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Opinions – Maryland Court of Appeals: 9/6/11
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BOTTOM LINE: In a declaratory judgment action in which plaintiff raised administrative procedure issues relating to defendant’s standing to challenge a decision by the County Planning Board, the Court of Appeals was unable to reach the issues presented because plaintiff failed to exhaust its administrative remedy.
CASE: Renaissance Centrol Columbia, LLC v. Broida, No. 104, Sept. Term, 2010 (filed Aug. 19, 2011) (Judges Bell, Harrell, Battaglia, Greene, Murphy, Adkins & ELDRIDGE (Retired, Specially Assigned)). RecordFax No. 11-0819-21, 20 pages.
FACTS: Renaissance owned a 1.46 acre parcel of land in Howard County, Maryland. In 2005, Renaissance submitted to the Howard County Planning Board a site development plan, proposing to construct on the 1.46 acre parcel a 22-story mixed use, retail and condominium building containing 160 residential units, 10,697 square feet of retail space, and a four-level parking garage. Joel Broida and three other persons filed with the Planning Board a motion to deny approval of the site development plan. Broida lived in a condominium directly across the street from Renaissance’s 1.46 acre parcel of land, and his windows faced the parcel.
After holding two public meetings, the Planning Board approved the site development plan with some minor changes. Broida and the other three opponents appealed the Planning Board’s decision, and, pursuant to the Howard County Code, the appeal was heard by a Howard County hearing examiner. Renaissance filed a motion to dismiss the appeal on the ground that the four opponents lacked standing under the Howard County Code. The hearing examiner dismissed the appeal, holding that all four opponents lacked standing. The opponents appealed to the Howard County Board of Appeals pursuant to §16.304(a) of the Howard County Code. Renaissance filed with the Board a motion to dismiss, arguing that the four opponents of the site development plan lacked standing to appeal because they were not “aggrieved.”
The Board of Appeals held an evidentiary hearing extending over four days in December 2006 and January 2007. One member of the five-member Board had resigned because of illness, and the Board therefore conducted the hearing with only four members. None of the parties objected to the Board’s acting with only four members. On January 22, 2007, the Board, at an open meeting, deliberated on the motion to dismiss and unanimously concluded that the three opponents, other than Broida, did not have standing. The four members then discussed Broida’s standing, and took a straw vote which indicated that two members believed that Broida had standing and two members believed that Broida lacked standing. The members of the Board of Appeals then went into a closed session to determine how to proceed.
Two new members of the Board, one replacing the member who had resigned because of illness and one replacing a member who desired to retire, had been appointed but had not been confirmed. They were scheduled to be confirmed on Feb. 5, 2007. The Board, after its closed session, announced that it would not then decide Broida’s standing and that, upon their confirmation, the two new members would listen to the tape recording of the four-day hearing and would review the record. The new Board would on Feb. 12, 2007, reconvene, deliberate, and vote on Broida’s standing to appeal to the Board.
Both Renaissance and Broida objected to the Board’s decision to re-vote on Feb. 12, 2007, with the new members. On Feb. 7, 2007, Renaissance wrote a letter to the Board setting forth its objection. Also on Feb. 7, Renaissance filed in circuit court a complaint for a declaratory judgment, naming as defendants: Howard County Board of Appeals; Howard County, Maryland; and Joel Broida. Renaissance sought a judgment declaring that the Board’s 2 to 2 decision on January 22, 2007, was a final decision, and that that decision required the Appeal to the Board to be dismissed. Upon the filing of its declaratory judgment complaint, Renaissance sent a notice to the Board of Appeals pointing out that §2.204(j) of the Howard County Code required that any hearing in the case be stayed during the pendency of the judicial proceedings, and the Board voted to continue the case because of the judicial proceedings.
In addition, on Feb. 12, 2007, Renaissance brought a separate action by filing, in circuit court, a Petition for Judicial Review under Maryland Rule 7-201, et seq. On June 5, 2007, the circuit court, granting a motion for a stay, ordered that the judicial review action be stayed pending resolution of the declaratory judgment action. Renaissance subsequently filed in circuit court a motion for summary judgment. The Howard County Board of Appeals responded to Renaissance’s complaint and motion for summary judgment, arguing that the Board had not rendered a final decision, that Renaissance had failed to exhaust its administrative remedy, that the Board’s contemplated action was legally proper and in accord with the Howard County Code, and that the declaratory judgment action should be dismissed. Broida filed a motion to dismiss, also arguing that the Board had not rendered a final decision and that Renaissance had failed to exhaust its administrative remedy.
The circuit court granted the plaintiff’s motion for summary judgment and denied the defense motions. The circuit court subsequently denied a motion by Broida which was, in substance, a motion for reconsideration. Broida appealed to the Court of Special Appeals, which reversed the circuit court’s judgment and directed that the case be remanded to the Board of Appeals for further proceedings.
Renaissance appealed to the Court of Appeals, which reversed the decision of the Court of Special Appeals and remanded the case.
LAW: The Howard County Board of Appeals was established pursuant to, and governed by, Art. 25A, §5(U). The administrative remedy before a board of appeals is subject to Art. 25A, §5(U), and thus the administrative remedy in the present case was either exclusive or primary. Maryland Reclamation Associates v. Harford County, 382 Md. 348, 364-365 n. 6 (2004). Like other exclusive or primary administrative remedies, the remedy provided by §5(U) must be exhausted before resort to the courts. Holiday v. Anne Arundel County, 349 Md. 190, 201 (1998).
Where there exists a remedy before a charter county’s board of appeals under Art. 25A, §5(U), an aggrieved party must invoke and exhaust the administrative and judicial review remedy provided by §5(U). Hope v. Baltimore County, 288 Md. 656, 657-658 (1980). Overlapping the principle that administrative remedies must be exhausted is the requirement of a final administrative decision. If there is no final administrative decision in a case before an administrative agency, there is ordinarily no exhaustion of the administrative remedy. In the absence of a statutory provision expressly authorizing judicial review of interlocutory administrative decisions, and in the absence of an interlocutory administrative decision with immediate legal consequences causing irreparable harm, the parties to the controversy must ordinarily await a final administrative decision before resorting to the courts. Dorsey v. Bethel A.M.E. Church, 375 Md. at 74-75. Consequently, apart from these two delineated exceptions, a final administrative decision is a prerequisite for resorting to the courts. See, e.g., Willis v. Montgomery County, 415 Md. 523, 534 (2010).
Renaissance did not challenge the general principle that an administrative decision must be final before resort to the courts, but instead argued that, because Broida took the position before the Board that its 2-2 vote was a final decision in Broida’s favor, Broida was estopped from arguing that the Board failed to render a final decision. Renaissance’s reliance upon Broida’s position before the Board of Appeals, and upon the omission in the certiorari petition of any issue concerning the exhaustion of administrative remedies and absence of a final administrative decision, was entirely misplaced. Because of the important public policy involved, the Court of Appeals will address sua sponte the related issues of primary jurisdiction, exhaustion of administrative remedies, finality of administrative decisions, and the availability of declaratory judgment actions. These are threshold issues which the Court will consider regardless of the positions that have been taken by the parties.
Thus, while the failure to invoke and exhaust an administrative remedy does not ordinarily result in a trial court’s being deprived of fundamental jurisdiction, because of the public policy involved, the matter is for some purposes treated like a jurisdictional question. Consequently, issues of primary jurisdiction and exhaustion of administrative remedies will be addressed by the court sua sponte even though not raised by any party. Board of Education for Dorchester County v. Hubbard, 305 Md. 774, 787 (1986). With regard to the general requirement in Rule 8-131(b)(1) that the Court of Appeals ordinarily will consider only an issue that has been raised in the petition for certiorari or any cross-petition, there are a few well-established exceptions to the principle embodied in Rule 8-131(b), and one of them is that the Court will address, sua sponte, an issue concerning exhaustion of an administrative remedy or primary jurisdiction. Montgomery County v. Broadcast Equities, Inc., 360 Md. 438, 450-451 n. 7 (2000). As such, there was no merit in Renaissance’s arguments that Broida was estopped from contending that the administrative remedy had not been exhausted and that the exhaustion issue was not included in the certiorari petition.
Because there was no final administrative decision, both the circuit court and the Court of Special Appeals erred in reaching the merits of this case; rather, the declaratory judgment action should have been dismissed.
Accordingly, the judgment of the Court of Special Appeals was reversed and the case remanded to the circuit court with directions to dismiss the action.
COMMENTARY: The Declaratory Judgments Act, in Maryland Code (1974, 2006 Repl.Vol.), §3-409(b) of the Courts and Judicial Proceedings Article, provides that if a statute provides a special form of remedy for a specific type of case, that statutory remedy shall be followed in lieu of a proceeding under this subtitle. Thus, where the General Assembly has provided an exclusive or primary administrative remedy and judicial review remedy, §3-409(b) precludes a declaratory judgment. Specifically with regard to a Board of Appeals created pursuant to the Express Powers Act, Art. 25A, §5(U), a declaratory judgment action will not lie, and the administrative and judicial review action provided by §5(U) must be followed. Holiday v. Anne Arundel County, 349 Md. 190, 201-204 (1998).
In this case, therefore, even if there had been a final administrative decision (which there was not), a declaratory judgment action would not lie to review a decision of the Howard County Board of Appeals.
PRACTICE TIPS: A stay of proceedings by a County Board of Appeals while the case is in the courts is not a final administrative decision. For an administrative agency to stay proceedings while a case is before the courts is a common occurrence, and does not excuse a failure to exhaust administrative remedies.
BOTTOM LINE: Attorney-client privilege was sufficiently invoked in prosecution for embezzlement by fiduciary, where defense counsel advised the court that the State’s witness was at one point representing both defendant and the victim and that inasmuch as the witness was defendant’s lawyer, there was the issue of attorney-client privilege.
CASE: Greenberg v. State, No. 144, Sept. Term, 2010 (filed Aug. 17, 2011) (Judges Bell, Harrell, BATTAGLIA, Greene, Murphy, Adkins & Barbera). RecordFax No. 11-0817-22, 21 pages.
FACTS: Roger Greenberg was indicted and tried before a jury in Montgomery County on five counts related to the care of Evelyn Zucker, to whom Greenberg had been married. In July of 2009, after the marriage but prior to Greenberg’s indictment, Robert McCarthy was appointed as Zucker’s guardian. Thereafter, McCarthy initiated proceedings seeking to annul Greenberg’s marriage to Zucker, to void a deed prepared by Greenberg’s former attorney, Mark Hessel, that conveyed a tenancy by the entireties interest in Zucker’s home to Greenberg, to invalidate a will that Hessel had prepared for Zucker which would benefit Greenberg, and to remove Greenberg as Zucker’s healthcare agent. During the annulment hearing, McCarthy called Greenberg and Hessel as witnesses.
During the subsequent criminal proceeding against Greenberg, the State sought to call Hessel as a witness in its case-in-chief. Greenberg’s attorney advised the court that Hessel had acted as Greenberg’s attorney and moved to exclude Hessel’s testimony on the basis of the attorney-client privilege. The court overruled the motion, and Greenberg was convicted of exploitation of a vulnerable adult, embezzlement, and theft.
Greenberg appealed to the Court of Special Appeals, however while that appeal was pending, the Court of Appeals granted certiorari and reversed the convictions and remanded the case for a new trial.
LAW: Greenberg sought reversal of his circuit court convictions, arguing that the trial judge erred in permitting Mark Hessel to testify as a part of the State’s case-in-chief without conducting a preliminary inquiry regarding the surrounding facts and circumstances of Hessel’s previous representation of Greenberg, the complete circumstances related to Greenberg’s possible waiver of privilege, and the scope of the prosecution’s proposed use of the evidence at trial. Specifically, Greenberg raised the issue of whether the circuit court committed prejudicial error in admitting the testimony of Greenberg’s former civil attorney in violation of the attorney-client privilege when it erroneously held that Greenberg categorically waived the attorney-client privilege at trial by testifying in an earlier annulment proceeding about communications with his attorney and by failing to object to the admission of the attorney’s testimony at the same proceeding.
The embodiment of the common law attorney-client privilege is contained in Section 9-108 of the Courts and Judicial Proceedings Article, Maryland Code (1974, 2006 Repl.Vol.), which provides that a person may not be compelled to testify in violation of the attorney-client privilege. The privilege operates as a rule of evidence to prevent the disclosure of a confidential communication made by a client to his attorney for the purpose of obtaining legal advice. Though not given express constitutional protection, the attorney-client privilege is essential to the exercise of constitutional guarantees. Harrison v. State, 276 Md. 122, 133-34, (1975). The privilege, however, is not impregnable and must be strictly construed to protect only those attorney-client communications pertaining to legal assistance and made with the intention of confidentiality. Newman v. State, 384 Md. 285, 302 (2004). A client may waive the privilege, whether intentionally or unintentionally, if the client’s conduct touches a certain point of disclosure when fairness requires the privilege to cease. Parler & Wobber v. Miles & Stockbridge, 359 Md. 671, 692 (2000).
The quantum or quality of the attorney-client privilege has not been directly discussed by the Maryland Court of Appeals since Newman, and few sister states have directly considered the issue of what threshold showing is necessary to invoke the privilege. The Supreme Court of Illinois has opined that the privilege is properly invoked, presumptively, if the proponent shows that there was an attorney-client relationship in which an attorney and client have communicated in a professional capacity. In re Marriage of Decker, 153 Ill.2d 298 (Ill.1992). Various federal courts also have considered the attorney-client privilege presumptively invoked upon a showing that an attorney and a client communicated in a professional capacity. See Steiner v. United States, 134 F.2d 931(5th Cir.1943).
In the present case, at the outset of trial and out of the presence of the jury, Greenberg’s lawyer made a motion in limine to exclude Hessel’s testimony, proffering that Hessel had represented both Greenberg and Zucker in a legal capacity when the events underlying the instant case took place. Later during trial, when the State called Hessel to the witness stand, Greenberg objected, claiming that there had been an attorney-client relationship between Hessel and Greenberg, and that the things that they had discussed were privileged.
Thus, Greenberg’s proffer of the privilege was more than mere speculation that Greenberg was a client of Hessel; rather, Greenberg’s counsel explicitly advised the court that Hessel was at one point in 2008 representing Zucker and Greenberg, and that given that Hessel was Greenberg’s lawyer, the issue of attorney-client privilege certainly arose. And, later during the trial, Greenberg’s counsel again informed the court that Greenberg had been involved in an attorney-client relationship with Hessel, and that the things that they had discussed with each other were privileged. As a result, the attorney-client privilege was sufficiently invoked to trigger further proceedings.
Therefore, the next question before the Court was whether the trial court sufficiently explored the nature and extent of the privilege and any commensurate waiver. In a footnote to its opinion, the Newman Court explored what type of inquiry is appropriate, stating that once the privilege is invoked, the trial court should make a preliminary inquiry and hear testimony relative thereto out of the presence of the jury, looking at the surrounding facts and circumstances. In this preliminary inquiry, the trial court will decide as a matter of law whether the elements of the privilege are present and if so, whether the communication, absent an exception, is privileged. This threshold question must be determined without requiring the disclosure of the communication at issue. Id. at 313 n. 7.
Here, Greenberg asserted that, once he invoked the privilege, the judge should have inquired, through an evidentiary hearing or through proffers, into the surrounding facts and circumstances of Hessel’s representation of Greenberg, the complete circumstances related to Greenberg’s possible waiver of privilege, and the scope of the prosecution’s proposed use of the evidence at trial. When the attorney-client privilege was invoked, the judge heard a proffer from the State that, in a civil hearing relating to the annulment of Zucker’s marriage to Greenberg, Greenberg had already testified about the relationship that he had with Hessel. The judge then heard legal argument on waiver and reviewed a transcript of Greenberg’s testimony at the annulment hearing before ruling that Greenberg waived the privilege when he testified at the previous judicial hearing.
The process by which privilege is determined is governed by Maryland Rule 5-104(a),4 which requires a preliminary determination, but not an evidentiary hearing. However, while an evidentiary hearing is not required under Maryland Rule 5-104, there must be findings to satisfy not only the existence, but the non-existence and waiver of the attorney-client privilege. See In re Sealed Case, 737 F.2d 94, 97 (D.C.Cir.1984); see also United States v. Schwimmer, 892 F.2d 237 (2d Cir.1989). In this case, although the trial judge did review the transcript of Greenberg’s testimony at the annulment hearing prior to the time that he determined waiver, the judge did not determine the nature and scope of privileged communication, nor did he explore with specificity what testimony the State sought to solicit from Hessel or utilize those details to determine the extent of any waiver.
From the record, the Court of Appeals could determine what testimony the State sought to elicit from Hessel. However, the trial court could not, from what it had before it with respect to Greenberg’s testimony at the annulment hearing, determine the nature and extent of the attorney-client privilege, nor its waiver. Therefore, the trial judge’s determination of waiver was premature. This premature determination of waiver likewise precluded any ability to determine whether any other exception to the privilege existed, such as the crime-fraud exception.
Due to the error in the determination of the waiver of the attorney-client privilege, the Court of Appeals reversed the circuit court’s decision and remanded the case for a new trial.
COMMENTARY: The State further contended that even if the trial court did commit any error, that error was harmless. A reviewing court may deem a trial error harmless only where, on an independent review of the record, the court is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict. Bellamy v. State, 403 Md. 308, 332 (2008).
In this case, however, Hessel’s testimony was an important part of the State’s introductory statement to the jury and discussed in closing. Hessel testified not only about the benefit that Greenberg would receive under the newly drafted will, but also the lengths to which Greenberg went to determine the extent of Zucker’s assets. Thus, Hessel’s testimony coupled with the State’s references to it in opening and closing could in no way be viewed as harmless.
Criminal Law
BOTTOM LINE: Defendant’s convictions for perjury and false information in a firearm application could be founded upon his failure to disclose a court order even though that order was later reversed.
CASE: Furda v. State, No. 100, Sept. Term, 2010 (filed Aug. 17, 2011) (Judges Bell, Harrell, Battaglia, Greene, Murphy, ADKINS & Barbera). RecordFax No. 11-0817-20, 26 pages.
FACTS: After responding to a domestic altercation between Mark Furda and his wife, police seized Furda’s extensive collection of weapons and transported him to the hospital for a mental health evaluation. Furda was later transferred to a behavioral health facility. Upon release, Furda requested the return of his firearms. A judge denied the request on the grounds that Furda had been committed to a mental institution and was therefore prohibited from possessing a firearm. Furda asked the judge to reconsider, but did not await the judge’s response before traveling to a gun store to acquire a new gun. When filling out the application to purchase a firearm, Furda certified, under penalty of perjury, that he had not been committed to a mental institution.
Furda’s application was denied, and the state subsequently charged him with perjury and false information in a firearm application. A trial court later convicted him of these two offenses. In two separate cases, Furda appealed both the judge’s denial of his motion for the return of his firearms and his two convictions. In one case the Court of Special Appeals reversed the trial court’s denial of Furda’s motion for the return of his weapons, but in the other, it affirmed Furda’s convictions. In the latter case, the Court held that the judge’s erroneous order could still serve as a predicate for perjury and false information in a firearm application because the order was in effect at the time Furda completed the application under oath.
Furda appealed to the Court of Appeals, which affirmed Furda’s convictions for perjury and false information.
LAW: In Maryland, a person may not knowingly give false information or make a material misstatement in a firearm application for a dealer’s license. Md.Code (2003), §5-139(a) of the Public Safety Article (“PS”). Additionally, a person commits perjury if he willfully and falsely makes an oath or affirmation as to a material fact in an affidavit required by any state, federal, or local law. Md.Code (2002, 2007 Cum.Supp.), §9-101 of the Criminal Law Article (“CL”). The Maryland Criminal Pattern Jury Instructions (“MPJICR”) address the requirements of proving perjury in an affidavit, stating that in order to convict the defendant of perjury by affidavit, the State must prove: (1) that the defendant declared under the penalty of perjury that a written document was true; (2) that the writing contained a false statement; (3) that the false statement was given willfully, rather than as a result of confusion or honest mistake; (4) that the defendant knew the statement was false at the time it was given; and (5) that the false statement was material, that is, it related to the reason why the affidavit was prepared. MPJI-CR 4:26:1.
Here, Furda argued that his statement on the state firearm application that he had not been committed to a mental institution, made while he was under a court order deeming him to have been “committed,” was sufficient evidence to support a conviction for perjury and false statement, given that the court order was later overturned on appeal. Furda argued that his answer to the application question was truthful in hindsight, in light of the fact that the Court of Special Appeals subsequently reversed the original order denying Furda the return of his firearms. In essence, Furda claimed that the intermediate appellate court’s decision should be applied retroactively to the time he completed the application.
To support his claim that the decision of the Court of Special Appeals should apply retroactively, Furda cited numerous cases in which courts have retroactively applied decisions that create a new standard or strike down an existing law as unconstitutional. See, e.g., United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005). However, these cases did not involve the question of whether a defendant made an intentionally false statement under oath, a crime that calls for a court to focus on Furda’s intent and the facts as they existed at the time he filled out the application. In a more analogous case, United States v. Seidenberg, the District Court of Maryland upheld a defendant’s convictions for making a false statement in connection with the acquisition of a firearm and unlawful receipt of a firearm by a person who has been committed to a mental institution, even though his prior commitment to a mental institution may have been constitutionally infirm. United States v. Seidenberg, 420 F.Supp. 695 (D.Md.1976).
Similarly, Furda could not justify a false statement on his application because of his lack of knowledge how the circuit court had disposed of his Motion for Reconsideration of the original Denial Order or that the Denial Order would be overruled on appeal. It is settled law that a court’s decision is binding on the parties until it is overturned. See Roessner v. Mitchell, 122 Md. 460, 466, 89 A. 722, 723 (1914). Thus, Furda was required to wait (either by deferring his application or by filing the application and disclosing the court order) until he had taken the necessary steps to discover the trial court’s action on his reconsideration motion or to appeal the order if it had not been modified on reconsideration. The Denial Order, which was still in effect at the time Furda completed the application, established the relative truth concerning the application question at that time. Therefore, as the intermediate appellate court concluded, Furda was obligated to answer “yes” to the question until such time as that court’s finding of commitment was set aside. Instead, Furda answered “No,” rendering his statement false.
Furda contended that he did not have the subjective intent necessary to support a perjury conviction, arguing that he did not knowingly and willfully lie on the application because he truly believed that the Denial Order was wrong. Although the perjury and false information statutes employ two different terms, “willfully” and “knowingly,” to describe the defendant’s requisite state of mind, the two words are the same in substance and effect. Greenwald v. State, 221 Md. 235, 244 (1959).
Before walking into the gun store, Furda had been made aware of the Denial Order through his counsel. Furthermore, after conferring with his attorney and the owner of the gun shop on the issue of whether the Denial Order prevented him from purchasing a firearm, Furda failed to attach or otherwise make reference to his motion for reconsideration in his application. Furda clearly did not make full and honest disclosure on the application.
For these reasons, the trial court did not err in finding that, by answering “No” to the application question regarding prior commitment to a mental institution, Furda knowingly gave false information in a firearm application and willfully and falsely made an oath or affirmation as to a material fact.
Accordingly, the convictions for false information and perjury were affirmed.
COMMENTARY: Furda also argued that the question on the firearm application, which asked whether the applicant had ever been adjudicated mentally defective or had been committed to a mental institution, was not sufficiently unambiguous to serve as the predicate for a conviction of perjury and false information. Furda claimed that the question was impermissibly ambiguous in two respects.
First, he argued that ambiguity lay in the compound nature of the question, which permitted him to legitimately answer “no” to the question of whether he had ever been adjudicated a mental defective or had been committed to a mental institution. Second, Furda claimed that the word “committed” was susceptible to multiple meanings, depending on whether federal, state or local law applied. Furda emphasized that the trial court determined that he was a prohibited person under federal and local law, but not under state law, and the application was a state form for the purchase of firearms. Accordingly, he claimed to believe that his answer of “no” to the commitment portion of the question was a true statement.
A prosecution for a false statement under the perjury statutes cannot be based on an ambiguous question where the response may be literally and factually correct. United States v. Vesaas, 586 F.2d 101, 104 (8th Cir.1978). As a general rule, however, the fact that there is some ambiguity in a falsely answered question will not shield a defendant from a perjury or false statements prosecution. United States v. Ryan, 828 F.2d 1010, 1015 (3d Cir.1987).
In this case, the question regarding prior commitment to mental institution was not impermissibly ambiguous merely because an applicant was required to answer “yes” if either of two events had occurred (“adjudicated a mental defective” or “committed to a mental institution”). The word “or” is not ambiguous: it means that if either of the events has occurred, then the applicant’s answer should be “yes.” Thus, there was no ambiguity in the question arising from its compound nature.
As to Furda’s second contention, that the word “committed” was susceptible to multiple meanings, federal courts have held that a term is not impermissibly ambiguous simply because, when considered in isolation, it may have two plausible meanings. See United States v. Camper, 384 F.3d 1073 (9th Cir.2004).
In this case, the circuit court’s order referenced federal and local law, and Furda’s own lawyer testified that he had advised Furda, and that Furda unquestionably understood, that the judge had ruled that he was a prohibited person because he was involuntarily committed. Furda’s motion for reconsideration challenged the court’s finding that he had been “committed” under federal and local law. Furda brought that motion to the gun store, and engaged in an extended conversation with the store’s owner, referencing the motion. Had Furda believed that the question’s use of the word “committed” was somehow different than the court’s use of that term in its order, there would have been no need to bring and discuss his motion for reconsideration.
Thus, there was sufficient evidence to support the trial court’s finding that, when he went to the gun store, Furda understood that the Denial Order and application used a similar definition of the term “commitment,” that the Denial Order was still in effect, and that the false statement was not the result of confusion or an honest mistake.
PRACTICE TIPS: Although Congress has not defined the term “committed to a mental institution,” the Maryland Court of Appeals has concluded that the term refers to situations in which, at the very least, the patient has been afforded an evidentiary hearing, held by either a court or a hearing officer, where the patient or the defendant has a right to appear and the right to counsel and findings are made by the fact-finder based on competent medical evidence.
Criminal Procedure
Jury instructions
BOTTOM LINE: Criminal defendant convicted of second-degree assault with a knife was entitled to a new trial because a jury instruction resulted in a non-neutral commentary on evidence, or absence of evidence, actually admitted, and invaded the province of the jury, thereby undermining defendant’s theory of self defense and improperly relieving State of its burden of proof.
CASE: Atkins v. State, No. 110, Sept. Term, 2010 (filed Aug. 18, 2011) (Judges Bell, Harrell, Battaglia, GREENE, Murphy, Adkins & Barbera). RecordFax No. 11-0818-21, 49 pages.
FACTS: In November of 2007, while at a party held at his neighbor’s home, defendant Amardo Atkins was involved in a physical altercation with two other guests, Alexis and Dominique Davis, who were twin sisters. A witness later testified that during the altercation, he saw Atkins reach into his pocket and remove something, but the witness was unable to describe the item that Atkins retrieved. Atkins himself testified that he then removed a pocketknife from his pocket and started swinging the knife in self defense, cutting the Davis sisters and another guest.
Atkins further testified that after the fight, he left the neighbor’s home, threw his pocketknife into a pond behind the building, and returned to his own home. His father then took him to the hospital to have his injuries treated. After treatment, his father took him to the police station, where Atkins gave a voluntary statement. Three days later, police searched Atkins’ home, where they found a knife in the bedroom. The knife was a non-foldable black knife, approximately 12 inches in length with a six-inch blade. Police did not perform any scientific or forensic testing on the knife and there was no testimonial evidence from witnesses linking the particular knife found in the defendant’s home to the crime.
Atkins was subsequently charged with three counts of assault with a knife. At trial, the State argued that the knife found in the defendant’s home was the knife used to inflict the injuries. Defense counsel, in turn, argued that the knife found was not the knife used in the incident, but instead maintained that Atkins used a foldable pocketknife to protect himself. Although defense counsel objected to the admission of the large black knife at trial, the trial judge allowed the State to present the knife as evidence of the crime.
On cross-examination of the police officer who found the knife at issue, defense counsel questioned whether forensic testing could have been done on the knife introduced into evidence, highlighting the lack of evidence connecting the knife to the crime. After the close of evidence but before closing arguments, the State requested a jury instruction stating in part that “there is no legal requirement that the State utilize any specific investigative technique or scientific test to prove its case.” Over the defendant’s objection, the court issued the instruction.
After deliberation, the jury found Atkins guilty on all three counts of assault. Atkins appealed to the Court of Special Appeals, arguing that the trial judge abused his discretion in giving the above jury instruction. The Court of Special Appeals affirmed the convictions.
The Court of Appeals reversed the judgment of the Court of Special Appeals.
LAW: The right to trial by jury is guaranteed by the Maryland Declaration of Rights and the Maryland Rules, as well as the United States Constitution. Stokes v. State, 379 Md. 618, 626 (2004). Maryland appellate courts have often recognized error in the trial judge’s instructions if the error was likely to unduly influence the jury and thereby deprive the defendant of a fair trial. State v. Hutchinson, 287 Md. 198, 205 (1980). In particular, it is improper for a judge to issue any instruction that operates, ultimately, to relieve the State of its burden of persuasion in a criminal case. State v. Evans, 278 Md. 197, 207 (1976). Reversal is warranted when the defendant was prejudiced because the instruction undermined the closing argument already given by the defense.
Here, rather than solving a problem arising from the circumstances of the case, the trial judge’s instruction that “there is no legal requirement that the State utilize any specific investigative technique or scientific test to prove its case” created a problem that unfairly prejudiced the defendant’s case.
Although the Maryland Court of Appeals has not previously addressed the particular issue of whether a trial judge may instruct the jury that the State is not required to produce certain evidence, the Court of Special Appeals addressed the same jury instruction in Evans v. State, 174 Md.App. 549 (2007). In Evans, the Court of Special Appeals affirmed the conviction and the use of the instruction, stating that the instruction was a correct statement of the law, was applicable to the facts in the case and was not fairly covered by other instructions given, and that the robust and vehement closing arguments of counsel warranted giving the instruction. Evans, 174 Md.App. at 570.
Evans, however, was distinguishable from the present case for multiple reasons. First, in Evans, the defendant’s counsel failed to object to the instruction during the proceedings, and the Court of Special Appeals was therefore precluded from such consideration on appeal. Evans, 174 Md.App. at 566. Further, the missing evidence in Evans (photographic or video evidence of the drug transaction) was not of critical importance to the case, as the State relied on the eye witness testimony and identification of two detectives directly involved in the transaction. As such, the failure of police to provide additional evidence was not a crucial issue. Evans, 174 Md.App. at 562-63.
By contrast, in the present case, the only issue before the jury was whether the defendant, Atkins, acted in self defense, and the main piece of physical evidence upon which the jury could base that determination was the particular knife found in the defendant’s home.
In its closing argument, the State relied heavily on the large black knife found at his home in order to refute the claim of self-defense. Conversely, the defense claimed that Atkins was attacked by Holland and the Davis sisters, and used a pocket knife to defend himself. Thus, the knife used was of critical importance in the case, considering its size and character, and the defense sought to discredit the alleged connection between the knife found at the defendant’s home and the crime. The evidence lacking here could have been direct evidence to affirmatively linking the knife introduced to the alleged assaults. Furthermore, the instruction here, unlike in Evans, addressed directly the demonstrative evidence introduced against Atkins.
Finally, in Evans, defense counsel gave “robust and vehement closing argument” in addition to extensive cross-examination on the issue of the failure of police to record the transaction, and the court viewed the instruction as necessary to correct defense counsel’s argument that the State was required to produce certain evidence. Evans, 174 Md.App. at 570. Unlike in Evans, where counsel distorted the law, thus requiring a curative instruction, counsel in the present case merely pointed out on cross-examination what procedures were available but did not incorrectly state the law or the State’s burden. As such, the legal reasoning of Evans was not applicable in the case at hand.
For these reasons, there was an insufficient basis in this case generating a need for a curative or cautionary jury instruction clarifying the State’s burden in regards to specific investigative techniques.
The issue regarding lack of forensic evidence was generated when the State sought to have the knife admitted as evidence with no corroborating evidence linking it to the crime, save speculation that the wounds inflicted on the victims were consistent with the particular knife found in the defendant’s bedroom. Defense counsel, outside the presence of the jury, objected to the admissibility of the knife. Once overruled by the trial judge, defense counsel had every right to inquire about steps the State undertook to connect the defendant and the particular knife found in the defendant’s home to the crime.
Defense counsel engaged in cross-examination of the detective, asking whether the police department was capable of looking for skin cells or blood on the knife, and whether such testing was performed in this case. The examination was a legitimate, brief, and reasonable inquiry into the connection between the knife and the crime, and the instruction employed did anything other than nullify or undermine the proper defense that the knife relied on by the State could not be connected to the crime.
Therefore, the trial court erred in giving the instruction as written, based on the facts of this case. Accordingly, judgment of the Court of Special Appeals was reversed.
COMMENTARY: The jury instruction also invaded the province of the jury and constituted commentary on the weight of the evidence, and such comment was clearly improper. As noted by Atkins himself, it was the jury’s function to determine what inferences were to be drawn from the police officer’s failure to test the knife for DNA evidence. However, the trial judge usurped this role. Basically, the instruction directed the jury to ignore the fact that the State had not presented evidence connecting the knife to the crime, implying that the lack of such evidence was not necessary or relevant to the determination of guilt, and to disregard any argument by defense to the contrary. In the words of the defendant’s counsel, “the instruction effectively plugged a hole in the State’s case.”
While a jury instruction as to investigative techniques instruction is not always improper, the key to producing a valid jury instruction is ensuring that the State is properly held to its burden, and any instruction regarding what the State must produce in proving its case must be properly related to the reasonable doubt standard. The instruction given in the present case, however, effectively relieved the State of its burden. Rather than aiding the jury in understanding the case and providing guidance for deliberations, the instruction resulted in commentary on specific evidence, or lack thereof, and invaded the province of the jury.
PRACTICE TIPS: The popularity of modern “forensic” dramas such as CSI: Crime Scene Investigation has garnered increased media attention in recent years, with speculation that the shows produced a “CSI effect” that may skew jury verdicts, most frequently in criminal law matters. The theory behind the so-called “CSI effect” is that the millions of viewers of forensic dramas develop unrealistic expectations about the availability and results of specific scientific forensic techniques, increasing the likelihood of a finding of “reasonable doubt” where such forensic evidence is not produced, and, thus, an increased likelihood for an acquittal or hung jury. The “CSI effect,” however, can refer more generally to any influence that such programs have on any group involved in a courtroom proceeding; moreover, debate continues regarding whether a “CSI effect” actually exists.
Estates & Trusts
Residence
BOTTOM LINE: For purposes of ET §8-104(c), decedent “resided” at the hospital where she remained dependent on life support for the last 11 months of her life and from which she was never likely be released to return to her home.
CASE: Boer v. University Specialty Hospital, No. 67, Sept. Term, 2008 (filed Aug. 19, 2011) (Judges Harrell, Greene, Barbera & WILNER (retired, specially assigned)) (Judges Eldridge (retired, specially assigned), Bell & Battaglia dissenting)). RecordFax No. 11-0819-20, 28 pages.
FACTS: The decedent, Dorothy Faya, lived for most of her 82 years at her home in Catonsville, Maryland, in Baltimore County. On Nov. 29, 2002, when she was 81 and had been living alone for some time, Faya fell and was taken by ambulance to St. Agnes Hospital in Baltimore City, where she remained until Dec. 21, 2002.
Upon her discharge, the intent was to take Faya to a nursing home in Catonsville. While en route, however, Faya became unable to breathe on her own, and was instead transported to University Specialty Hospital (USH), a licensed chronic care hospital also located in Baltimore City, and placed on artificial life support. With the exception of five emergency admissions to two nearby acute care hospitals, Faya remained at USH for the next 11 months, until Nov. 21, 2003, when she died. During her stay at USH, she remained on a ventilator and feeding tube. She was mentally competent but unable to talk.
During the first few months of her hospitalizations, Faya’s hospital and medical bills were covered by Medicare. However, that insurance was exhausted on March 29, 2003, and Faya’s daughter, Deborah Boer, made three payments for Faya’s medical care between May and November 2003, totaling $35,896. Counsel to USH attempted to work with Boer to have her mother qualify for Medicaid benefits, but Faya died before that arrangement could be made. The outstanding balance due MSH at the time of Faya’s death was $206,343.
On Dec. 10, 2003, prior to the opening of an estate and the appointment of a personal representative, USH filed a claim with the register of wills in Baltimore City. On Feb. 18, 2004, Faya’s will was admitted to probate in Baltimore County and her son-in-law, John Boer, was appointed as personal representative. On October 1, 2004, USH filed a claim for the actual amount owed, $206,343, with the register of wills in Baltimore County. The personal representative denied the claim on the ground that it was not timely filed within six months after the decedent’s death, and that the claim filed in Baltimore City, which was timely, was invalid because, in his view, Faya did not “reside” in the City at the time of her death.
After an evidentiary hearing, the Orphans’ Court for Baltimore County agreed with the personal representative and entered judgment for the estate. The court recognized that, under Estates and Trusts Article (“ET”) §8-104(c), a creditor who files a claim prior to the appointment of a personal representative may file it with the register of wills in the county where the decedent “resided” at the time of her death, and the court found that the evidence did not support the conclusion that Faya “resided” in Baltimore City at the time of her death.
USH appealed to the circuit court for Baltimore County, which affirmed the judgment. UHS appealed to the Court of Special Appeals, which reversed the judgment of the circuit court.
The personal representative appealed to the Court of Appeals, which affirmed the judgment of the Court of Special Appeals.
LAW: This case presented a very narrow legal issue, but one of first impression. ET §8-104(c) permits a creditor to file a claim against a decedent’s estate prior to the appointment of a personal representative. Because, in such a situation, no estate has yet been opened and no Orphans’ Court has therefore assumed jurisdiction, the law permits the creditor to file the claim with the register of wills in any of three counties: where the decedent was domiciled; where the decedent “resided” on the date of his or her death; or where real property or a leasehold interest in real property of the decedent is located. The only legal issue before the Court of Appeals was what is meant by “resided.”
Maryland cases dealing with domicile look principally to the person’s subjective belief as to where his or her true home is located. If the person is physically somewhere else, courts have given overwhelming weight to evidence that the person hopes, intends, or expects to return. See Blount v. Boston, 351 Md. 360, 368 (1998). The objective indicia usually considered by the Court, such as where the person is registered to vote, the address on the person’s driver’s license, and where the person receives mail or keeps furniture or other belongings, are examined less for any direct bearing on domicile and more for the purpose of determining what the person’s subjective belief really is and whether it is reasonable under the circumstances. See Bainum v. Kalen, 272 Md. 490, 499 (1974).
However, this deference to the person’s subjective hope or intent, which both the Orphans’ Court and the circuit court stressed in reaching their respective conclusions, has far less validity when determining pure residency for purposes of ET §8-104(c).
Because residency under that statute is an independent alternative to domicile, it ultimately must be determined on the basis of objective facts beyond the decedent’s subjective hope, intention, or expectation, and, if the statute is to have real meaning, residency must be reasonably capable of determination by the creditor.
Accordingly, those subjective factors, important to a determination of domicile, necessarily have much less weight than whether, or when, the person actually might be able or expected to return to his or her former residence or place of domicile.
In this case, Faya was not in a Baltimore City facility for acute care or even for a several-week or several-month period of longer-term therapy or care that, one day, would no longer require her presence there. Rather, and of critical importance in assessing the reality of Faya’s situation, the undisputed evidence was that, during the entire period of 11 months left to her, Faya was unable to be weaned off a ventilator and had to be fed through a tube. The only times she left USH were when she needed more acute care at other hospitals, all in Baltimore City. The evidence at the more critical times nearer to her death was clear that, due to her unfortunate medical condition, it remained unlikely that Faya ever would have been able to return to her Catonsville home. Faya obviously could not return home while she remained dependent on artificial life support and needed to be constantly monitored by trained professionals.
As an element of domicile, the Court of Appeals has defined “residence” as the place where one “actually lives.” Stevenson v. Steele, 352 Md. 60, 69 (1998). Here, the plain and simple fact, given insufficient attention by the Orphans’ Court and the Circuit Court, was that, in light of Faya’s situation, USH was where she “actually lived” when she died. USH was her dwelling, her home, her abode for 11 months (the balance of her life), and likely would have remained so even if she had lived months or perhaps even years longer. Faya did not die prematurely while in the course of recovery. The two trial courts effectively, and erroneously, grafted on to the concept of actual residency subjective elements of permanency that are more appropriate to determining domicile, and in doing so, applied an erroneous reading of the statute.
Accordingly, the judgment of the Court of Special Appeals was affirmed.
COMMENTARY: Relying on the fact that §19-342 of the Health-General Article refers to persons receiving care in hospitals as “patients” and §19-343 of that Article refers to persons in “related facilities” such as nursing homes as “residents,” the personal representative suggested that, in enacting ET §8-104(c), the Legislature did not intend for persons receiving treatment in hospitals to be considered as “residents.” However, there is no support for that notion in the legislative history of any of those statutes.
Long-term care for medical problems, disabilities, or rehabilitation therapy may be provided by long-term acute care hospitals, chronic care hospitals, chronic disease centers, comprehensive care facilities, continuing care facilities, nursing homes, and nursing facilities. A patient in any of those facilities, depending on his or her actual situation, may be regarded as “residing” there for purposes of § 8-104(c), or not. The definitions vary and overlap. As such, the Court of Appeals rejected this argument.
DISSENT: The opinions of the Court of Appeals concerning the words “reside” or “residence” have often construed those words to mean “domicile.” Moreover, a residence is generally defined as a private dwelling — that is, a home. A normal person’s understanding of one’s “residence” would exclude hospitals treating a patient’s accidental injury, with the patient intending to return home as soon as hospitalization is no longer required. Therefore, under the facts of this case, the circuit court was justified in concluding that Faya did not “reside” at the hospital within the meaning of ET §8-104(c).
PRACTICE TIPS: Under Maryland law, the mere fact that a person is bodily present in a particular county at the time of his or her death does not mean, for purposes of the Estates and Trusts Article, that the person then “resided” in that county. If that were so, a person who died while on vacation, or on a business trip, or during a short-term stay in a hospital could be regarded as “residing” in the county where the hotel, hospital, or other facility was located, and the Maryland Legislature did not contemplate or intend such a result. Thus, “residence” means something more than mere physical presence and hinges on particular facts of a case.
Professional Responsibility
Disbarment
BOTTOM LINE: Attorney’s conduct in altering and deleting documents within law firm’s client files, in order to make it appear as though the files had been closed so that attorney could represent clients once he left the firm, was dishonest, intentional and solely motivated by the attorney’s desire for personal gain, warranting disbarment.
CASE: Attorney Grievance Commission of Maryland v. Keiner, No. 24, Sept. Term, 2010 (filed Aug. 19, 2011) (Judges Harrell, Battaglia, Greene & BARBERA) (Judges Bell, Murphy & Eldridge (retired, specially assigned) dissenting)). RecordFax No. 11-0819-22, 38 pages.
FACTS: Gregory Keiner was admitted as a member of the Maryland Bar on Dec. 18, 2002. From February 2003 until March 2009, Keiner worked as an Associate Attorney at The Law Offices of Evan K. Thalenberg, P.A., practicing primarily lead paint litigation. In 2008, Keiner decided to leave the firm and establish his own practice.
From approximately June 2008 until March 2009, in order to facilitate his transition to opening his own practice, Keiner began altering and deleting documents in the firm’s client files to give the appearance to the firm that client files had been closed, when in fact the files were still active. Keiner also deleted and altered documents in the firm’s client files to show lower-than-actual or, in some cases, the absence of, blood-lead levels to support his drafting of a termination letter to the clients of the firm.
In addition, Keiner solicited approximately 200 potential clients and sought medical and laboratory results for potential clients using his own letterhead while working for the firm. Keiner utilized the firm’s resources to locate potential clients. Keiner’s deception was discovered when a client contacted the firm and produced a letter from Keiner on Keiner’s own letterhead. When Keiner was confronted with the solicitation letter, he wrote a letter to Evan Thalenberg admitting that he had altered computer records at the firm in four cases.
John Kazmierczak, another attorney with the firm, was assigned the task of investigating cases Keiner may have altered while working at the firm. In addition to four client files that Keiner admitted to altering, Kazmierczak located four additional client files that had similar alterations. Keiner testified that he engaged in these misrepresentations in order to avoid filing claims while working at the firm, and to facilitate filing these claims once he was practicing law on his own. Keiner was terminated by the firm shortly after his misconduct was discovered. Shortly thereafter, Keiner was voluntarily admitted to Howard County General Hospital and was later diagnosed with adjustment disorder with depression, dysthymia and alcohol dependence. Keiner made efforts to refrain from alcohol consumption but was unable to do so completely.
The Attorney Grievance Commission, acting through Bar Counsel, filed a petition for disciplinary action or remedial action against Keiner. The circuit court found by clear and convincing evidence that Keiner had had violated Maryland Rules of Professional Conduct 16-812, 1.4(a, b) and 8.4(a, b, c) and that Keiner’s misconduct had not caused by his alcohol dependency or depression.
The Court of Appeals held that Keiner’s conduct warranted disbarment.
LAW: Keiner’s acts of altering and deleting documents within the firm’s client files constituted criminal acts in violation of Maryland Criminal Law Code Ann. §7-302 and, therefore, violations of Rules 8.4(a), (b), (c) and (d) of the Maryland Lawyers’ Rules of Professional Conduct (MRPC). Keiner’s criminal conduct reflected adversely on his honesty, trustworthiness and fitness as a lawyer. Keiner’s conduct was deceitful and prejudicial to the administration of justice, as he carried out his deception after hours, when others would not observe his actions, because Keiner understood his actions to be inappropriate and unauthorized.
Rules 1.4(a) and (b) require that an attorney communicate with his client regarding representation, including material changes in representation. Because Keiner failed to inform the firm’s clients of his intentions, they were unable to consent to a potentially significant change in representation. Therefore, Keiner acted in a deceptive manner and exceeded the scope of his authority when he altered or deleted documents without his client’s permission. Keiner’s failure to communicate with his clients regarding a material change in their representation represented a violation of Rules 1.4(a) and (b).
Rule 8.4 describes specific acts that constitute professional misconduct including purposefully violating the MRPC, committing a criminal act that reflects negatively on a lawyer’s honesty, and engaging in fraud, misrepresentation or conduct that is prejudicial to the administration of justice. In this case, Keiner knowingly violated the MRPC when he altered and deleted documents with the intent to solicit these clients for his own law practice while he was still employed by the law firm. Thus, Keiner committed a criminal act that reflected adversely on his honesty, trustworthiness and fitness as a lawyer by altering and deleting the firm’s electronic files on the firm’s computers in order to solicit these clients for his own financial benefit.
Keiner likewise engaged in conduct involving dishonesty, fraud, deceit or misrepresentation when he altered and deleted documents and sent hundreds of solicitation letters on his own letterhead to his law firm’s current clients, using his firm’s resources. Keiner engaged in conduct prejudicial to the administration of justice when he lied about the blood-lead levels in order to have his firm believe that the clients did not have a viable case. Therefore, there was clear and convincing evidence that Keiner’s acts of misconduct were in violation of Rules 8.4(a), (b), (c) and (d). And, although there was proof that Keiner suffered from depression and alcoholism, the evidence presented by Keiner was insufficient to conclude that his conduct was the result of these ailments. As such, Bar Counsel proved by clear and convincing evidence each alleged violation of the Maryland Lawyers’ Rules of Professional Conduct, the Maryland Rules and Md.Code Ann., Crim. Law §7-302.
Keiner noted certain exceptions to certain of the hearing judge’s factual findings, including an exception to the trial court’s ultimate conclusion that Keiner’s behavior was not the result of his depression and alcohol abuse. This exception involved two sub-contentions, each relating to Keiner’s alcohol dependency. Keiner first contended that the hearing judge failed to acknowledge Keiner’s alcohol dependency while he was working at Thalenberg. Keiner’s second sub-contention was that the hearing judge failed to acknowledge that, following the discovery of Keiner’s misconduct, he began voluntarily meeting with the Director of the Lawyer Assistance Program of the Bar Association and undergoing alcohol abuse treatment.
However, the record supported the hearing judge’s conclusion that Keiner’s alcoholism and mental health issues did not cause his misconduct. While the hearing judge’s factual findings omitted any reference to the amount of alcohol Keiner said he was consuming during the time he was engaging in the misconduct at issue as well as any reference to the counseling Keiner was receiving, it did not follow that the hearing judge necessarily failed to consider this evidence. Rather, it was to be presumed that the judge gave the evidence the weight he believed it deserved in finding that although alcohol abuse and depression no doubt adversely impacted Keiner, it was not clear or convincing that such difficulties resulted in Keiner’s inability to conform his conduct in accordance with the law and with the Rules of Professional Conduct. Accordingly, this exception was overruled.
Conduct involving dishonesty, fraud, or deceit, carries the risk of the ultimate sanction by the court. Attorney Grievance Comm’n v. White, 354 Md. 346, 366 (1999). Accordingly, when it appears that an attorney has engaged in intentional dishonest conduct, disbarment will be the appropriate sanction absent compelling extenuating circumstances. See Attorney Grievance Comm’n v. Steinberg, 395 Md. 337, 375 (2006). Keiner’s mental disabilities did not constitute “compelling extenuating circumstances.”
Therefore, given that Keiner’s conduct was dishonest, intentional, and solely motivated by the desire for personal gain, disbarment was the appropriate sanction.
COMMENTARY: Keiner also noted an exception to the trial court’s failure to consider the recommendation of the Peer Review Committee. At bottom, this exception challenged the legal correctness of the hearing judge’s ruling on the inadmissibility of the Report of the Peer Review Panel and the letter communications between Bar Counsel and Keiner’s counsel concerning the availability to Keiner of a conditional diversion agreement. However, the recommendation of a Peer Review Panel merely suggests to the Attorney Grievance Commission, not to the Court of Appeals, what the majority of the panel members considers to be the appropriate course of a given attorney discipline investigation. Attorney Grievance Comm’n v. Lee, 387 Md. 89, 108-09 (2005). Furthermore, Peer Review Panel Reports are confidential. See Attorney Grievance Comm’n v. Kinnane, 390 Md. 325, 336 (2005). Therefore, this exception was overruled.
DISSENT: A sanction of an indefinite suspension was more appropriate than disbarment. Among prior attorney grievance cases, the present case was most similar to Attorney Grievance Commission v. Potter, 380 Md. 128 (2004), in which the Court unanimously imposed a 90-day suspension. Thus, the imposition of a suspension in the case at bar would comport with consistency and a respect for precedent.
PRACTICE TIPS: In cases involving an attorney’s intentional dishonesty, misappropriation, fraud, stealing, serious criminal conduct and the like, a court will not accept, as “compelling extenuating circumstances” anything less than the most serious and utterly debilitating mental or physical health conditions. Maryland courts apply a three-part test: (1) the evidence must be almost conclusive, and essentially uncontroverted, that the attorney had a serious and debilitating mental condition; (2) the mental disability must be the “root cause” for the misconduct, meaning that it must affect the attorney’s ability in normal day-to-day activities such that the attorney was unable to accomplish the least of those activities in a normal fashion; and (3) the mental disability must have resulted in the attorney’s utter inability to conform his or her conduct in accordance with the law and with the Rules of Professional Conduct.
Professional Responsibility
30-day suspension
BOTTOM LINE: Where hearing judge concluded that an attorney who deposited client funds into his operating account did so not out of dishonesty or an intent to deceive but in the mistaken belief that he was not required to maintain a client trust account, it was not shown by clear and convincing evidence that attorney was guilty of dishonest conduct.
CASE: Attorney Grievance Commission of Maryland v. Tauber, No. 9, Sept. Term, 2010 (filed Aug. 18, 2011) (Judges Bell, Harrell, Battaglia, GREENE, Murphy, Adkins & Barbera). RecordFax No. 11-0818-20, 22 pages.
FACTS: On Feb. 26, 2010, the Attorney Grievance Commission of Maryland filed a Petition for Disciplinary or Remedial Action against attorney Joseph Tauber. The Hearing Judge filed Findings of Fact and Conclusions of Law. The judge found that Tauber had been retained by a client, Jill Lee, to represent her in the divorce, and that Lee, through her father, had paid Tauber a retainer of $3,500 against Tauber was to bill $245 per hour. At that time, Tauber did not have a trust account for the purpose of receiving such funds, and he deposited the funds into his operating account and thereafter drew against the funds after he deposited them.
The hearing judge further found that Tauber prepared the divorce action and filed it on June 17, 2008. On June 20, 2008, Lee, again through her parents, paid Tauber an additional $2,500 against which he was to bill at $245 per hour. Tauber also deposited these funds into an operating account and drew on them. In June of 2008, Tauber prepared and sent Lee a bill for his services. The bill indicated that he had worked 19.4 hours on her case, earning a total of $4,753. The bill also showed that Tauber had paid a filing fee of $115. On July 29, 2009, after becoming dissatisfied with Tauber’s representation and after filing a complaint about Tauber with the Commission, Lee sent Tauber a letter dismissing him as her attorney and requesting the return of the unused retainer which she calculated as $1,247. On September 11, 2009, Tauber refunded to Lee the $1,247 balance of the retainer.
Based on these findings of fact, the hearing judge concluded that Tauber violated Rules 1.15(a) and 8.4(d) of the Maryland Rules of Professional Conduct (MRPC). The Commission filed exceptions to the failure of the trial court to find that Tauber violated Maryland Rule of Professional Conduct 8.4(c) and Maryland Rule 16-609.
The Court of Appeals overruled the Commission’s exceptions and imposed a 30-day suspension for the violations that were proven by clear and convincing evidence.
LAW: The Court of Appeals first addressed the Commission’s exception to the trial judge’s failure to find that Tauber had violated MRPC 8.4(c). The mishandling of a retainer fee may or may not constitute “dishonest” conduct proscribed by MRPC 8.4(c). While it is obvious that MRPC 8.4(c) is violated when a lawyer deliberately places into the lawyer’s operating account funds that the lawyer has a duty to place into an escrow account, that rule is not violated when a lawyer mistakenly places into the operating account funds that should have been placed into an escrow account.
In this case, Tauber testified that he placed the retainer into his operating account in the mistaken belief that he was entitled to do so, and opened an escrow account as soon as he realized that he was required to have an escrow account. The hearing judge was entitled to accept Tauber’s explanation. See, e.g., Attorney Grievance Commission v. Walter, 407 Md. 670 (2009). There is nothing mysterious about the use of inferences in the fact-finding process; jurors routinely apply their common sense, powers of logic, and accumulated experiences in life to arrive at conclusions from demonstrated sets of facts, and hearing judges do the same. Robinson v. State, 315 Md. 309, 318 (1989).
Thus, the hearing judge’s finding that Tauber did not intend to cheat or deceive either his client or his firm was not erroneous — clearly or otherwise — merely because the judge did not find it appropriate to draw one or more permissible inferences which might have been drawn from the evidence by another trier of the facts. Hous. Opportunities Comm’n of Montgomery County v. Lacey, 322 Md. 56, 61 (1991). As such, while the Commission’s evidence was sufficient to generate the issue of whether Tauber’s handling of the retainer fee constituted “dishonest” conduct under MRPC 8.4(c), the hearing judge found no indication that Tauber had any intent to be dishonest or fraudulent in his dealings with Lee or her parents or that he engaged in deceit or misrepresentation. Giving deference to that finding, the Court of Appeals overruled the Commission’s exception to the hearing judge’s failure to find that Tauber violated MRPC 8.4(c).
Next, the Court of Appeals considered whether it was shown by clear and convincing evidence that Tauber violated Maryland Rule 16-609(a). Rule 16-609 provides, in pertinent part, provides that an attorney may not use any funds required by the Maryland Rules to be deposited in an attorney trust account for any unauthorized purpose. This rule is not violated whenever an attorney deposits into an operating account funds that are required by Md. Rule 16-604 to be deposited in an attorney trust account.
In this case, it was clear that Tauber deposited into his operating account the funds paid to him on behalf of his client, Lee, and thereafter “drew against” funds in that account. However, the Commission did not produce evidence that any of the funds that Tauber “drew against” necessarily included the funds paid on behalf of Lee. Under these circumstances, no reasonable trier of fact could find by clear and convincing evidence that Tauber actually made any unauthorized use of the funds paid on behalf of Lee.
Accordingly, the Court of Appeals overruled the Commission’s exception to the hearing judge’s failure to find that Tauber violated Md. Rule 16-609.
COMMENTARY: Tauber’s violations of Maryland Rules of Professional Conduct 1.15(a) and 8.4(d), which were proven by clear and convincing evidence, called for an appropriate sanction. The severity of the sanction depends upon the facts and circumstances of the case, taking account of any particular aggravating or mitigating factors. Attorney Griev. Comm. v. Glenn, 341 Md. 448, 484 (1996).
In determining the appropriate sanction, Maryland courts have often looked to the American Bar Association’s Standards for Imposing Lawyer Sanctions, reprinted in LAWYERS’ MANUAL ON PROFESSIONAL CONDUCT (2003) (ABA Standards). Id. at 488. These standards create an organizational framework that calls for a consideration of four questions: (1) What is the nature of the ethical duty violated?; (2) What was the lawyer’s mental state?; (3) What was the extent of the actual or potential injury caused by the lawyer’s misconduct?; and (4) Are there any aggravating or mitigating circumstances? See ABA Standards, Standard 3.0, at 17.
Under the facts and circumstances of the case at bar, the appropriate sanction was a 30-day suspension, and this suspension was so ordered.
PRACTICE TIPS: Every lawyer is deemed to know the Rules of Professional Conduct, and is charged with the knowledge that along with the duty to maintain adequate records, an attorney must maintain a separate trust account with a title that includes the name of the attorney or law firm and that clearly designates the account as “Attorney Trust Account” or the equivalent. Claimed ignorance of ethical duties and bookkeeping requirements is not a defense in disciplinary proceedings. However, although ignorance does not excuse a violation of disciplinary rules, a finding with respect to the intent with which a violation was committed is relevant on the issue of the appropriate sanction.
Real Property
Nuisance
BOTTOM LINE: The trial judge’s instructions to jurors in a private nuisance case that that they should consider the reasonableness of the offending landowner’s use of its property, the locality of the affected landowner’s property, the surrounding circumstances, and the substantiality of the interference with the property owners’ use and enjoyment of their property were a correct exposition of the law.
CASE: Wietzke v. Chesapeake Conference Association, No. 122, Sept. Term, 2010 (filed Aug. 17, 2011) (Judges Bell, Harrell, BATTAGLIA, Greene, Murphy, Adkins & Barbera). RecordFax No. 11-0817-21, 47 pages.
FACTS: Douglas and Vanessa Wietzke, husband and wife, owned property in Silver Spring, Maryland. The property was adjacent to property owned by the Chesapeake Conference Association of Seventh-Day Adventists (the “Church”). The properties were situated such that the Wietzke’s property sat at the bottom of a hill, and the Church’s property was atop a hill.
In 2000, the Church decided to construct a new parking lot on its property. On March 4, 2004, the Church sent correspondence to all neighboring, downstream property owners, including the Wietzkes, informing them it intended to develop its property and employ a “stormwater management” concept to deal with any increased runoff the construction may cause. In conjunction with the construction of the parking lot, the Church developed a stormwater runoff and sediment control strategy, which was intended to control the flow of surface water from the Church property.
Between October 26, 2006 and mid-to-late summer of 2007, a large stormwater pond was constructed on the Church’s property. The stormwater pond, which held thousands of gallons of water, was designed to collect excess water runoff from the Church’s property and to release it in a slow, controlled manner. The stormwater pond was also designed to filter solid matter out of the water by guiding it through a “silt fence” made of woven fabric. To maintain the purity of the stormwater on the Church’s construction site, earth dikes, or trenches fashioned out of dirt, were dug to direct stormwater around the construction site.
On Nov. 28, 2006, and again on June 14, 2007, the Church was visited by a County Inspector and issued a “Notice of Violation” for non-compliance with certain County ordinances relating to stormwater and sediment control. The Nov. 28, 2006 Notice was issued because the Church had not yet built an earth dike and other sediment controls. The Notice was accompanied by an “Inspection Summary,” which instructed the church to cease construction until it built an earth dike. The June 14, 2007 Notice was issued after an usually heavy rainfall, when stormwater had escaped from the earth dikes into the Church’s construction site, permitting soil to be washed away. The Notice contained a brief narrative accompanied by an Inspection Summary stating “there was flooding of the house,” without identifying any specific property, and that a notice of violation and a civil citation were being issued.
The Wietzkes subsequently filed a four-count complaint against the Church and various others in the circuit court, alleging nuisance, trespass, and negligence in connection with the construction of the parking lot, which, the Wietzkes claimed was the cause of the repeated and continued flooding of their home. The Wietzkes requested monetary damages and injunctive relief.
At the jury trial, after the close of the Wietzke’s case, the circuit court granted the Church’s motion for judgment as to the negligence claim. After the close of the Church’s case, but before the jury was instructed, the trial judge, over the Wietzke’s objections, denied several of the Wietzke’s requested jury instructions. The denied instructions included an instruction that interference with the comfortable enjoyment of the affected property was the only consideration.
The jury found in favor of the Church on nuisance and trespass. The Wietzkes appealed to the Court of Special Appeals, which affirmed the circuit court judgment.
The Wietzkes appealed to the Court of Appeals, which affirmed in part and reversed in part the judgment of the Court of Special Appeals and remanded the case.
LAW: The Court of Appeals first addressed the two separate but inextricably linked questions of: (1) whether Maryland Pattern Jury Instructions 20:1 and 20:2, which fail to include any reference to strict liability, but instead require a finding of “unreasonable conduct,” conflicted with the law of strict liability nuisance established by the Maryland Court of Appeals; and (2) whether the Wietzkes were improperly denied a jury instruction that reflected the strict liability law of nuisance in Maryland.
These questions espoused the legal conclusions that only the level of interference to an affected landowner can be considered in assessing a nuisance claim, and that strict liability must be imposed once the nuisance is established. The Wietzke’s first requested instruction equated nuisance with a determination of whether their “comfortable enjoyment” of their property was interfered with. By contrast, the instruction given by the trial judge involved a much more comprehensive inquiry, calling for the jury to balance the use of its property by the alleged offender against the right of the affected landowner to be free from interference.
The present case involved interference with only the Wietzke’s use and enjoyment of their own private property — that is, private nuisance. Private nuisance is defined as “a non-trespassory invasion of another’s interest in the private use and enjoyment of land.” Rosenblatt v. Exxon Co., U.S.A., 335 Md. 58, 80 (1994). The Wietzke’s requested formulation of nuisance would have erroneously directed the jury to consider only whether the Wietzke’s “comfortable enjoyment” of their property experienced interference. However, the doctrine of private nuisance dictates that the fact finder should consider the reasonableness of the offending landowner’s use of its property.
The trial judge, in accordance with relevant jurisprudence, instructed the jurors that they should consider the reasonableness of the offending landowner’s use of its property, the locality of the affected landowner’s property, the surrounding circumstances, and the substantiality of the interference with the Wietzke’s use and enjoyment of their property. As such, the jury instructions in issue were a correct exposition of the law.
There was also little merit in the Wietzke’s argument that the concept of “strict liability” was not fairly covered by the trial judge’s instructions. Strict liability is defined as liability that does not depend on actual negligence or intent to harm, but that is based on the breach of an absolute duty to make something safe. Black’s Law Dictionary 998 (9th ed.2009). In the present case, the concept of strict liability was correctly articulated in the trial judge’s instruction that a person who creates or continues a nuisance is responsible for the injury or damage caused to others by the nuisance.
Therefore, the trial judge correctly instructed the jury regarding the elements of nuisance and strict liability.
COMMENTARY: The Wietzkes also argued that the trial court erred in dismissing their negligence count, because the evidence established that the defendants had violated, and were given notices of violations, of Montgomery County Code ordinances as a result of the flooding of the Wietzke property. The June 14, 2007 Notice, which cited Section 19-16(a) of the Montgomery County Code, provided that sediment had left the site after a storm event and that there was flooding in the neighborhood. The Notice was also accompanied by an “Inspection Summary,” which, among other details, provided that there was sediment water and deposition on the property below and that there was flooding of the house, and that notice of violation and a civil citation are being issued.
The ordinance cited in the June 14, 2007 Notice, Section 19-16(a), governs the rolling, flowing, or washing of sediment from one property “over the premises of another in a manner to cause damage to the premises.” The language of §19-16(a) prohibits “land-disturbing activity” which causes materials such as soil, earth, sand, gravel, rock, stone, or other material to be deposited upon or over the premises of another in a manner to cause damage. Land-disturbing activity has been defined broadly to encompass any earth movement and land changes which may result in soil erosion from water or wind or the movement of sediments into state waters or onto lands in the state. Thus, in a plain meaning analysis, the ordinance clearly encompassed the type of harm the Wietzkes complained of, the washing of certain “materials” onto their property, and protects a class of persons encompassing the Wietzkes, private landowners.
As such, the trial court’s conclusion that §19-16(a) did not protect against the harm the Wietzkes complained of was not supported, as the issue of whether the flood waters in the Wietzke’s basement bore sediment from the Church’s property formed no part of the trial judge’s discussion in granting the Church’s motion for judgment. Moreover, at trial, the Wietzkes presented testimony that the “private property” referred to in the June 14, 2007 Notice was actually the Wietzke’s property. Because the purpose of Section 19-16(a) of the Montgomery County Code was to prevent liquid containing sediment from being deposited onto the premises of another, which protects the Wietzkes, as members of a particular class, and because, various evidence, if believed and credited by the jury as favorable to the Wietzkes, could have supported a negligence claim, the trial court erred in granting the Church’s motion for judgment on the Wietzke’s negligence claim, as to the June 14, 2007 Notice, before submitting the case to the jury.
Accordingly, the circuit court judgment as to the negligence count, as it related to Section 19-16(a), was reversed, and the case was remanded for further proceedings on the issue.
