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Attorney Grievance
Com’n of Maryland v. Sol Sheinbein 812 A.2d 981
(Md. 2002) Dec. 16, 2002 Court of Appeals of
Maryland. Misc. AG No. 37, Sept. Term 2001. Bar Counsel petitioned for disciplinary action
against attorney. The Court of Appeals referred the matter to the Circuit
Court, Montgomery County, S. Michael Pincus, J., for findings of fact and
conclusions of law. Attorney filed exceptions to the findings and conclusions.
The Court of Appeals, Cathell, J., held that disbarment was appropriate
disciplinary sanction for attorney’s conduct in encouraging and aiding his son
in absconding to another country while the son was a murder suspect. Disbarred. Eldridge, J., filed a dissenting opinion in
which Raker, J., joined. [**983] [*228] Melvin Hirshman, Bar
Counsel and John C. Broderick, Asst. Bar Counsel for the Attorney Grievance
Com’n of Maryland, for petitioner. Melvin Bergman, Beltsville, for respondent. Argued before BELL, C.J., and ELDRIDGE, RAKER,
WILNER, CATHELL, HARRELL, and BATTAGLIA, JJ. CATHELL, Judge. Bar Counsel, on behalf of the Attorney Grievance
Commission, petitioner, and at the direction of the Review Board, filed a
petition with this Court seeking disciplinary action against Sol Sheinbein,
respondent, [FN1] pursuant to Maryland Rule 16-709(a). [FN2] The petition
alleges that respondent violated provisions of Rule 8.4 of the Maryland Rules
of Professional Conduct (MRPC) based on complaints from Bar Counsel and Henry
R. Quintero. [FN3] The relevant provisions of Rule 8.4 provide that: FN1. Mr. Sheinbein was admitted to the Maryland
Bar on June 24, 1971 and is engaged in the practice of patent law from Israel,
his current place of residence. FN2. Rule 16-709(a) states that “[c]harges
against an attorney shall be filed by the Bar Counsel acting at the direction
of the Review Board.” We note that this reference is to Md. Rule 16-709(a)
as stated in the 2001 edition of the Maryland Rules. What was formerly
comprised in Rule 16-709 is now encompassed in several different rules in the
2002 edition. FN3. See BC Docket Nos.2000-113-16-6; 2000-222-00-6.
“It is professional misconduct for a lawyer
to: … (b)
commit a criminal act that reflects adversely on the lawyer’s honesty,
trustworthiness or fitness as a lawyer in other respects; … (d) engage in conduct that is prejudicial to the
administration of justice.” [*229] Pursuant to Maryland Rule 16-709(b) and
16-711(a), [FN4] this Court referred the matter to Judge S. Michael Pincus of
the Circuit Court for Montgomery County to conduct an evidentiary hearing and
to [**984] make findings of fact and conclusions of law with respect to
respondent’s case. Respondent was duly served and he filed a timely answer to
the petition. On March 20, 2002, that evidentiary hearing took place. Judge
Pincus heard testimony from two witnesses, Paul T. Stein, attorney for Samuel
Sheinbein and later for respondent, and Detective Paula Hamill, the primary
detective investigating the murder of Alfredo Tello, Jr. [FN5] The remaining
evidence admitted at the hearing included the application for a search warrant
and the warrant that had been served upon respondent prior to any of
respondent’s actions giving rise to the instant proceeding. Additionally,
respondent’s admissions were also among the evidence considered. Specifically,
the hearing judge admitted the following: FN4. Rule 16-709(b) states that the “Court
of Appeals by order may direct that the charges be transmitted to and heard in
any court and shall designate the judge or judges to hear the charges and the
clerk responsible for maintaining the record in the proceeding.” Rule 16-711(a) states that a “written
statement of the findings of facts and conclusions of law shall be filed in the
record of the proceedings and copies sent to all parties.” We note that these references to Md. Rules
16-709(b) and 16-711(a) are as stated in the 2001 edition of the Maryland
Rules. What was formerly comprised in Rule 16-709 is now encompassed in several
different Rules in the 2002 edition. What was Rule 16-711(a) is now encompassed
in Rule 16-759. FN5. Respondent’s alleged misconduct concerns
his actions in sending his son, Samuel Sheinbein, to Israel after respondent
had been told by his son that the son had killed Mr. Tello and after respondent
knew that Samuel was being investigated by Detective Hamill in relation to the
murder of Mr. Tello. “[T]he Statement of Charges in State of
Maryland v. Sol Sheinbein, District Court of Maryland for Montgomery County, Case No.
6D00071133; an Arrest Warrant on Charging Document, Warrant No. D980442735 in State
of Maryland v. Sol Sheinbein, District Court of Maryland for Montgomery
County, Case No. 6D00071133; Application for Statement of Charges in State
of Maryland v. Sol Sheinbein, [*230] Case No. 6D00071133; an Application for Search
and Seizure Warrant in Montgomery County, Maryland dated September 19, 1997,
and the resultant Search and Seizure Warrant issued on September 19, 1997, for
the residence located at 2940 Birch Tree Lane, Silver Spring, Montgomery
County, Maryland, then the residence of the Respondent and his family, which
included his son Samuel. Finally the Court received, as part of Petitioner’s
evidence, the transcript of the Secret Grand Jury Proceeding conducted on
September 25, 1997, which contained the eighty-two page transcript of the
testimony of the Respondent, Sol Sheinbein on that date.” After the hearing, Judge Pincus found, by clear
and convincing evidence, that respondent violated MRPC 8.4. Respondent filed in
this Court several exceptions to Judge Pincus’ findings of fact and conclusions
of law. We overrule these exceptions and accept the hearing judge’s findings of
fact and conclusions of law. Considering respondent’s egregious conduct, the
appropriate sanction is disbarment. I. Facts A. The Hearing Judge’s Findings of Fact From the evidentiary record below, we include part of Judge
Pincus’ findings of fact relevant to our inquiry and we hold that they were
established by clear and convincing evidence: “1. On or about September 16 or 17, 1997,
Alfred Enrique Tello, Jr. was the victim of a murder that took place in
Montgomery County, Maryland. 2. On September 19, 1997, at approximately 11:00
a.m., the body was discovered in the garage on the premises located at 14041
Breeze Hill Lane in Montgomery County, Maryland. … 4.
Upon discovery [of the body] the homicide division of Montgomery County Police
Department was notified. … [**985] [*231] 11. During a canvas of
the neighborhood pursuant to the discovery of the body, investigators located a
witness who observed a dark green car (possibly a Camaro) and an older white
car (possibly a Toyota) parked in front of the Breeze Hill Lane location. 12. Two individuals were observed and described
as one being a white male with an unkempt appearance, and another who was
described as a dark-complected white or possible Hispanic male, 5'11” in
height with an athletic build weighing between 180 and 200 pounds and having
dark hair. This witness identified these individuals as having been in the
front yard of the residence on either September 16 or 17, 1997. … 15.
These male subjects were described as being, white male, age 19 to 21, 5'
10“ with dark hair, athletic build, wearing a dark tee shirt and dark
pants and the other subject as a white male, 20 years of age, with medium brown
hair, husky build, wearing tan pants and a white tee shirt. 16. The investigators, based upon the witnesses
observations, searched the pathway from Birch Tree Lane, and with the use of
cadaver dogs, traced what appeared to be droplets of blood from the Breeze Hill
Lane address to a location on Birch Tree Lane that ended at the street across
from 2940 Birch Tree Lane, the residence of Samuel Sheinbein. 17. The Sheinbein residence on Birch Tree
Lane is directly behind the residence at 14041 Breeze Hill Lane where the
victim’s body was found. 18. Investigators identified that Robert Israel
Sheinbein, the brother of Samuel Sheinbein, and elder son of the Respondent
herein, owned a Pontiac Firebird and listed the 2940 Birch Tree Lane address on
his registration. … 22.
Homicide investigators ascertained Samuel Sheinbein was seventeen years of age,
5’10” in height with a muscular [*232] build and presented an appearance to be
Hispanic or a light skinned black. 23. They also determined, from the son of the
owner of the Breeze Hill Lane property, that Sheinbein lived on Birch Tree
Lane, behind the Breeze Hill Lane property, and drove a dark green Pontiac
Firebird with tinted windows, not unlike the body style of the Camaro one
witness identified as being in the street in front of the Breeze Hill Lane
premises. 24. All of the above information was
incorporated into an affidavit in support of an application for a search
warrant presented to a District Court judge in Montgomery County on September
19, 1997. 25. The search warrant was requested to perform
a search of the premises located at 2940 Birch Tree Lane, Silver Spring,
Montgomery County, Maryland in connection with the investigation of the murder
of Mr. Tello. 26. The warrant was sought to search the
Sheinbein residence for evidence of a crime of first degree murder … and any
other evidence relating to the crime of first degree murder. … 28. On September 19, 1997, the search warrant
and supporting affidavit, incorporating the above referred facts with greater
specificity and additional disclosures, was presented to the Respondent herein. 29. The Respondent at the time of the execution
of the search warrant read the contents and observed the search of his
residence, particularly the garage. [**986] 30. The search of Respondent’s
premises took approximately five hours and as a result investigators seized
receipts, a box for a circular saw, rubber gloves, a shirt with apparent blood
stains, and a police scanner. 31. At the time of the execution of the search
warrant, when the documents were presented to the Respondent, and after the
items were observed and seized pursuant to the warrant, a homicide detective
indicated to the Respondent [*233] the seriousness of the matter under
investigation and requested the Respondent contact her if he heard from his
son, which he indicated he would do. 32. At the time of the presentment of the search
warrant and its execution, the Respondent was asked if he owned a 'red Ron
Rico' garden cart. Respondent indicated he did but, when his garage was
searched the cart was not found. 33. That cart in fact was the one recovered at
the homicide scene. 34. The following day, September 20, 1997, at
1:30 p.m., the homicide detective who had served the search warrant upon the
Respondent spoke with him by telephone. She inquired whether or not Respondent
had heard from his son Samuel and was informed he had not. 35. At that time she was advised Respondent had
retained counsel. 36. That was the last time she spoke with
Respondent. 37. A warrant was issued for the arrest of
Samuel Sheinbein on the evening of September 20, 1997. Before the arrest
warrant could be executed and served upon Samuel Sheinbein, Samuel fled
Maryland and left the United States to travel to Israel, upon the suggestion of
the Respondent and with his aid and assistance. (Grand Jury Transcript, p. 65,
lines 3-13, p. 65, lines 15-25, p. 67, lines 1-17) 38. The Respondent paid for the plane ticket to
Israel, albeit a round trip ticket, and brought the passport of his son, Samuel
Sheinbein, to him in New York to enable him to leave the United States. 39. The Respondent, pursuant to a grant of
immunity, testified before the Grand Jury for the State of Maryland in
Montgomery County on September 25, 1997. 40. Prior to that grant of immunity, Respondent
and his family had invoked their Fifth Amendment privilege against
self-incrimination and, after being brought before a judge of the Circuit Court
of Montgomery County, where they again collectively asserted their Fifth Amendment
privilege, a ruling was made to compel their testimony. … [*234] 42. The Respondent admitted to the Grand
Jury, during his sworn testimony, that he was aware of his son’s acquaintance
with a friend by the name of Aaron Needle, a co-defendant in the murder of
Alfred Enrique Tello, Jr. The Respondent’s testimony, in connection with his
son Samuel’s relationship to Aaron Needle, indicated he did not wish his son to
associate with Needle due to their both having run afoul of the juvenile
authorities. 43. Respondent’s protestations to the contrary
notwithstanding he learned, shortly prior to the death of Mr. Tello, that
Needle and his son Samuel were associating again, and were in fact associating
quite closely and frequently. 44. The Respondent, in his testimony to the
Grand Jury, under oath, indicated he was unaware of his son’s association with
the victim, Alfred Enrique Tello, Jr., also known as Freddie Tello. 45. The Respondent further testified that, in
response to a specific question, [**987] he was uncertain
whether or not a Makita circular saw or box for such a saw was in his garage. 46. The Respondent admitted he did not have much
dealing within the garage, that it was in fact the domain almost exclusively of
his son Samuel. 47. Under questioning at the Grand Jury, the
Respondent under oath did testify that a blue tarp was known to have been
purchased for the use of his son in protecting a jet ski which they had
purchased for him. 48. The Respondent further testified under oath
before the Grand Jury that on Wednesday, September 17, 1997, at approximately
9:00 p.m. he returned to his home where his son Samuel was found. At that time
he had been contacted on his cell phone by his son Samuel and requested to
bring home a pizza for their dinner. He did so but, upon his return Samuel said
to him ‘boy that was quick’ and upon entering the house Respondent noticed a
very strong odor. 49. He observed a fan standing in the kitchen to
dissipate the smell and inquired of Samuel, relating to the fan, ‘what [*235] the hell is that?’
Samuel replied he had accidentally discharged the battery for his jet ski and
that, while recharging it, he connected it improperly and, as a result, while
he was in his bedroom, the battery caught fire and that was the cause of the
smell. 50. Respondent testified his son, upon
questioning why he had not attempted to charge the battery in the garage,
indicated a cord couldn’t reach and therefore he did it in the kitchen. 51. Respondent did not seek to investigate and,
although the smell permeated the entire house, including the upstairs bedroom
area, went about his business without further inquiry. 52. The Respondent’s testimony went on to reveal
that later on the night of Wednesday, September 17, 1997, at approximately 1:15
a.m., the morning of Thursday, September 18, 1997, he observed a car parking
across the street from his house. He noted this was unusual as all the homes
had sufficient driveway and garage space and did not require on the street
parking for his neighbors. 53. He observed an individual exit the car and
walk up the street towards the right of his house. 54. Respondent saw the driver walking on his
property, to the side of his garage, and then returning to the trunk of his
car, opening the trunk, taking out a bag, which appeared like a shopping bag,
and again approached his property to the side of the garage. 55. At that time he called the police and,
anticipating their arrival, opened the front door. When the Respondent opened
the door he was confronted by the individual who he then recognized to be Aaron
Needle. 56. At that time the police arrived and Needle
explained, in response to what he was doing there, that he was doing ‘nothing,
Sir nothing’ but that he came by to see Samuel and ‘give him something’. [*236] 57. The Respondent elected not to
proceed any further, identified the individual as someone he knew to the police
and thereupon they left. 58. The Respondent then questioned Needle about
what he was returning to Samuel. Needle indicated he was returning Samuel ‘his
garbage bags’. 59. The Respondent’s testimony went on to relate
he invited Needle into his home and observed, what appeared to be, a box of
garbage bags, and a yellow snake light. [**988] 60. Upon further
inquiry to Needle, Needle explained he had in fact come over to meet with
Samuel and go out with him. He indicated he and Samuel were going to see
‘Maria’. Needle identified her as a Puerto Rican girl who Samuel had met and
wanted to visit while her parents were away. 61. After the disclosures of the investigator,
the review of the supporting affidavit and the search warrant, the Respondent
had sufficient knowledge to believe his son was a suspect and probable
perpetrator of the murder of Mr. Tello. 62. In addition to the facts contained in the
affidavit to support the application for the search warrant, and the observance
of the items seized in his own garage, Respondent also observed ashes on his
garage floor, which investigators concluded was the situs of the dismembering and
attempted immolation of the body of Alfred Enrique Tello, Jr. At the time the Application for Search Warrant
and Search Warrant were presented to the Respondent by Detective Hamill on
September 17, 1997 [FN6], Detective Hamill learned the Respondent was a lawyer
and was advised by him that he had an earlier contact from Samuel by phone. On
more than one occasion, on the evening of September 19, 1997, between 9:30 and
approximately midnight, Detective [*237] Hamill was assured by
the Respondent that he would contact her whenever he heard from his son and
otherwise alert her of his whereabouts. His representation to the contrary, he
failed to do so although he did speak to Detective Hamill by phone at
approximately mid-day on Saturday, September 20, 1997. During that
conversation, although his son Robert had a telephone conversation with Samuel,
the substance of which was relayed to the Respondent, he [respondent] failed to
alert her [Detective Hamill] of that contact. Instead, he informed her the
family had retained Paul T. Stein, Esquire, on behalf of Samuel and that, in
the future, should there be any contact with Samuel, it should be through
counsel. FN6. We note that the hearing judge erred when
transcribing this date into these findings of fact. Consistent with the
transcript of Detective Hamill’s testimony, the date the warrant was presented
to respondent was September 19, 1997. 63. Respondent’s eldest son, Robert, received a
telephone call at or about 10:00 a.m., September 20, 1997. He relayed the substance
of that conversation to his parents that Samuel would call back at
approximately 3:00 p.m. At that time both Robert and the Respondent spoke to
Samuel. They urged him to come home which he indicated he was not prepared to
do as he was in Ocean City. Respondent neither informed counsel, Paul T. Stein,
Esquire, nor Detective Hamill, of his contact with Samuel at this time, nor did
he otherwise convey the fact that he believed his son to be in Ocean City,
Maryland. 64. At some time between 1:00 p.m. and 3:00 p.m.
on September 20, 1997, Samuel did again call Robert. Samuel was to call back at
which time he would speak to his father. When he did so his father indicated
Samuel should ‘get away from Aaron’. 65. Respondent contends his son Samuel expressed
suicidal ideation in connection with Aaron Needle also having expressed a
desire to commit suicide. It was at this time the Respondent told his son he
should go to Israel. 66. In furtherance of the efforts to
facilitate Samuel’s flight from the United States, the Respondent purchased
airplane tickets for Samuel to depart from [**989] New York just prior
to midnight September 21st and arrive in Tel Aviv, [*238] Israel at
approximately 10:00 a.m. Eastern time on Monday, September 22nd. 67. When the Respondent met with Samuel on
September 21st he was told he should take the Firebird, which Samuel and Needle
drove to New York, and which contained a sawed off shotgun, stun gun and
various handwritten notes from Samuel and Needle. The Court finds that at no time while the
Respondent was in the company of his son, Samuel, is there any indication that
Needle was also present or any longer in Samuel’s company. 68. Respondent did in fact turn over this
evidence of the crime to his counsel who in turn made it available to the
investigating authorities. Although the Respondent was unaware of the
issuance of the arrest warrant on September 21, 1997, he was aware, from his
observations of the results of the search warrant, his scrutiny of the
application for the Search Warrant, and his discussions with Detective Hamill,
that his son was a focus of the investigation and was a person who the
investigating authorities expressed a great desire to interview at least as a
witness if not a suspect. Nonetheless, Respondent obtained Samuel’s passport
prior to leaving Maryland and brought it to New York where he met his son. Also,
prior to the Respondent’s suggestions that his son leave the United States for
Israel, he was aware his son had admitted to killing Tello. (Transcript, p. 50,
lines 16-25, p. 51-56, lines 1-14).” [Alterations added.][Emphasis
added.] B. The Hearing Judge’s Conclusions of Law The
hearing judge subsequently concluded that respondent violated MRPC 8.4(b) and
(d). First, the hearing judge found that respondent’s actions satisfied the
elements of the common law offense of obstructing or hindering a police
officer, which include: [*239] “(1) A police officer engaged in
the performance of a duty; (2) An act, or perhaps an omission, by the
accused[, here the Respondent,] which obstructs or hinders the officer in the
performance of that duty; (3) Knowledge by the accused [, Sol Sheinbein,]
of facts comprising element (1); and (4) Intent to obstruct or hinder the officer by
the act or omission constituting element (2).” Cover v. State, 297 Md. 398, 413, 466
A.2d 1276, 1284 (1983) (alterations added). Judge Pincus specifically found
that respondent was “well aware of the duty that the police officer,
Detective Paula Hamill, was in the process of performing, i.e. the
investigation of the death of Alfred Enrique Tello, Jr.” and that
respondent knew of the Detective’s desire to question his son, who respondent
knew to be responsible for the death of Mr. Tello. In addition, respondent knew
that his subsequent arrangements to assist his son to flee to Israel, would
frustrate that officer’s performance of her duties. Judge Pincus did not find
respondent’s argument, that respondent’s intent was merely to save his son from
Mr. Needle’s influence and his son’s alleged threats of suicide, to be credible
and we are not prepared to disturb that credibility determination. He found
that the facts satisfied the requisite elements of common law obstruction, and
ruled that respondent had violated MRPC 8.4(b). The hearing judge determined that respondent
also violated MRPC 8.4(d) by [**990] “engag[ing] in conduct that is
prejudicial to the administration of justice.” This conclusion was based
on the court’s assessment that respondent’s actions were criminal in nature and
impaired the public’s confidence in the entire legal profession. Reciting
several egregious facts, the hearing judge concluded that respondent’s sending
his son to Israel in spite of the knowledge that his son was an “integral
party to a criminal investigation” was “in direct contravention to
the oath he swore in open court when he was admitted to the Bar of the Court of
Appeals of Maryland on June 24, 1971.” [*240] On May 22, 2002, respondent filed in
this Court several exceptions to Judge Pincus’ findings of fact and conclusions
of law. Petitioner did not file any exceptions. II. Discussion This Court reviews
attorney disciplinary proceedings according to the standard articulated in Attorney
Grievance Commission v. Gavin, 350 Md. 176, 189, 711 A.2d 193, 200 (1998): “This Court has original and complete
jurisdiction over attorney disciplinary proceedings. Md. Rule 16-709b; Attorney
Grievance Comm’n v. Adams, 349 Md. 86, 93, 706 A.2d 1080, 1083 (1998); Attorney
Grievance Comm’n v. Glenn, 341 Md. 448, 470, 671 A.2d 463, 473 (1996); Attorney
Grievance Comm’n v. Kent, 337 Md. 361, 371, 653 A.2d 909, 914 (1995); Attorney
Grievance Comm’n v. Powell, 328 Md. 276, 287, 614 A.2d 102, 108 (1992). Under our
independent review of the record, we must determine whether the findings of the
hearing judge are based on clear and convincing evidence. The ‘hearing court’s
findings of fact are prima facie 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)). Accordingly, the ultimate decision as to whether a
lawyer has violated professional rules rests with this Court. 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).” The case sub judice presents this Court
with a factual scenario that has not been previously before this Court. A. Absence of Self-Defense in Findings of
Fact Respondent takes no exception to the hearing judge’s Findings
of Fact 1 through 67. Respondent does however except to the last sentence of
Finding of Fact 68. The sentence in question states, “Also, prior to the
Respondent’s suggestions that his son leave the United States for Israel, he
was aware [*241] his son [Samuel Sheinbein] had admitted to killing
Tello.” (Alteration added). The basis for respondent’s exception is that
the hearing judge omitted a portion of respondent’s Grand Jury testimony,
which, according to respondent, causes the remaining language to be misleading.
The testimony in question relates to respondent’s knowledge of the details of
Samuel Sheinbein’s involvement in the Tello killing, as admitted by respondent’s
son.
We overrule this exception, as the hearing judge’s omission of this
testimony is irrelevant and, thus, not clearly erroneous. A hearing court’s
findings of fact are “prima facie correct and will not [be] disturb[ed]
unless they are shown to be clearly erroneous.” Attorney Grievance
Comm’n v. Goldsborough, 330 Md. 342, 347, 624 A.2d 503, 505 (1993). The disputed
omission of any mention of the son’s assertion of self defense has little
bearing on the outcome of this proceeding and is [**991] therefore, as to this
proceeding, irrelevant. [FN7] It is undisputed that respondent knew, prior to
his actions in encouraging and aiding his son in absconding to Israel, that his
son had committed a homicide. Respondent’s inappropriate conduct stems from
sending his son to Israel with the knowledge that Samuel had committed a
homicide in Maryland, not from the precise circumstances of Mr. Tello’s death
or whether a jury might ultimately credit his son’s assertion of self defense.
[FN8] The disputed finding does no more than state [*242] this in more concise
terms; it does not suggest any improper interpretation. FN7. The only possible relevance of this
self-defense testimony would be as to whether respondent had the requisite
intent to hinder Detective Hamill’s investigation. The hearing judge spoke to
this and it will be discussed by this Court infra. FN8. Although respondent stated that his son
claimed self-defense, that issue is for a jury to decide. Samuel was eventually
charged with a felony. In addition, in 1999, Samuel Sheinbein
pled guilty in an Israeli court to killing Mr. Tello and was sentenced to
twenty-four years in an Israeli prison. He is eligible for parole after sixteen
years of imprisonment and he is eligible to apply for weekend furlough
privileges after only four years. See Jesse Hallee, The Sheinbein Legacy: Israel’s
Refusal to Grant Extradition as a Model of Complexity, 15 Am. U. Int’l L.Rev.,
667, 705-06, 706, n. 214 (2001). B. Rule 8(b) This Court has held that Bar Counsel’s standard of proof for
a theory that respondent’s actions violate the MRPC by constituting a crime,
albeit no criminal conviction results, is to show that the underlying conduct
constitutes a crime by clear and convincing evidence; not by the criminal
“beyond a reasonable doubt” standard. See Attorney Grievance
Comm’n v. Childress, 364 Md. 48, 55, 770 A.2d 685, 689 (2001); Attorney Grievance
Comm’n v. Garland, 345 Md. 383, 390, 692 A.2d 465, 468 (1997); and Attorney
Grievance Comm’n v. Proctor, 309 Md. 412, 418, 524 A.2d 773, 776 (1987).
Using the clear and convincing standard, we hold that Bar Counsel presented
sufficient facts to illustrate that respondent committed the crimes of
obstructing or hindering a police officer. As such, respondent’s conduct
violates MRPC 8.4(b). 1. Common Law Obstruction Respondent excepts to the hearing judge’s
finding that he committed the common law offense of obstructing or hindering a
police officer through his actions of Sunday, September 21, 1997. His actions
include suggesting to his son, Samuel, that Samuel flee to Israel, transporting
of his son’s passport from Maryland to New York City to facilitate the fleeing,
purchasing of his son’s plane ticket to Israel and ensuring that his son
boarded that plane, all the while knowing that his son had killed Mr. Tello. We
overrule this exception.
The Maryland common law elements for the offense of obstructing or
hindering a police officer are: “(1) A police officer engaged in the
performance of a duty; (2) An act, or perhaps an omission, by the
accused which obstructs or hinders the officer in the performance of that duty;
(3) Knowledge by the accused of facts comprising
element (1); and [*243] (4) Intent to obstruct or hinder the
officer by the act or omission constituting element (2).” Cover, 297 Md. at 413, 466 A.2d at 1284. The primary
focus of respondent’s exception is to the hearing judge’s finding in reference
to the fourth element, respondent’s [**992] intent to obstruct or
hinder Detective Hamill.
There is no challenge to the establishment of either elements (1) or
(3), that Detective Hamill was “a police officer engaged in the
performance of a duty” and that respondent had “knowledge … of
facts comprising element (1),” respectively. Id. Respondent, in fact, had
direct personal knowledge that Detective Hamill was involved in the
investigation of Mr. Tello’s death. Respondent not only had specific
conversations with Detective Hamill regarding her investigation of Mr. Tello’s
death, but he examined the search warrant and the application for the warrant. Judge Pincus specifically found that the
application for the search warrant was examined by respondent while the search
was being executed. The application clearly describes the details of the
finding of Mr. Tello’s body, (an obvious homicide), the observations of
witnesses of two persons transporting something in a cart with a blue tarp
cover similar to a cart and tarp owned by respondent in the direction of the
house where the victim’s body was found, that the cart was found in proximity
to the body along with the blue tarp, that a trail of blood droplets led back
to the vicinity of respondent’s house, that respondent’s son met the witnesses’
description of one of the persons pushing the cart and that the respondent’s
son, at a relevant time, had obtained the location of the key that could be
used to enter the house where the body was found from the son of the owner of
that house. The application clearly stated that the warrant
to search respondent’s house was being requested for the purpose of seeking
evidence “of the crime of murder.” Respondent not only read these
documents, but observed the search warrant’s execution and even verbally agreed
to alert the Detective of his son’s whereabouts. Furthermore, respondent even
knew, [*244] from his son’s own admissions, that his son was in fact the person who killed
Mr. Tello. We reject any suggestion that there was a lack of clear and
convincing evidence establishing respondent’s knowledge that a homicide had
occurred and that his son was a primary suspect in a murder. Thus, these two
elements are satisfied.
Similarly, there is no doubt that respondent’s actions in devising and
facilitating his son’s departure to Israel obstructed and hindered Detective
Hamill in the performance of her lawful duties. These actions denied Detective
Hamill any opportunity to pursue investigatory leads and to contact, question,
and subsequently arrest Samuel Sheinbein, Respondent was fully aware that his
actions and omissions would impede Detective Hamill’s investigation. These
facts more than suffice to satisfy the first three elements of the common law
offense of obstructing or hindering an officer.
To satisfy the fourth element, there must be a showing, by clear and
convincing evidence, [FN9] that respondent intended to obstruct or hinder
Detective Hamill’s performance of her lawful duties. Respondent suggests that
the hearing judge’s finding of intent ignored our precedents that have held
that this element requires a finding that the accused have the specific intent
to obstruct or hinder the officer. Respondent further alleges that his actual
intent, in keeping information from Detective Hamill and assisting his son to
flee to Israel, was “to prevent his son from committing suicide or being
killed in some sort of confrontation with the police.” Respondent [**993] claims that he conjured
the plan that, “as a last resort,” put his son in a place, Israel,
“where his son would not be contemplating suicide or running around with a
gun in his car.” Respondent then cites to events occurring after his son had already
fled to Israel and his lack of knowledge regarding the arrest warrant for his
son as evidence to explain respondent’s intent. FN9. See Childress, 364 Md. at 55, 770 A.2d
at 689; Garland, 345 Md. at 390, 692 A.2d at 468; and Proctor, 309 Md. at 418, 524
A.2d at 776. The hearing judge said: [*245] “[T]he Court determines and
concludes that the Respondent had the commensurate requisite intent to obstruct
or hinder Detective Hamill in the performance of her duty. It is long
established that: ‘Unless there is evidence presented to the
contrary, the law presumes that a person intends the nature [sic] and probable
consequences of his acts. Thus, the requisite criminal intent may be inferred
from the defendants [sic] voluntary and knowing commission of an act which is
forbidden by law or from the defendant’s omission to do an act required by
law.’ ” [FN10] FN10. Judge Pincus quoted from the Maryland
Criminal Jury Instructions and Commentary, Second Edition, ¢¥ 3.01 General
Intent, p. 185 (citing Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct.
2450, 61 L.Ed.2d 39 (1979)).
We first look at the hearing judge’s findings in regard to the
credibility of respondent and determine whether those findings are clearly
erroneous. Only then can we determine what respondent knew on Sunday,
September 21, 1997, when he committed the acts resulting in this disciplinary action.
The hearing judge specifically found that, “While the Respondent’s
position is that his intent may have been to save his son from the influence of
Aaron Needle and the alleged threat of Samuel’s suicidal ideation, the Court
does not find these assertions to be credible.” The question that we must
answer is whether this finding of the hearing judge meets the clearly erroneous
test. The record is replete with facts that support
the hearing judge’s finding that respondent was not credible in testifying
before the Grand Jury that his intent was limited to saving his son from Mr.
Needle, suicide, or a shootout with the police. The most relevant facts come
from respondent’s own testimony [FN11] in front of the Grand Jury for
Montgomery County, [*246] which is testimony that, in and of itself,
undermines the credibility of respondent’s intent argument. Although respondent
may have had no actual knowledge of his son’s pending arrest warrant at the
time he arranged the flight to Israel, he certainly knew that the police, in
all likelihood, would eventually seek to arrest him. The following exchange
occurred at the Grand Jury proceeding: FN11. Respondent was not present at the March
20, 2002 hearing in front of Judge Pincus; he is presently in Israel. There is
currently an outstanding warrant for respondent’s arrest. See Arrest Warrant on Charging
Document, Warrant No. D980442735 in State of Maryland v. Sol Sheinbein, District Court of
Maryland for Montgomery County, Case No. 6D00071133. Therefore, respondent’s
testimony in this record is the transcript from respondent’s grand jury
testimony that was heard in front of the Montgomery County Grand Jury on
September 25, 1997. Judge Pincus heard no live testimony from respondent.
However, Judge Pincus was still in the best position to assess the credibility
of the evidence, as he did observe the demeanor and live testimony of the
remaining witnesses. See Attorney Grievance Comm’n v. Bakas, 323 Md. 395, 402, 593
A.2d 1087, 1091 (1991) (stating how, in the context of an attorney grievance
proceeding, a hearing judge is in the best position to assess the credibility
of witnesses). “Q[uestion of Prosecutor] Okay. Now Sunday
night, obviously, the trip is set up for Samuel to go to Israel. When did
Robert go to Israel? [**994] A[nswer of Respondent]
Okay. On Monday, we decided that there was no—on Sunday, there was no arrest
warrant whatsoever for Samuel, none whatsoever; that he was not a wanted
person, he was not a fugitive. He was not on the run officially by the police— Q Right. A—but he would be; that’s obvious.” Respondent’s Grand Jury Testimony at 69
(emphasis added) (alterations added). Here respondent plainly admitted that he
knew that his son would “obviously” be on the run from an arrest
warrant, although not yet “on the run officially.” Coupling this with
respondent’s testimony that he brought his son’s passport to him in New York
City, suggests that his overriding concern was to assist his son to circumvent
the law by absconding. [*247] In addition, respondent’s own testimony
debunks his theory that he bought a round trip ticket in contemplation of
Samuel’s return after Samuel was no longer in danger. Respondent’s testimony
suggests that the price of the ticket was his true concern. In his Grand Jury
testimony, respondent testified, “I went to Tower Air in New York City,
and I purchased the ticket, a one-way ticket—well, a round-trip ticket is
cheaper than one-way—on Tower Air.” The transcript of respondent’s testimony also
shows that respondent knew that Samuel was no longer in the presence of Aaron
Needle or Needle’s influence when respondent and his family met Samuel in New
York City. The fact that Samuel was by himself is contrary to respondent’s
theory that Needle presented an imminent danger to Samuel. In addition, the
hearing judge specifically found that Samuel turned over the car and the
shotgun when his brother, mother and respondent came to New York. At that time,
when in the presence of his family, Samuel was not in apparent imminent danger
of committing suicide. The totality of the facts illustrates that respondent’s
true intent was to facilitate his son’s escape from the United States, and at
least placing in doubt the ultimate apprehension of his son by a jurisdiction
in which respondent knew his son faced imminent and serious criminal charges.
As the hearing judge found, “ 'the requisite criminal intent may be
inferred from the defendant’s voluntary and knowing commission of an act which
is forbidden by law.' ” Here, respondent severally hindered, even
prevented, Detective Hamill from investigating Samuel Sheinbein in connection
with the death of Mr. Tello. Because respondent’s explanations as to his intent
were not found to be credible, we look again to see what else the record
reveals as to what exactly respondent knew at the time he helped Samuel go to
Israel in order to ascertain whether there is clear and convincing evidence as
to whether respondent’s specific intent was to take actions which he knew would
hinder or obstruct Detective Hamill. The record supplies ample evidence in that
regard. [*248] First and foremost, at the time he
helped Samuel abscond to Israel, respondent knew that his son had killed Mr.
Tello and that the killing was considered by the police to be a murder. It is
of no consequence to this disciplinary proceeding that Samuel professed that
the killing was in self- defense. The fact remains that respondent knew that
Samuel committed the homicide of Mr. Tello. Whether that killing was justified
is for a jury to decide, not respondent. Respondent, by his own testimony,
also knew that it was imminent that the police would seek out and arrest
Samuel. He was fully aware that the investigation had focused on his house and
his son because of the information contained in the [**995] application for a
search warrant, which he had read. Respondent thoroughly planned his son’s
getaway. He brought his son’s passport from Maryland to New York. As far as the
record reveals, there is no evidence that his son even had a thought of fleeing
to Israel until his father arrived in New York. Respondent was the person who
first made the suggestion to his son. [FN12] Respondent then proceeded to
purchase a plane ticket for his son and proceeded to make arrangements for his
son to stay with relatives in Israel. All of these events took place before respondent sent his son
to Israel, but after he knew his son had committed a homicide that was
considered by the police to be a murder. Respondent relies mainly on the fact
that he knew of no arrest warrant for his son at the time of his actions.
However, he, himself, admitted that his son “was not on the run officially
by the police—but would be; that’s obvious.” He was well aware of both
the inappropriateness of his son’s flight and of the impact it would have on
Detective Hamill’s criminal investigation. FN12. During respondent’s Grand Jury testimony,
the prosecutor directly asked respondent, “Whose idea was it to go to
Israel?” Respondent replied, “It was mine.” In conclusion, we hold that respondent had the
specific intent to obstruct or hinder the investigation and probable arrest of his
son by sending him to Israel. [*249] 2. Violation of Rule 8.4(b)
We hold that there was clear and convincing evidence that supports the
hearing judge’s conclusion that respondent committed the common law crime of obstructing
or hindering a police officer. [FN13] We hold that respondent’s conduct
necessarily violates Rule 8.4(b). Rule 8.4(b) states: FN13. Maryland Rule 16-759 requires that this
Court conduct a “de novo” review of the hearing court judge’s
conclusions of law. The Rule then states that this Court “may” pay
certain deference to the hearing judge’s findings and conclusions if we choose
to do so. We are not bound to them if there is clear and convincing evidence
indicating additional findings are appropriate. The rule in paragraph (B)
provides, as relevant to our discussion, that the “Court may confine its
review to the findings of fact challenged by the exceptions.” However, as
to conclusions of law, the review is completely “de novo.” In the
case sub judice the charges were general, i.e., that respondent had
violated the provisions of Rule 8.4(b) and (d); without specifying particular
criminal offenses respondent was alleged to have committed. “[T]he
ultimate decision as to whether a lawyer has violated professional rules rests
with this Court.” Gavin, 350 Md. at 189, 711 A.2d at 200 (citing
Garland,
345 Md. at 392, 692 A.2d at 469; Breschi, 340 Md. at 599, 667 A.2d at 663). “It is professional misconduct for a lawyer
to: … (b)
commit a criminal act that reflects adversely on the lawyer’s honesty,
trustworthiness or fitness as a lawyer in other respects.” Obstructing or hindering a police investigation
of an alleged murder has a profound impact on a “lawyer’s honesty,
trustworthiness or fitness as a lawyer in other respects.” It is difficult
to perceive that any other contention is even possible. Types of crimes that we have held to violate
Rule 8.4(b) include: (finding a violation of Rule 8.4(b) where an attorney was
convicted of simple possession of cocaine) Attorney Grievance Comm’n v.
Black,
362 Md. 574, 766 A.2d 119 (2001); (finding a violation of Rule 8.4(b) where the
attorney was guilty of failure to pay income taxes) Attorney Grievance
Comm’n v. Atkinson, 357 Md. 646, 745 A.2d 1086 (2000); (attorney violated Rule 8.4(b)
by committing acts of domestic violence against his wife) [**996] [**983] [*250] Attorney Grievance
Comm’n v. Painter, 356 Md. 293, 739 A.2d 24 (1999). In line with these cases, in the
circumstances here present, a lawyer’s ensuring that a police investigation is
thwarted by sending a main suspect known by him to be the killer in a murder
case to a distant country necessarily reflects adversely on that lawyer’s
trustworthiness. C. Rule 8.4(d)—Prejudice to the
Administration of Justice Generally,
this Court has found conduct to be prejudicial to the administration of justice
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. In the case sub
judice,
we find that respondent’s actions are so appalling that either shoe will fit;
respondent’s acts are both criminal in nature and directly harmful to the legal
profession.
A criminal conviction is not a prerequisite for finding a violation of
Rule 8.4(d) and conduct prejudicial to the administration of justice. Attorney
Grievance Comm’n v. Breschi, 340 Md. 590, 600, 667 A.2d 659, 664 (1995).
[FN14] Based on our discussions, supra, of how respondent’s actions constitute
the crimes of obstructing and hindering a police officer, it necessarily
follows that respondent’s criminal conduct is prejudicial to the administration
of justice in violation of Rule 8.4(d). FN14. Although respondent in this case has not
been convicted of any crime, there are charges pending in Montgomery County. See Statement of Charges in
State of Maryland v. Sol Sheinbein, District Court of Maryland for Montgomery, Case
No. 6D00071133; an Arrest Warrant on Charging Document, Warrant No. D980442735
in State of Maryland v. Sol Sheinbein, District Court of Maryland for
Montgomery County, Case No. 6D00071133; Application for Statement of Charges in
State of Maryland v. Sol Sheinbein, Case No 6D00071133. Respondent is also a
citizen of Israel and currently resides there. Finding respondent’s criminal conduct
prejudicial to the administration of justice finds support in a disciplinary
proceeding from the state of Alaska, albeit, the attorney there being disbarred
had been convicted of criminal offenses. In [*251] the case at bar,
respondent cannot be tried in Maryland because he remains in Israel. In In
re Webb,
602 P.2d 408 (Alaska 1979), the Supreme Court of Alaska found an attorney’s
conviction for being an accessory after the fact to be inherently prejudicial
to the administration of justice. In that case, the court said: “Duncan Webb’s criminal conduct resulting
in his conviction of the felony offense of accessory after the fact to first
degree murder is a serious crime within the meaning of Rule 23 of the Alaska
Bar Rules and constitutes engaging in illegal conduct involving moral turpitude
in violation of DR 1-102(A)(3) of the Code of Professional Responsibility as
well as engaging in conduct that is prejudicial to the administration of
justice
in violation of DR 1-102(A)(5) of the Code of Professional Responsibility.”
Id. at 410 (emphasis added). That court went on to
quote facts from Mr. Webb’s criminal case in a footnote that said: ” 'Webb did more than simply lie. After the
commission of a most brutal and coldblooded murder, he concealed or aided the
murderers with knowledge that they had committed first degree murder and with
intent that they might avoid or escape from arrest, trial, or conviction.’
” Id. at 410, n. 10 (quoting Webb v. State, 580 P.2d 295, 304
(Alaska 1978)). Here, respondent did more than lie or hide the truth from
Detective Hamill. He took intentional steps to improperly aid his son to avoid
the consequences of his son’s criminal [**997] conduct. Simply stated,
his actions were prejudicial to the administration of justice. Regardless of the criminal nature of
respondent’s actions, his thwarting of Detective Hamill’s investigation was
prejudicial to the administration of justice. “This Court has recognized
that a lawyer is subject to professional discipline under the Rules of Professional
Conduct for conduct the lawyer engages in outside his or her role as a
lawyer.” Attorney Grievance Comm’n v. Childress (Childress I), 360 Md. 373, 383, 758
A.2d 117, 122 (2000). “We have also held that a criminal conviction is not
a condition precedent for a finding of [*252] a violation of Rule
8.4(d) and conduct prejudicial to the administration of justice.” Id. at 385, 758 A.2d at
123. In Childress I, we did not address the outer margins of Rule 8.4(d), as the
admitted conduct was “arguably criminal conduct.” Id. at 385-86, 758 A.2d at
123. We went on to say that the harm, or potential harm, from that respondent’s
conduct was “patent.” Id. at 386, 758 A.2d at 123. When we have found a lawyer’s non-criminal
conduct to prejudice the administration of justice, that lawyer’s conduct
generally concerned his or her own legal practice or relationship with his or
her clients, [FN15] but this has not always been the case. [FN16] In the case sub
judice,
respondent’s patent law practice and his clients appear to be unaffected by
respondent’s private actions, whether those actions are criminal or otherwise,
in reference to his son’s criminal plight. Taking a broad view of the situation
allows us to see that it is clear that, although respondent’s interference with
Detective Hamill’s [*253] investigation does not directly affect his
practice or clients, it has considerable consequences on other facets of the
justice system. FN15. See Attorney Grievance Comm’n v.
Goldsborough, 330 Md. 342, 624 A.2d 503 (1993) (finding a violation of Rule
8.4(d) where the lawyer had punished his clients and co-workers by spanking); but
see Childress I, 360 Md. at 385, 758 A.2d at 123 (Where Judge Raker, for the
court, wrote, “While it is true that a review of our cases might suggest
that Rule 8.4(d) has been applied only to conduct which is related to the
practice of law, directly or indirectly, or where there has been a criminal
conviction or conduct which is criminal in nature, in this case we need not
address the margins of Rule 8.4(d) and whether a lawyer’s non-criminal, purely
private conduct might be a basis for discipline under the Rule”). FN16. In Attorney Grievance Comm’n v.
Richardson, 350 Md. 354, 712 A.2d 525 (1998) we said: “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 proceeding of which he is a
party or represents a party. 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 engenders
disrespect for the courts and for the legal profession may be prejudicial to
the administration of justice. Lawyers are officers of the court and their
conduct must be assessed in that light.” Id. at 368, 712 A.2d at 532. By assisting his son in the egregious manner
that he did, respondent essentially interfered with the natural progression of
the criminal justice system. Instead of Detective Hamill completing a full
investigation of respondent’s son, turning the case over to the Montgomery
County State’s Attorney’s Office for consideration of prosecution and, if
prosecuted, ultimately having a jury of respondent’s son’s peers decide Samuel
Sheinbein’s fate, respondent effectively usurped the role of twelve Maryland
citizens and substituted it [**998] with his own paternal instincts.
Respondent made it impossible for the justice system to work. A jury of his
peers may have believed that Samuel Sheinbein acted in self defense and might
have rendered a verdict of not guilty. As a direct consequence of the actions
of the respondent, we will never know how the Maryland criminal justice system
would have treated Samuel Sheinbein. This is inappropriate. This Court has long held lawyers to a higher
standard of conduct than the average citizen. See Attorney Grievance Comm’n
v. Alison, 317 Md. 523, 565 A.2d 660 (1989). In Alison, we stated: “Upon admission to the Bar, a lawyer
accepts and agrees to be bound by rules of conduct significantly more demanding
than the requirements of law applicable to other members of society. As the
Preamble to the Rules of Professional Conduct states: 'A lawyer is a representative of clients, an
officer of the legal system and a public citizen having special responsibility
for the quality of justice. * * * * * * 'A
lawyer’s conduct should conform to the requirements of the law, both in
professional service to clients and in the lawyer’s business and personal
affairs. A lawyer should use the law’s procedures only for legitimate purposes
and not to harass or intimidate others. A lawyer [*254] should demonstrate
respect for the legal system and for those who serve it, including judges,
other lawyers and public officials.’ ” Id. at 535, 565 A.2d at 665-66. In Alison, we found Mr. Alison’s
conduct, which included disorderly conduct, harassment, use of inappropriate
language in court and verbal abuse of officers of the court, to be conduct that
was prejudicial to the administration of justice. We said, “[t]hat such
conduct does not at the moment of its occurrence delay the proceedings or cause
a miscarriage of justice in the manner being tried is not the test. Conduct of
this type breeds disrespect for the courts and for the legal profession.” Id. at 536, 565 A.2d at
666. If a lawyer’s belligerent conduct and improper interference with a court
proceeding breeds contempt for the legal profession, so too must the serious
improper perversion of the judicial process at the hands of a lawyer in the
position in which respondent found himself. Inherent in an attorney’s duty is
the upholding of the law, even above his own or his family’s interests. As such,
“[p]ublic confidence in the legal profession is a critical facet to the
proper administration of justice.” Attorney Grievance Comm’n v. Clark, 363 Md. 169, 183, 767
A.2d 865, 873 (2001).
Here, a lawyer, who was familiar with the inner workings of the system
and had sworn to uphold its laws, did everything in his power to ensure that
his son circumvent that system and flee to another country, thus stalling an
ongoing, legal police investigation and possible prosecution. Maryland has a
paramount interest in maintaining the integrity of the judicial process of its
courts. See Alison, 317 Md. at 537, 565 A.2d at 666 (citing Cox v.
Louisiana, 379 U.S. 559, 563-64, 85 S.Ct. 476, 480-81, 13 L.Ed.2d 487, 492
(1965)). Respondent’s actions totally stymied the criminal justice system and
subsequently the judicial process in Maryland in respect to a serious criminal
offense. It is difficult to see, as respondent suggests, how respondent’s
blatant interference with an ongoing police investigation “would not seriously
impair public confidence in the entire legal profession” and not, as a
result, impair public confidence in the integrity of the courts. When [*255] an officer of the legal
system improperly thwarts the mechanisms within it, he shows a disrespect for
that system and the public confidence in [**999] the legal profession as
a whole necessarily suffers a devastating blow. There can be no question that
the public confidence in the legal profession has been adversely affected by
respondent’s conduct. III. Sanction We
enumerated the purposes behind and the factors to be considered in our
sanctioning process in Attorney Grievance Comm’n v. Clark when we stated: “This Court is mindful that the purpose of
the sanctions is to protect the public, to deter other lawyers from engaging in
violations of the Maryland Rules of Professional Conduct, and to maintain the
integrity of the legal profession. See Attorney Grievance Comm’n of Maryland
v. Hess,
352 Md. 438, 453, 722 A.2d 905, 913 (1999) (quoting Attorney Grievance
Comm’n of Maryland v. Webster, 348 Md. 662, 678, 705 A.2d 1135, 1143 (1998)).
We have stated that '[t]he public is protected when sanctions are imposed that
are commensurate with the nature and gravity of the violations and the intent
with which they were committed.' Attorney Grievance Comm’n of Maryland v.
Awuah,
346 Md. 420, 435, 697 A.2d 446, 454 (1997). Therefore, the appropriate sanction
depends upon the facts and circumstances of each particular case, including
consideration of any mitigating factors. See Attorney Grievance Comm’n of
Maryland v. Atkinson, 357 Md. 646, 656, 745 A.2d 1086, 1092 (2000); Attorney
Grievance Comm’n of Maryland v. Gavin, 350 Md. 176, 197-98, 711 A.2d 193, 204
(1998).” Clark, 363 Md. at 183-84, 767 A.2d at 873. In addition,
we have stated that “[i]mposing a sanction protects the public interest
'because it demonstrates to members of the legal profession the type of conduct
which will not be tolerated.' ” Attorney Grievance Comm’n v. Mooney, 359 Md. 56, 96, 753
A.2d 17, 38 (2000) (quoting Attorney Grievance Comm’n v. Ober, 350 Md. 616, 631-32,
714 A.2d 856, 864 (1998)) (citation omitted). [*256] This Court is not aware of any existing Maryland case that bears
directly upon the appropriate sanction for conduct such as that in the case at
bar, in that the facts here present are of first impression for this Court.
However, a few instances where this Court held that disbarment was appropriate
provide some guidance. We have consistently disbarred attorneys for the misappropriation
of money. See Attorney Grievance Comm’n v. Vanderlinde, 364 Md. 376, 773 A.2d
463 (2001) (disbarring attorney for misappropriation of funds unrelated to the
attorney’s practice of law); Attorney Grievance Comm’n v. Sabghir, 350 Md. 67, 710 A.2d 926
(1998) (disbarring attorney for misappropriation and fraud relating to money); Attorney
Grievance Comm’n v. Hollis, 347 Md. 547, 702 A.2d 223 (1997) (disbarring attorney for
misappropriating over $80,000); Attorney Grievance Comm’n v. White, 328 Md. 412, 614 A.2d
955 (1992) (disbarring attorney who misappropriated over $14,000 of client’s
money); Attorney Grievance Comm’n v. Ezrin, 312 Md. 603, 541 A.2d
966 (1988) (disbarring attorney for embezzling over $200,000 from his firm);
and Fellner v. Bar Association of Baltimore City, 213 Md. 243, 131 A.2d
729 (1957) (disbarring attorney for inserting slugs in lieu of quarters in
parking meters). We have also disbarred attorneys for various crimes. See
Maryland State Bar Ass’n v. Hirsch, 274 Md. 368, 335 A.2d 108 (1975), cert.
denied,
422 U.S. 1012, 95 S.Ct. 2638, 45 L.Ed.2d 676 (1975) (disbarring attorney for
bribery); Maryland State Bar Ass’n v. Agnew, 271 Md. 543, 318 A.2d
811 (1974) (disbarring attorney for willful evasion of income taxes). This
Court regards the interference with [**1000] the judicial process
resulting in a murder suspect escaping prosecution under Maryland law to be as
serious, or even more so, than the aforementioned conduct. [FN17] FN17. Respondent argues that we are not
“dealing with something like misappropriation, drunk driving or drug
abuse, where one need not be told that the conduct is wrong, it is clearly
patently wrong, and reflects not only on the individual, but on the
profession.” This Court fails to see how a lawyer (or even the least
educated citizen amongst us) needs to be told that assisting a suspect in a
homicide investigation, who he knows committed the homicide, to flee the
country is anything but patently wrong. [*257] Our sister states of Colorado, Alaska
and Oregon provide guidance more directly on point. While the seriousness of
the underlying disputes are different, there are close similarities to the
present case and People v. Chappell, 927 P.2d 829 (Colo.1996), where the Colorado
Supreme Court disbarred an attorney who advised and materially assisted her
client in a custody proceeding to flee the jurisdiction after the attorney
learned that a court- appointed expert was recommending that her client’s
husband be granted sole custody. The attorney knew that the recommendation was
not mandatory, but was likely to be followed by the court. The facts in Chappell, relevant to the case sub
judice
are: “[T]he respondent [attorney Lorraine
Chappell] told her client that the court would probably accept Dr. LaCrosse’s
[the court appointed attorney] recommendations. The wife states that the
respondent advised her as her attorney to stay, but as a mother to run. The
respondent also informed her client about a network of safehouses for people in
her situation, and helped her to liquidate her assets and empty her bank
accounts. The respondent contacted a friend of her client and asked the friend
to pack her client’s belongings from the marital home and to put them in
storage. The friend states that the respondent let her into the home with a
key, and gave her money, provided to the respondent by her client, to pay for
the moving and storage. The respondent kept the storage locker key according to
the friend. “The respondent appeared for the temporary
orders hearing on March 11, 1994 without her client. The respondent’s request
for a one week continuance was granted. Nevertheless, the court allowed the
husband to testify concerning the temporary orders. The respondent argued
against a change in the interim orders and stated that the child was doing well
in his own home. When the trial judge questioned her as to the whereabouts of
her client, the respondent replied that she was unable to answer because of the
attorney-client privilege. The court then ordered an immediate [*258] change of custody to
the husband, as well as continued support payments…. … “A permanent orders hearing was held in March 1995. The
wife testified that the respondent had explained 'the underground' to her, had
assisted in emptying her bank accounts, and had advised her on how to avoid
being caught…. “The respondent’s conduct violated R.P.C.
1.2(d) (a lawyer ’shall not counsel a client to engage, or assist a client, in
conduct that the lawyer knows is criminal or fraudulent'); R.P.C. 3.3(a)(2) (a
lawyer shall not knowingly fail to disclose a material fact to a tribunal when
disclosure is necessary to avoid assisting a criminal or fraudulent act by the
client); R.P.C. 8.4(b) (it is professional misconduct for a lawyer to commit a
criminal act by aiding the lawyer’s client [**1000] to commit a crime); and
R.P.C. 8.4(c) (it is professional misconduct for a lawyer to engage in conduct
involving dishonesty, fraud, deceit or misrepresentation).” Id. at 829-31 (alterations added). While Chappell involved a respondent
who was convicted of a crime arising out of her conduct and made affirmative
misrepresentations to a tribunal, the underlying conduct of respondent in the
case at bar is essentially the same. Like respondent, Ms. Chappell conceived
the idea for another to flee the jurisdiction, initiated the plan and
affirmatively assisted the fugitive in obtaining her goal of remaining
undetected. Ms. Chappell informed her client of the feasibility of fleeing
Colorado, financially assisted her departure and helped with arrangements for
places for her client to stay. Here, respondent did essentially the same thing.
He came up with the plan, brought Samuel his passport, bought him an airline
ticket to Israel and contacted his cousin there to set up a place for Samuel to
stay. He also subsequently fled to Israel, placing himself beyond the easy
reach of Maryland authorities. We find further support in the case of In re
Webb,
602 P.2d at 410, a case arising out of the Supreme Court of Alaska, [*259] where that court
disbarred an attorney for his conviction of accessory after the fact to murder.
Mr. Webb lied to police on several occasions and aided the murderers, with
knowledge of their crime, and “with intent that they might avoid or escape
from arrest, trial, or conviction.” Webb v. State, 580 P.2d at 304. Mr.
Webb asserted that his actions were the direct result of duress, as he claimed
the murderers threatened his life. The jury convicted him for accessory after
the fact and the appellate court later said: “It is true that Webb will probably be
disbarred and, if so, will no longer be able to engage in the practice of law.
He has brought great dishonor upon the legal profession. His criminal conduct,
employing conscious dishonesty, deserves greater condemnation than if it were
committed by one not obligated to adhere to high standards of honor and
integrity.” Id. (footnote omitted). The subsequent disciplinary
action, in turn, resulted in the disbarment of Mr. Webb for his actions in
assisting felons to escape justice. In re Webb, 602 P.2d at 410. In In re Garvey, 325 Or. 34, 932 P.2d
549 (1997), the Supreme Court of Oregon disbarred a lawyer engaged in serious
criminal conduct, holding that the conduct was prejudicial to the
administration of justice. While several claims of misconduct, including
negligence with respect to several of his clients, were alleged against Mr.
Garvey, the court found disbarment would have been appropriate even if only Mr.
Garvey’s criminal conduct was considered, as “Oregon lawyers who have engaged
in serious criminal misconduct have been disbarred, whether or not they have
been convicted of a crime.” [FN18] Id. at 44, 932 P.2d at 553.
In Garvey, the court found a serious crime had been committed when Mr.
Garvey brought his client, inmate Jeff Gordon, money to facilitate his client’s
escape from jail and later lied about those facts under [*260] oath. Id. at 39, 932 P.2d at 551.
Although Mr. Garvey was convicted for his crimes, he failed to appear for his
sentencing and was a fugitive from justice at the time of his disciplinary [**1002] hearing. Id. at 40, 932 P.2d at 551.
The Oregon court said: FN18. The Garvey court said,
“Application of those guidelines to the conduct of the accused establishes
that under the ABA standards, the appropriate sanction here is disbarment, even
without regard to the rule violations involving the Chavez and Garcia
[non-criminal] matters.” Id. at 44, 932 P.2d at 553 (alteration added). “[T]he accused aided his client’s escape
from a correctional facility, thereby substantially harming the court
procedures in that client’s criminal case. In those ways, the accused’s acts
prejudiced the administration of justice. … “The criminal acts of the accused caused actual and
substantial injury to the public and the legal system. He aided a client in
breaking the law and lied to the grand jury.” Id. at 42, 932 P.2d at 552-53. Although Mr.
Garvey’s criminal conduct included lying under oath and assisting his client to
escape from jail, it is essentially akin, in magnitude, to respondent’s conduct
of assisting his son to abscond to Israel. In the case sub judice, although yet to be
convicted of a crime, (in part because respondent, like Mr. Garvey, is a
fugitive), respondent knowingly and directly aided a murder suspect’s fleeing from
Maryland authorities. Respondent argues that his situation presents
“extenuating circumstances” that led to his abhorrent behavior. He
focuses on the timing of the situation and that it precluded “mature
reflection as to a ‘proper’ course of action.” This argument neglects to
mention the time and care respondent showed in devising an escape route for his
son. He thought enough in advance to bring his son’s passport from Maryland to
New York City in contemplation of his son’s need to leave the country. Respondent
also suggests that he “cooperated” with the authorities by turning
over information and evidence to the police, such as the car his son and Needle
drove to New York and its contents, which included a shotgun, stun gun, and
letters written by the two young men. This alleged “assisting” of
Detective Hamill’s investigation occurred only after respondent had encouraged
and assisted his son to flee beyond [*261] the reach of Maryland’s
jurisdiction. The prejudice to the administration of justice had already
occurred. Our own court’s precedent, case law from our
sister states, Bar Counsel’s recommendation of disbarment and the unique and
egregious factual scenario presented by respondent’s utter abandonment of
proper professional conduct in the face of the circumstances of Mr. Tello’s
murder leads this Court to only one conclusion: that respondent is no longer
fit to practice law. This is not a case of this Court passing moral
or criminal judgment on a father for trying to protect his youngest son, nor is
it the Court punishing a surrogate for a crime where the accused has escaped
the reach of Maryland’s law. In fact, respondent is currently beyond the reach
of the state’s jurisdiction. It is merely the process by which this Court
protects the public from attorneys whose actions fly in the face of their legal
obligations to the public and to their own profession. We shall disbar
respondent. IT IS SO ORDERED; RESPONDENT SHALL PAY ALL
COSTS AS TAXED BY THE CLERK OF THIS COURT INCLUDING THE COSTS OF ALL TRANSCRIPTS
PURSUANT TO MARYLAND RULE 16-715(c), FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR
OF THE ATTORNEY GRIEVANCE COMMISSION OF MARYLAND AGAINST SOL SHEINBEIN. Dissenting Opinion by ELDRIDGE, J., in which
RAKER, J., joins. The majority today holds that Bar Counsel
presented sufficient facts to establish that the respondent committed the crime
of obstructing or hindering a police [**1003] officer and that,
therefore, his conduct violated MRPC 8.4(b). [FN1] The majority [*262] states that
“[r]espondent’s inappropriate conduct stems from sending his son to Israel
with the knowledge that Samuel [his son] had committed a homicide in
Maryland.” Furthermore, the majority also finds respondent’s actions to be
“so appalling” and “egregious” that his conduct is prejudicial
to the administration of justice in violation of MRPC 8.4(d). [FN2] In fact,
the extreme language and tone of the majority opinion might lead a reader to
conclude that the respondent was the one who committed the homicide. Despite
the majority’s characterizations of the respondent’s conduct, I do not believe
that his conduct, when viewed separately from the underlying crime committed by
his son, constitutes misconduct by a criminal act under MRPC 8.4(b) or conduct
prejudicial to the administration of justice under MRPC 8.4(d). FN1. Maryland Rule of Professional Conduct
(MRPC) 8.4(b) provides that: “It is professional misconduct for a lawyer
to: * * * (b) commit a criminal act that reflects
adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in
other respects;” FN2. MRPC Rule 8.4(d) provides: “It is professional misconduct for a lawyer
to: * * * (d) engage in conduct that is prejudicial to the
administration of justice.” I. As
stated by the majority, quoting from Attorney Grievance Comm’n v. Gavin, 350 Md. 176, 189, 711
A.2d 193, 200 (1998), under the Maryland Rules, “ ‘[t]his Court has
original and complete jurisdiction over attorney disciplinary proceedings.'
” [FN3] In our independent review of the record, we must [*263] determine whether the
findings of the hearing judge, Judge Pincus, are based upon clear and
convincing evidence. Under [**1004] ordinary circumstances, a “hearing
court’s findings of fact are prima facie 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). Such deference is paid because
“[t]he hearing judge is in the best position to evaluate the credibility
of the witnesses and to decide which one to believe and … to pick and choose
which evidence to rely upon.” Attorney Grievance Comm’n v. Monfried, 368 Md. 373, 390, 794
A.2d 92, 101 (2002). Usually, it is the hearing judge who is uniquely
positioned to evaluate all aspects of a witness’s demeanor—including the
expression of his countenance, how he sits or stands, whether he is
inordinately nervous, his coloration during critical examination, the
modulation or pace of his speech and other non-verbal communication. These
factors may convince the observing judge whether the witness is testifying
truthfully or falsely. These [*264] same factors, however, are entirely
unavailable to a reader of the transcript. Cold paper records supply none of
this information. FN3. The rules promulgated by this Court purport
to give us original jurisdiction over contested adjudicatory attorney
disciplinary cases, and we have regularly exercised such trial court
jurisdiction, entering money judgments and equitable decrees when there were no
prior judgments or decrees by a court. The Constitution of Maryland, however, gives
this Court original jurisdiction in only two situations, set forth in Article
II, ¢¥ 6, and Article III, ¢¥ 5. Neither provision encompasses attorney
disciplinary cases. Except for those two situations, the cases have uniformly
held that the Court of Appeals may exercise appellate jurisdiction only. This
Court has consistently held that enactments purporting to confer original
jurisdiction on the Court of Appeals or the Court of Special Appeals are unconstitutional.
Shell Oil Co. v. Supervisor, 276 Md. 36, 40-44, 343 A.2d 521, 523-525
(1975), and cases there collected. The rules purporting to confer original
jurisdiction on this Court in contested attorney disciplinary cases present
another constitutional problem relating to the jurisdiction of Maryland courts.
Under those rules, a petition for disciplinary action is referred to a judge of
a circuit court to hold a hearing, make findings of fact, and make conclusions
of law. The circuit court judge, however, is not empowered to decide the case.
Instead, the trial judge forwards the findings and conclusions to another body
(i.e.,
this Court), and that other body renders the decision. See Maryland Rules 16-752
through 16-759. In Duffy v. Conaway, 295 Md. 242, 455 A.2d 955 (1983), this Court
held that a similar scheme, whereby a circuit court judge collected evidence
and found facts for another body, but where the circuit court judge was not
empowered to render a decision, violated the Maryland Constitution and that,
therefore, the circuit court judge had no jurisdiction in the case. We have never attempted to reconcile the rules
conferring original jurisdiction on the Court in contested attorney
disciplinary cases with the holdings in Shell Oil Co. v. Supervisor, supra, and Duffy v.
Conaway, supra, although jurisdiction is an issue which we will address even if
not raised by a party. One day, perhaps, the Court will address the matter. Thus, contrary to the majority’s view, the
instant case does not require us to give the normal deference to the hearing
judge’s findings on the respondent’s credibility. Because the respondent was
not present at the hearing below, Judge Pincus based his credibility
determinations solely upon the transcript of the respondent’s testimony at the
Grand Jury proceedings, the same cold record before us today. As such, the
members of this Court are just as capable of assessing the respondent’s
credibility as the hearing judge, and no special deference is warranted for
Judge Pincus’s findings concerning the respondent’s credibility. The majority also overlooks the principle that
“[t]he ‘clear and convincing’ standard of Rule [BV10 d] applies to the
measure of proof imposed upon the Attorney Grievance Commission in factual
determinations essential to establishing its case against the attorney. * * *
It does not apply to factual matters sought to be established by the attorney
in defense of the attorney’s position…. As to this, the preponderance of
evidence standard is the applicable measure of proof.” Attorney
Grievance Comm’n v. Bakas, 322 Md. 603, 606, 589 A.2d 52, 53 (1991), quoting Attorney
Grievance Comm’n v. Bailey, 285 Md. 631, 644, 403 A.2d 1261, 1268 (1979). See also
Attorney Grievance Comm’n v. Garfield, 369 Md. 85, 99 n. 13, 797 A.2d 757, 765 n. 13
(2002). Therefore, while it is incumbent upon Bar Counsel to prove each of the
charges by clear and convincing evidence, respondent need only establish facts
in his defense by a preponderance of the evidence. II. As
discussed above, when alleging that an attorney’s actions violate the MRPC by
constituting a crime, the standard of proof imposed upon Bar Counsel is to
prove each element of [*265] the offense by clear and convincing evidence.
[FN4] See [**1005] Attorney Grievance Comm’n v. Childress, 364 Md. 48, 55, 770
A.2d 685, 689 (2001). In light of this standard, the evidence presented by Bar
Counsel was insufficient to establish the requisite specific intent to hinder
Detective Hamill in the performance of her investigation. Moreover, I strongly
doubt that the respondent’s actions constituted the offense of hindering or
obstructing a police officer. Instead, the effect of the respondent’s
conduct, at most, was to prevent or delay a homicide prosecution by the State’s
Attorney
in Montgomery County in favor of a homicide prosecution, a conviction, and a
24-year prison sentence in Israel. FN4. “The quality of proof, to be clear and
convincing, has also been said to be somewhere between the rule in ordinary
civil cases and the requirement of criminal procedure—that is, it must be more
than a mere preponderance but not beyond a reasonable doubt. It has also been
said that the term ‘clear and convincing’ evidence means that the witnesses to
a fact must be found to be credible, and that the facts to which they have
testified are distinctly remembered and the details thereof narrated exactly
and in due order, so as to enable the trier of the facts to come to a clear
conviction, without hesitancy, of the truth of the precise facts in issue. Whether
evidence is clear and convincing requires weighing, comparing, testing, and
judging its worth when considered in connection with all the facts and
circumstances in evidence.” Attorney Grievance Comm’n v. Harris, 366 Md. 376, 389, 784
A.2d 516, 523 (2001), quoting Attorney Grievance Comm’n v. Mooney, 359 Md. 56, 79, 753
A.2d 17, 29 (2000). We noted in Cover v. State, 297 Md. 398, 400, 466
A.2d 1276, 1277 (1983), that, although the crime of hindering a police officer
in the performance of the officer’s duties was a statutory one in many States,
it remained a common law offense in Maryland. See also DiPino v. Davis, 354 Md. 18, 32, 729
A.2d 354, 361 (1999); Busch v. State, 289 Md. 669, 675, 426 A.2d 954, 957 (1981); Roddy
v. Finnegan, 43 Md. 490, 505 (1876); Howard v. State, 32 Md.App. 75, 82, 359
A.2d 568, 573 (1976). Determining the scope of the crime of
“hindering,” “obstruction,” or “interfering” is
difficult, however, as the cases addressing this offense do not make any
attempt to define or circumscribe the precise types of activities included in
these vague terms. [FN5] FN5. For a general treatment on what types of
acts have been deemed obstruction or hindering, see Note, Types of
Activity Encompassed by the Offense of Obstructing a Public Officer, 108 U. Penn. L.Rev. 388
(1960). [*266] Thus, the Cover Court, in analyzing
whether the State had proven the elements of the crime of obstruction or
hindering a police officer, found it helpful to separate conduct capable of
hindering a police officer into three categories, moving progressively from the
more direct obstructions to the more attenuated ones. The Court in Cover, 297 Md. at 405-406, 466
A.2d at 1280, quoting Lidstone, The Offence of Obstruction: (2) Obstructing
Freedom?,
[1983] Crim. L.Rev. 29, stated (footnotes omitted): “Positive direct obstruction: ‘[T]hose
cases in which the constable acts directly against the citizen or his property
and is physically resisted.’ Id. at 30. “Passive direct obstruction: Those cases
‘in which the constable seeks to make the citizen act directly, and the citizen
refuses or fails to act as required.’ Id. “Positive indirect obstruction: Those cases
in which ‘the police are not acting directly against the citizen but are acting
indirectly against other citizens who are, or may be, about to commit offences
against the criminal law, and the citizen does an act which obstructs them in
their general duty to prevent or detect crime, intending to frustrate the
police operation.’ Id.” In the case at bar, the charged conduct at issue
falls into this last attenuated category—an alleged indirect hindering. The only actions of the respondent, forming the
basis for the majority’s conclusions, are respondent’s “assist[ing] his
son to circumvent the law by absconding.” Bar Counsel had also alleged
that respondent’s failure to notify Detective Hamill of his contacts with
Samuel was an omission hindering Detective Hamill in the performance of her
duties. This notion can be disposed of by noting that when these actions transpired,
it is undisputed that the [**1006] respondent had not been notified that an
arrest warrant had issued for Samuel Sheinbein. Detective Hamill
testified that respondent’s attorney, Paul T. Stein, was informed of the arrest
warrant the day after Samuel went to Israel. Until an arrest warrant issued,
there was no legal duty imposed upon the respondent to [*267] inform Detective Hamill
of his son’s contacts and whereabouts. As such, this omission cannot be the
basis of the second element of the charge of obstruction or hindering. The
cases finding an obstruction or hindering resulting from an omission or failure
to follow police instructions are clearly distinguishable. These cases
typically involve refusal to follow an officer’s order to move or disperse. See,
e.g., City of Chicago v. Meyer, 44 Ill.2d 1, 253 N.E.2d 400 (1969), cert.
denied,
397 U.S. 1024, 90 S.Ct. 1262, 25 L.Ed.2d 534 (1970); City of Chicago v.
Lynd,
47 Ill.2d 205, 265 N.E.2d 116 (1970), cert. denied, 402 U.S. 923, 91 S.Ct.
1383, 28 L.Ed.2d 662 (1971). After a comprehensive review of the obstruction
or hindering cases, this Court in Cover v. State, supra, 297 Md. at 413, 466
A.2d at 1284, articulated the elements of the offense: “(1) A police officer engaged in the
performance of a duty; “(2) An act, or perhaps an omission, by the
accused which obstructs or hinders the officer in the performance of that duty;
“(3) Knowledge by the accused of facts
comprising element (1); and “(4) Intent to obstruct or hinder the
officer by the act or omission constituting element (2).” Furthermore, we acknowledged that it is often
difficult to determine what acts or omissions constitute obstructing or
hindering the performance of an officer’s duty. Ibid. The respondent does not challenge the
establishment of the first and third elements of the offense, namely that
Detective Hamill was a police officer engaged in the performance of her duties
and that respondent had knowledge of her involvement in the matter.
Nevertheless, Bar Counsel failed to establish the second element, i.e., an act or omission that
obstructs or hinders, and the fourth element, i.e., a specific intent to
hinder or obstruct. [*268] A. The
underlying case against respondent’s son presented a situation where two
different sovereigns had jurisdiction to prosecute Samuel Sheinbein for his involvement in
the homicide. [FN6] Without question, the State of Maryland had jurisdiction to
prosecute Samuel based on territoriality. Under this concept, Maryland had
plenary power to make its substantive laws applicable to any person or
occurrence within its territorial boundaries and plenary power to enforce its
laws within its territorial boundaries. Additionally, however, the State of
Israel had jurisdiction to prosecute Samuel based on his Israeli nationality.
[FN7] As a basis for the [**1007] jurisdiction to prescribe, the
nationality principle historically referred to a nation’s authority to control
the conduct of its citizens, no matter where that conduct took place. See Restatement (Third) of
Foreign Relations Law of the United States, § 402(2) (1987). [*269] See also Blackmer v.
United States, 284 U.S. 421, 437 n. 2, 52 S.Ct. 252, 254 n. 2, 76 L.Ed. 375, 382
n. 2 (1932). FN6. A state needs two types of jurisdiction in
order to prosecute an individual: jurisdiction to prescribe and jurisdiction to
enforce. See Restatement (Third) of Foreign Relations Law of the United
States, pt. IV introductory note (1987). Jurisdiction to prescribe is “the
authority of a state to make its substantive laws applicable to particular
persons and circumstances.” Ibid. Jurisdiction to enforce is the authority
of a state to use its resources “to induce or compel compliance with its
law [s]”. Ibid. For a thorough discussion, see Barry E. Carter &
Philip R. Trimble, International Law 712-801 (3d ed.1999). See also Rest. (Third) of
Foreign Relations Law, supra, § 401. FN7. Under principles of Customary International
Law, nationality is obtained in different ways. Jus Soli refers to laws that
confer nationality because of birth in a state’s territory. Jus Sanguinis refers to laws that
accord nationality based on birth to parents who are nationals of that State.
On February 25, 1999, the Israeli Supreme Court held that Samuel Sheinbein could not be extradited
to the United States. This ruling was based on the passage of a 1978 amendment
to Israel’s Extradition Law prohibiting extradition for offenses committed
after an individual has obtained Israeli nationality. This decision led to
Samuel Sheinbein’s ultimate conviction for premeditated murder on September 2, 1999,
by the Tel Aviv District Court, and sentencing on October 25, 1999, to
twenty-four years in prison, the longest sentence ever imposed on a juvenile in
Israeli history. Under the Act of State Doctrine, this Court is not at liberty
to inquire into the validity of the Israeli courts’ holdings. The rulings that
Israel had jurisdiction to prosecute the homicide are binding upon us. See
generally Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S.Ct.
923, 11 L.Ed.2d 804 (1964). Thus, the question inevitably arises, in a
situation where two sovereigns have jurisdiction over a particular offense,
whether an attorney or parent, who has counseled his or her client or child to
proceed to the jurisdiction with the lesser penalty, has committed any
misconduct? The answer to this question is clearly “No.” Submission
to custody in one jurisdiction, whether the result of an attorney’s advice, or
a parent’s advice, or the client’s uncounseled choice, or a decision by the
Attorney General, necessarily hinders prosecution in the other jurisdiction.
Hence, even assuming arguendo that the respondent had sent his son to Israel
with the specific intent of opting for Israel’s prosecution over prosecution in
Maryland, the action is not criminal. In sum, respondent’s “devising and
facilitating his son’s departure to Israel,” in the language of the
majority opinion, does not bring him within the ambit of the offense of
obstruction or hindering. Indeed, when more than one sovereign has
jurisdiction to prosecute a person for homicide, it appears to be entirely
appropriate for those on the prosecution side to send the alleged perpetrator
to the sovereign likely to impose the most severe punishment. [FN8] According
to the majority opinion, however, it is not appropriate for those on the
defense side to send the alleged perpetrator to the sovereign likely to impose
a less severe punishment. If prosecutors are free to forum-shop for a
jurisdiction with more severe penalties, or a broader capital punishment
statute, when choosing where to prosecute the accused, the defense should not
be punished for sending the accused to a jurisdiction with less severe maximum
penalties. FN8. See Susan Schmidt and Josh White, Sniper
Suspects Handed to Va. for Trials, WASH. POST, Nov. 8, 2002, at A1, reporting that
the decision to prosecute sniper suspects John Allen Muhammad and John Lee
Malvo in Virginia instead of Maryland was “based on which jurisdictions
had the best law, the best facts and the best range of available
penalties.” (Internal quotations omitted). [*270] It would be a different case if there
were any evidence in the record that the respondent had either tried to evade
prosecution in Israel or had sent his son to a country with no jurisdiction to
prosecute the homicide. [FN9] But that is not the case [**1008] before us. Not only did
the respondent dispatch his older son, Robert, to bring Samuel back to Maryland
to face charges, but once Samuel arrived in Israel, there was no attempt to
hide him from the Israeli authorities, or to send him out of Israel to any
number of neighboring countries. It was only a matter of days before the
Israeli police took custody of Samuel, unobstructed and unhindered. [FN10] FN9. The respondent’s Grand Jury testimony
reveals that, when he sent his son Robert to Israel to bring Samuel back,
Samuel pleaded with his father, “[c]an’t you send me to a country where
they can’t catch me? Can't you send me to Libya, Iraq?” See respondent’s Grand Jury
Testimony at 72. There is no evidence that such a plan was ever contemplated by
the respondent. Nonetheless, the majority opinion is written as if the
respondent did send Samuel to a place where he could not be prosecuted. FN10. Compare this case to the homicide case
against former hippie guru Ira Einhorn. In that case, the defendant fled the
United States on the eve of his trial in Philadelphia, in 1981. Using different
aliases, he successfully evaded detection for sixteen years in Europe before
being arrested in France in 1997. He was returned to the United States in July
2001, but only after prosecutors agreed to a French request not to seek the
death penalty and to have his 1993 first-degree murder conviction in
absentia
vacated by means of special legislation passed by the Pennsylvania Legislature.
The legal saga ended with his conviction on October 17, 2002. See Jacqueline
Soteropolous, Ira Flops With Jury, PHILA. INQUIRER, Oct. 18, 2002, at A1; Maida
Cassandra Odom, Einhorn “Looking Forward” To Testifying, BOSTON GLOBE, Sept. 22,
2002 at A11. Additionally, the majority claims that the
respondent’s conduct “denied Detective Hamill any opportunity to pursue
investigatory leads.” Yet, the respondent allowed Detective Hamill to
execute the search warrant at his home and cooperated with her by providing her
with Samuel’s credit card number, as well as his son’s cellular phone number.
In light of these facts, the only other “investigatory leads” for
Detective Hamill to cull would result from questioning Samuel. Two points should be made with regard to this.
First, even if the respondent had contacted Detective Hamill upon hearing [*271] from his son, the
likelihood that any attempt at questioning Samuel would have elicited
investigatory leads is remote. Unlike a witness, who can be compelled to testify
under the sanction of contempt, Samuel was free to invoke his constitutional
privilege against self-incrimination, and likely would have, as his entire
family had done prior to the respondent’s testifying before the Grand Jury. See Findings of Fact and
Conclusions of Law at 6. This is especially likely since the record reflects
that the respondent retained an attorney, Paul T. Stein, for his son the
morning after the search warrant was executed. Under Massiah v. United
States,
377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), even if the opportunity for
questioning Samuel had presented itself, once the arrest warrant issued
Detective Hamill could not have questioned Samuel without his attorney present.
Thus, with his attorney present during questioning, it is extremely doubtful
that Samuel would have given Detective Hamill any investigatory leads. Secondly, it bears repetition that, at most, the
effect of the respondent’s conduct was to prevent or delay a homicide
prosecution by the State’s Attorney in Montgomery County in favor of a
prosecution, conviction, and sentencing in Israel. Samuel’s departure to Israel
on the evening of September 21st could not have “denied Detective Hamill
any opportunity to pursue investigatory leads,” because the record reveals
that the arrest warrant was issued on September 20th. By the time Samuel
departed, Detective Hamill’s investigation was complete; the evidence necessary
for an arrest had already culminated into a warrant, and the State’s case
against Samuel Sheinbein had entered the prosecution phase. Although a Maryland
State’s Attorney may have been hindered in prosecuting a high profile case,
there [**1009] simply was no hindering of a police officer. [FN11] FN11. As to the “high profile” nature
of the case, it should be noted that Bar Counsel, in oral argument before this
Court, in response to a question concerning the delay in bringing the case,
stated: “when the publicity came up, I remember reading it in the paper
and I opened a Bar Counsel file on the strength of that….” [*272] B. Another necessary element of obstruction or hindering a
police officer is the “[i]ntent to obstruct or hinder the officer by the
act or omission constituting [the second] element.” Cover v. State,
supra,
297 Md. at 413, 466 A.2d at 1284. Here, a holding of obstruction or hindering
must turn on whether Bar Counsel established, by clear and convincing evidence,
that respondent had the requisite specific intent to hinder Detective Hamill’s
investigation by sending Samuel to Israel. We have recently explained the
meaning of specific intent in Chen v. State, 370 Md. 99, 111 n. 5,
803 A.2d 518, 524 n. 5 (2002), quoting Harris v. State, 353 Md. 596, 603, 728
A.2d 180, 183 (1999): “ ‘[S]pecific intent is not simply the
intent to do the immediate act but embraces the requirement that the mind be
conscious of a more remote purpose or design which shall eventuate from the
doing of the immediate act. Though assault implies only the general intent to
strike the blow, assault with intent to murder, rob, rape or maim requires a
fully formed and conscious purpose that those further consequences shall flow
from the doing of the immediate act.’ ” (Additional quotation marks
omitted). Thus, in this case, the mere act of sending
Samuel to Israel alone is not enough. It must be shown, by clear and convincing
evidence, that the respondent sent Samuel to Israel with the conscious purpose
of frustrating Detective Hamill’s investigation. The respondent’s Grand Jury testimony discloses
that his actual intent in sending Samuel to Israel was (a) to prevent him from
committing suicide; (b) to distance his son from the influence of Aaron Needle;
and (c) to avert the possibility of a violent confrontation with the police.
His testimony also reveals that he implored his son to surrender to the
Maryland police but that Samuel was adamant in his refusal to do so. Moreover,
the respondent further testified before the Grand Jury that, upon being
apprised of the issuance of an arrest warrant, he sent his eldest son, Robert,
to Israel to collect [*273] Samuel and bring him back to Maryland to face
the authorities. Given the confluence of factors that presented themselves in a
relatively short period of time, respondent claims that he had little time for
reflection. He then stated, “I took his passport with me in the event
nothing else worked.” Respondent’s Grand Jury Testimony at 66-67. Based on his reading of the respondent’s Grand
Jury testimony, the hearing judge found that the testimony of the respondent’s
actual intent was not credible. The judge relied on the oft-quoted presumption
that “a person intends the natural and probable consequences of his acts.
Thus, the requisite criminal intent may be inferred from the defendants’
voluntary and knowing commission of an act which is forbidden by law or from
the defendant’s omission to do an act required by law.” As explained
earlier, however, the respondent did not commit an act forbidden by law nor did
he omit to do an act required by law. Additionally, Israel’s ultimate refusal
to extradite was neither a natural nor probable consequence of the respondent’s
sending his son there. Finally, since the [**1010] hearing judge could
only look to the transcript from the Grand Jury, his finding with respect to
the respondent’s credibility is not entitled to any special deference. The majority nevertheless states that
“[t]he record is replete with facts” supporting the hearing judge’s
finding that the respondent was not credible in testifying before the Grand
Jury about his actual intent. Among other things, the majority claims that two
separate comments made by the respondent during his Grand Jury testimony
undermine his credibility. First, the majority cites the following exchange
(respondent’s Grand Jury Testimony at 69.): “Q[uestion of prosecutor] Okay. Now Sunday
night, obviously, the trip is set up for Samuel to go to Israel. When did
Robert go to Israel? A[nswer of respondent] Okay. On Monday, we
decided that there was no—on Sunday, there was no arrest warrant whatsoever
for Samuel, none whatsoever; that he was not a [*274] wanted person, he was
not a fugitive. He was not on the run officially by the police— Q Right. A—but he would be; that’s obvious.” From this exchange, the majority asserts that
the respondent “plainly admitted” that he knew his son would
“obviously” be on the run from an arrest warrant. Yet, the phrase
“but he would be; that’s obvious” is susceptible to various
interpretations. It may just mean that it was obvious, in hindsight, that his
son would be wanted by the police. This equivocal phrase is hardly enough to
meet Bar Counsel’s burden to clearly and convincingly prove that the respondent
intended to hinder Detective Hamill’s investigation. The second bit of testimony relied on by the
majority, as support for the hearing judge’s finding on the respondent’s
credibility, relates to the purchase of Samuel’s airline ticket. In response to
a question about how Samuel’s voyage was financed, the respondent stated,
“I went to Tower Air in New York City, and I purchased the ticket, a
one-way ticket—well, a round-trip ticket is cheaper than a one-way—on Tower
Air.” Respondent’s Grand Jury Testimony at 67. The majority declares that
this statement alone discredits the respondent’s argument that he purchased a
round-trip ticket in contemplation of Samuel’s return. But this misses the
point. Even if the respondent’s purchase of a round-trip ticket was based
solely on the price differential, this does not demonstrate by clear and
convincing evidence that the respondent did not contemplate his son’s return
once the immediate crisis had diffused. Indeed, the facts that developed in the
days immediately following Samuel’s departure refute the majority’s theory. It
is undisputed that the respondent sent his son, Robert, to Israel to bring
Samuel back to this country. The obstacle to Samuel’s return was not the want
of a return ticket. Next, the majority argues that, because Samuel
was alone when he met with his family in New York City, he was no longer in
imminent danger of being under Aaron Needle’s unwanted influence. Yet, the
respondent’s Grand Jury testimony [*275] reveals a long history
of distrust toward Mr. Needle, which was no doubt resurrected and exacerbated
by the present circumstances. Moreover, the respondent was aware that his son
had driven to New York with Mr. Needle; consequently, although Mr. Needle was
not present at the family meeting, he probably was not very far away. Thus, I
fail to discern any evidence casting doubt upon the respondent’s credibility when
he claimed that he wanted to distance his son from Mr. Needle. Finally, the majority contends that there was no
“apparent imminent danger of [**1011] [Samuel] committing
suicide” in the presence of his family in New York. This is especially
true, the majority argues, because Samuel had surrendered the shotgun to the
respondent upon the family’s arrival. Under the circumstances, however, it is
reasonable that the respondent was truly concerned that his son would take his
own life. The respondent was well aware that his son had been involved in a
grisly homicide, whether or not in self- defense, and that Samuel was not
thinking clearly at this time. The fact that Samuel was no longer in possession
of the shotgun only eliminated one means of killing himself. So long as Samuel
was still expressing suicidal thoughts, it is credible that the respondent, as
his father, was distressed over the possibility of his son’s suicide. Albeit in
hindsight, I am also mindful of the fact that Mr. Needle, who likewise had expressed
suicidal inclinations in New York, ultimately hanged himself on April 18, 1998,
two days before jury selection was to begin in his trial. There must be affirmative, clear and convincing
evidence of the respondent’s specific intent to hinder a police officer. That
is, even if the respondent’s testimony as to his intent is not deemed credible,
this legal conclusion cannot supplant the affirmative showing, by clear and
convincing evidence, that Bar Counsel must establish with regard to his
specific intent. It is a well- settled principle in the law that lack of
credibility, without more, is not ipso facto affirmative evidence
sufficient to meet a proponent’s burden of proof on an intent element in a
charge. See, e.g., [*276] VF Corp. v. Wrexham Aviation Corp., 350 Md. 693, 711, 715
A.2d 188, 196 (1998) (The finder of fact’s “prerogative not to believe
certain testimony, however, does not constitute affirmative evidence of the
contrary”); Attorney Grievance Comm’n v. Clements, 319 Md. 289, 298, 572
A.2d 174, 179 (1990) (“A refusal to believe evidence of a respondent,
however, does not, of itself, supply affirmative evidence of the …
[misconduct] charged”). Furthermore, on the basis of the Grand Jury
testimony, the hearing judge had little basis for determining whether the
respondent was telling the truth. The record is not so much “replete”
with facts supporting a finding of non- credibility, as it is replete with
cold-record testimony susceptible of various interpretations. Therefore, I
conclude that Bar Counsel did not present clear and convincing evidence of a
specific intent to hinder or obstruct Detective Hamill’s investigation. In sum, Bar Counsel did not provide proof, by
clear and convincing evidence, that respondent committed the common law offense
of obstruction or hindering a police officer. I do not agree that an attorney
or father has criminally obstructed or hindered police activity in the case
where two jurisdictions have the authority to prosecute an offense, and the
attorney advises his client, or the father advises his son, to go to the
jurisdiction with the less severe sanction. Moreover, when the only
“hindering” is to frustrate the questioning of one who has been
accused of a crime, and who is certain to invoke the privilege against self-incrimination,
I do not believe that the offense of hindering has occurred. Nor do I believe
that Bar Counsel proved, by clear and convincing evidence, that the respondent
had the requisite intent to hinder Detective Hamill in the course of her
duties. Consequently, no misconduct by a criminal act, in contravention of MRPC
8.4(b), is present in this case. III. The
majority also concludes that the respondent violated MRPC 8.4(d) by engaging in
conduct that is prejudicial to the administration of justice. Generally, this [**1012] Court has found [*277] conduct to be in
violation of Rule 8.4(d) under two circumstances: First, when there has been
conduct that is criminal in nature, or second, when the lawyer’s conduct
concerned his own legal practice or his relationship with his clients. [FN12]
This is [*279] consonant with the guidance [**1013] set forth in the
Comments to the ABA Model Rules of Professional Conduct (MODEL RULES OF PROF'L
CONDUCT R. 8.4 cmt. 2 (2002) (emphasis added)): FN12. A survey of cases alleging a violation of
Rule 8.4(d) or its predecessor, DR 1-102(A)(5), brought before this Court in
the past ten years, reveals that, during that period, no attorney has been
found in violation of Rule 8.4(d) unless his conduct was either criminal or
involved his legal practice or clients. The following cases found a violation of 8.4(d)
due to the respondent’s conduct being criminal: Attorney Grievance Comm’n v.
Childress, 364 Md. 48, 770 A.2d 685 (2001) (pursuing a child on the
Internet); Attorney Grievance Comm’n v. Waters, 2001 Md. LEXIS 864
(2001) (willful failure to file his income tax returns); Attorney Grievance
Comm’n v. Angst, 369 Md. 404, 800 A.2d 747 (2002) (failure to fulfil statutory
obligations as an employer to withhold employees’ state income taxes and to pay
amounts owed to the Comptroller, failure to file the appropriate returns when
due); Attorney Grievance Comm’n v. Clark, 363 Md. 169, 767 A.2d 865 (2001)
(repeated failure to timely file withholding tax returns, to remit the taxes
withheld, and to hold the withheld taxes in trust); Attorney Grievance
Comm’n v. Black, 362 Md. 574, 766 A.2d 119 (2001) (conviction for possession of
cocaine); Attorney Grievance Comm’n v. Childress, 360 Md. 373, 758 A.2d
117 (2000) (pursuing a child on the Internet); Attorney Grievance Comm’n v.
Dechowitz, 358 Md. 184, 747 A.2d 657 (2000) (conviction for possession with
intent to distribute marijuana); Attorney Grievance Comm’n v. Atkinson, 357 Md. 646, 745 A.2d
1086 (2000) (failure to file taxes); Attorney Grievance Comm’n v. Bereano, 357 Md. 321, 744 A.2d
35 (2000) (mail fraud conviction); Attorney Grievance Comm’n v. Painter, 356 Md. 293, 739 A.2d
24 (1999) (convictions for battery and transporting a handgun in a domestic
violence context); Attorney Grievance Comm’n v. Gilbert, 356 Md. 249, 739 A.2d 1
(1999) (conviction for possession of crack cocaine); Attorney Grievance
Comm’n v. White, 354 Md. 346, 731 A.2d 447 (1999) (perjury); Attorney Grievance
Comm’n v. Gavin, 350 Md. 176, 711 A.2d 193 (1998) (failure to file timely tax
returns and to pay timely income taxes); Attorney Grievance Comm’n v. Post, 350 Md. 85, 710 A.2d
935 (1998) (failure to file taxes); Attorney Grievance Comm’n v. Garland, 345 Md. 383, 692 A.2d
465 (1997) (conviction for driving under the influence of alcohol); Attorney
Grievance Comm’n v. Breschi, 340 Md. 590, 667 A.2d 659 (1995) (failure to
file taxes); Attorney Grievance Comm’n v. Casalino, 335 Md. 446, 644 A.2d
43 (1994) (conviction for tax evasion); Attorney Grievance Comm’n v. Boyd, 333 Md. 298, 635 A.2d
382 (1994) (material misrepresentation respecting trust account to another
attorney with intent to deceive); Attorney Grievance Comm’n v. James, 333 Md. 174, 634 A.2d
48 (1993) (forgery); Attorney Grievance Comm’n v. White, 328 Md. 412, 614 A.2d
955 (1992) (misappropriation of client funds). The following cases found a violation of 8.4(d)
based on conduct that concerned the attorney’s own legal practice or the
attorney’s relationship with his or her clients: Attorney Grievance Comm’n
v. Gallagher, 371 Md. 673, 810 A.2d 996 (2002) (misappropriation of client
funds); Attorney Grievance Comm’n v. Harris, 371 Md. 510, 810 A.2d
457 (2002) (failure to adequately represent a client); Attorney Grievance
Comm’n v. Barneys, 370 Md. 566, 805 A.2d 1040 (2002) (unauthorized practice of law);
Attorney Grievance Comm’n v. Santos, 370 Md. 77, 803 A.2d 505 (2002) (commingling
client funds into operating account); Attorney Grievance Comm’n v. Sullivan, 369 Md. 650, 801 A.2d
1077 (2002) (failure to administer estate promptly, dishonest and unlawful
taking of client funds, and lack of communication with successor personal
representatives); Attorney Grievance Comm’n v. Powell, 369 Md. 462, 800 A.2d
782 (2002) (misuse of attorney trust account); Attorney Grievance Comm’n v.
McCoy,
369 Md. 226, 798 A.2d 1132 (2002) (commingling of client funds); Attorney Grievance Comm’n v. Garfield, 369 Md. 85, 797 A.2d
757 (2002) (representation of clients impaired by drug addiction); Attorney
Grievance Comm’n v. Dunietz, 368 Md. 419, 795 A.2d 706 (2002) (neglect of
client matters); Attorney Grievance Comm’n v. Wallace, 368 Md. 277, 793 A.2d
535 (2002) (neglect of client matters); Attorney Grievance Comm’n v. Snyder, 368 Md. 242, 793 A.2d
515 (2002) (misuse of trust account); Attorney Grievance Comm’n v. Lane, 367 Md. 633, 790 A.2d
621 (2002) (failure to act diligently on client’s behalf); Attorney
Grievance Comm’n v. Harrington, 367 Md. 36, 785 A.2d 1260 (2001) (flagrant
failure to respond to inquiries from Bar Counsel); Attorney Grievance Comm’n
v. Harris, 366 Md. 376, 784 A.2d 516 (2001) (incompetent representation of
clients); Attorney Grievance Comm’n v. Johnson, 363 Md. 598, 770 A.2d
130 (2001) (making false statements to tribunal, acting against interests of
clients); Attorney Grievance Comm’n v. Bernstein, 363 Md. 208, 768 A.2d
607 (2001) (willful invasion of client funds); Attorney Grievance Comm’n v.
Shaw,
363 Md. 1, 766 A.2d 1028 (2001) (misconduct involving charges for attorney
fees); Attorney Grievance Comm’n v. Zdravkovich, 362 Md. 1, 762 A.2d 950
(2000) (failure to represent a client in an adequate manner); Attorney
Grievance Comm’n v. Koven, 361 Md. 337, 761 A.2d 881 (2000) (incompetent
representation of clients, not refunding unearned fees, accepting payment for
work not performed); Attorney Grievance Comm’n v. Bridges, 360 Md. 489, 759 A.2d
233 (2000) (repeatedly refusal to provide information requested by Inquiry
Panel regarding attorney’s involvement with employee); Attorney Grievance
Comm’n v. Mooney, 359 Md. 56, 753 A.2d 17 (2000) (inadequate representation of
client); Attorney Grievance Comm’n v. Harper, 356 Md. 53, 737 A.2d
557 (1999) (unauthorized practice of law); Attorney Grievance Comm’n v.
Brugh,
353 Md. 475, 727 A.2d 913 (1999) (neglect in client matters, inadequate
representation of clients); Attorney Grievance Comm’n v. Brown, 353 Md. 271, 725 A.2d
1069 (1999) (failure to respond to Attorney Grievance Commission’s inquiries
about a client matter); Attorney Grievance Comm’n v. Brennan, 350 Md. 489, 714 A.2d
157 (1998) (attorney had working relationship with a suspended attorney and
mishandled client matters); Attorney Grievance Comm’n v. Richardson, 350 Md. 354, 712 A.2d
525 (1998) (filing frivolous and malicious lawsuit against judges who had ruled
against him in previous actions); Attorney Grievance Comm’n v. McCoy, 349 Md. 420, 708 A.2d
681 (1998) (inadequate representation of client); Attorney Grievance Comm’n
v. Milliken, 348 Md. 486, 704 A.2d 1225 (1998) (gross neglect of client cases,
commingling of funds); Attorney Grievance Comm’n v. Hollis, 347 Md. 547, 702 A.2d
223 (1997) (misappropriation of client funds); Attorney Grievance Comm’n v.
Kent,
337 Md. 361, 653 A.2d 909 (1995) (simultaneous representation of two
co-defendants); Attorney Grievance Comm’n v. Eisenstein, 333 Md. 464, 635 A.2d
1327 (1994) (attorney’s handling of his claimant’s money involved dishonesty); Attorney
Grievance Comm’n v. Goldsborough, 330 Md. 342, 624 A.2d 503 (1993) (nonconsensual
kissing and spanking of clients and employees). “Many kinds of illegal conduct reflect
adversely on fitness to practice law…. Although a lawyer is personally
answerable to the entire criminal law, a lawyer should be professionally
answerable only for offenses that indicate lack of those characteristics relevant
to law practice. Offenses involving violence, dishonesty, breach of trust, or
serious interference with the administration of justice are in that
category.” As noted in the majority opinion, the hearing
judge’s conclusions on this point were based on his assessment that
respondent’s conduct was criminal in nature, fitting within the first prong of
cases mentioned above. In finding a violation of Rule 8.4(d), the hearing judge
determined that “[t]he Respondent indisputably hindered the administration
of justice by providing a means for his son to flee the country.” Findings
of Fact and Conclusions of Law at 14. Thus, his conclusion as to Rule 8.4(d)
relied on his earlier pronouncements that all the elements of the offense of
hindering a police officer were present in this case. In addition, Bar Counsel’s Petition for
Disciplinary Action bases both of the misconduct charges on the allegation that
respondent’s “actions in assisting his son to leave the State of Maryland,
and subsequently the country, was in direct impedance and obstruction of the
investigation of the murder of Alfred Enrique Tello, Jr. in violation of
Maryland law and the Rules of Professional Conduct governing the actions [**1014] of attorneys.” [*280] Petition for
Disciplinary Action at 11. Thus, the 8.4(d) charge in the Petition was
dependent upon a finding that the conduct being alleged was criminal. No
language appears in the Petition alleging that the respondent’s conduct was
prejudicial to the administration of justice for any reason other than its
alleged criminal nature. Consequently, in the instant case, as in the vast
majority of 8.4(d) cases, the 8.4(d) charge is dependent upon the presence of
another form of misconduct, rather than having an independent basis. The majority, however, claims that the
respondent’s acts violate Rule 8.4(d) on two separate grounds: first, under the
theory that his acts were criminal and, second, under an alternative theory
that his acts were “directly harmful to the legal profession.” I
disagree. I doubt, under In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d
117 (1968), that it is proper for the majority to conjure up, sua sponte, alternative grounds to
support a violation of Rule 8.4(d). Furthermore, as mentioned earlier, I do not
believe the respondent’s actions constituted the offense of obstruction or
hindering. Finally, because the actions taken by the respondent did not impact
on his clients or on his law practice, I do not believe that his conduct was
prejudicial to the administration of justice. A. At
the threshold, the majority’s opinion as to the 8.4(d) charge is questionable
under In re Ruffalo, supra. In Ruffalo, the petitioner was a
trial lawyer who was charged with twelve counts of misconduct. As a result of
incriminating testimonial evidence adduced during his hearing before a hearing
board, the state’s grievance commission added a thirteenth charge against the
petitioner. The hearing board found the petitioner guilty of seven charges,
including the appended thirteenth charge. On review, the Ohio Supreme Court
held that the evidence was sufficient to sustain only two charges, including
the thirteenth charge, and ultimately concluded that disbarment was required.
Proceedings thereafter ensued to disbar petitioner in the United States Court
of Appeals for the Sixth Circuit. The Sixth Circuit, relying [*281] solely on the record
and findings of the Ohio courts, held that the thirteenth charge alone justified disbarment in
its court. The United States Supreme Court, concluding that the petitioner was
deprived of procedural due process, reversed, stating: “Disbarment … is
a punishment or penalty imposed on the lawyer. * * * He is accordingly entitled
to procedural due process, which includes fair notice of the charge.” Ruffalo, 390 U.S. at 550, 88
S.Ct. at 1226, 20 L.Ed.2d at 122. As Ruffalo holds, principles of due process require
that fair notice of the charges be given to a defendant at the outset of
disciplinary proceedings. Here, the majority states that, even if the conduct in
question is not criminal, it is still prejudicial to the administration of
justice in violation of Rule 8.4(d). According to the majority,
“respondent’s actions are so appalling that either shoe will fit;
respondent’s acts are both criminal in nature and directly harmful to the legal
profession.” To the extent that the majority opinion relies upon a basis
for finding an 8.4(d) violation which was neither alleged in the Petition for
Disciplinary Action nor relied upon by the hearing judge, it presents a procedural
due process infirmity in contravention to the holding in Ruffalo. In this case, the
respondent was never given notice of such a basis for the 8.4(d) charge nor an
opportunity to defend against an 8.4(d) violation based on his acts being [**1015] “directly harmful
to the legal profession.” As the Court in Ruffalo stated, disbarment
proceedings are “adversary proceedings of a quasi-criminal nature. * * *
The charge must be known before the proceedings commence.” 390 U.S. at
551, 88 S.Ct. at 1226, 20 L.Ed.2d at 122. It seems clear that, when a court
devises a new basis for a charge at the eleventh hour of a quasi-criminal
proceeding, as the majority has done here, the respondent has been deprived of
procedural due process. As noted by the majority, the respondent has
been charged in a Statement of Charges in State of Maryland v. Sol Sheinbein, District Court of
Maryland, Montgomery County, Case No. 6D00071133, with the criminal offense of
hindering a police officer. An arrest warrant on that charging document has
been issued in that case for Sol Sheinbein, District Court [*282] of Maryland, Warrant
No. D98442735. Respondent, as a member of the Bar of this State, is an officer
of this Court. It may be that the respondent’s conduct, in failing to present
himself for trial and perhaps willful avoidance of prosecution on this Maryland
criminal charge, would constitute a violation of Rule 8.4(d) as conduct
prejudicial to the administration of justice. See Iowa Supreme Ct. Bd. of
Prof'l Ethics & Conduct v. Mulford, 625 N.W.2d 672 (Iowa 2001) (sanctioning an
attorney as a member of the Iowa bar for willful avoidance of prosecution by
failing to return to the United States to resolve charges alleged in a federal
indictment). Because this theory was never alleged as a basis for the
professional misconduct charge before this Court, due process, as held in Ruffalo, precludes this Court
from considering it now. B. In
support for its argument that Rule 8.4(d) has been violated, the majority cites
an Alaskan case in which an attorney was disbarred after having been convicted
of certain criminal offenses. The majority then remarks that in our case, the
respondent cannot be tried for obstruction or hindering because he remains in
Israel. The majority’s reliance on the Alaskan case assumes that the respondent
would be convicted. Since the evidence was insufficient to find that the
respondent committed the offense of obstruction or hindering by clear and
convincing evidence, the case relied on by the majority furnishes no support
for a finding of an 8.4(d) violation. Next, the majority claims that it “has not
always been the case” that conduct violating Rule 8.4(d) must relate to
the lawyer’s particular practice or clients, quoting the following statement in
Attorney Grievance Comm’n v. Richardson, 350 Md. 354, 368, 712 A.2d 525, 532
(1998): “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 proceeding of which he is a
party or represents a party. This Court [*283] 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 engenders disrespect for the courts and for the legal profession may be
prejudicial to the administration of justice.” The majority capitalizes on this comment to
broaden the scope of Rule 8.4(d) beyond any perceptible bounds. In Attorney Grievance Comm’n v. Alison, 317 Md. 523, 565 A.2d
660 (1989), relied on in Richardson and by the majority here, we dealt with a
lawyer who hurled epithets during judicial proceedings and [**1016] whose “irrational
dangerous conduct persisted over a period of two years.” 317 Md. at 532,
565 A.2d at 664. There was no question that Mr. Alison’s resistance to a court
ordered search, foul language in court, and verbal abuse of court clerks, among
other things, “impact[ed] on the image or perception of the courts or the
legal profession.” Richardson, supra, 350 Md. at 368, 712 A.2d at 532. Mr.
Alison’s conduct toward the court and court personnel obviously impacted on his
legal practice and on his clients. Furthermore, it was oftentimes criminal.
[FN13] Thus, this Court had no difficulty in holding that the conduct he
publicly displayed bred disrespect for the courts and for the legal profession. FN13. The conduct with which this Court was
concerned with in Alison had its roots in marital discord. As a result of his
conduct, Mr. Alison was convicted of driving while intoxicated, harassment,
hindering a police officer, and misuse of subpoena. Here, in the majority’s view, the respondent
“usurped the role of twelve Maryland citizens” and supplanted it with
his paternal instincts. Additionally, the majority claims that the respondent
made it “impossible for the justice system to work,” and “did
everything in his power to ensure that his son circumvent that system.” As
a result, the majority concludes, “[i]t is difficult to see, as respondent
suggests, how respondent’s blatant interference with an ongoing police
investigation [*284] 'would not seriously impair public confidence
in the entire legal profession' and not, as a result, impair public confidence
in the integrity of the courts.” The majority completely ignores the fact
that, in September 1999, the Tel Aviv District Court convicted the respondent’s
son of murder. As stated earlier, under the Act of State Doctrine, this Court must
respect this conviction and may not question its validity. Ultimately, we
should acknowledge the fact that justice, under the applicable law, has been
served in the underlying case against the respondent’s son. This case simply does not present facts, as the
majority argues, “so appalling” as to constitute conduct prejudicial
to the administration of justice in violation of MRPC 8.4(d). In the interest
of giving members of the legal profession notice of what behavior in their
personal lives will subject them to disciplinary action, I am unwilling to
expand Rule 8.4(d) to include conduct as ambiguous as the respondent’s in this
case. Therefore, Bar Counsel has not presented facts, by clear and convincing
evidence, demonstrating a violation of MRPC 8.4(d). In conclusion, I believe that Bar Counsel’s
evidence was insufficient to support a finding of misconduct under either MRPC
8.4(b) or (d). Judge RAKER agrees with the views expressed
herein and joins this dissenting opinion. |