me to state that he joins in this concurring opinion. -4-

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.