University of Baltimore Law Forum Volume 18 Article 12 Number 3 Spring, 1988
1988 Recent Developments: Attorney Grievance Commission v. Winters: Disbarment Warranted Where Attorney's Criminal Activity Is Not Substantially Related to His Drug Addiction Jonathan Beiser
Follow this and additional works at: http://scholarworks.law.ubalt.edu/lf Part of the Law Commons
Recommended Citation Beiser, Jonathan (1988) "Recent Developments: Attorney Grievance Commission v. Winters: Disbarment Warranted Where Attorney's Criminal Activity Is Not Substantially Related to His Drug Addiction," University of Baltimore Law Forum: Vol. 18 : No. 3 , Article 12. Available at: http://scholarworks.law.ubalt.edu/lf/vol18/iss3/12
This Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in University of Baltimore Law Forum by an authorized editor of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. day). In looking to the statutory language In 1983, Winters was charged and found plinary sanction, even where an attorney's of the Act coupled with a legislative guilty, in the Circuit Court for Anne conduct would otherwise warrant disbar history fraught with expansive modifica Arundel County, of conspiracy to violate ment as a matter of course." Id. (citing At· tions, the court concluded that the legisla Maryland income tax laws and of tamey Grievance Commission v. Haupt, ture could not have intended such a unlawfully and wilfully filing fraudulent 306 Md. 612, 614-16, 510 A.2d 590, 591-92 narrow reading of the Act. income tax returns for 1979 and 1980. (1986); Attorney Grievance Commission v. Consistent with the legislative history, Also, he was charged and found guilty, in Willemain, 305 Md. 665, 679-80, 506 A.2d the court in Keane, has expanded the pa federal court for the possession and distri 245, 252-53 (1986». The court stated fur rameters of the Maryland Wrongful Death bution of cocaine. ther, however, that "we have imposed Act to include yet another category of per Based on these convictions, Maryland's sanctions short of disbarment only when sons for whose death, recovery may be Attorney Grievance Commission, filed a the mental impairment or addiction is 'to allowed. The court now permits an award petition for disciplinary action against a substantial degree' responsible for the at of solatium damages for the loss of an un Winters. The petition alleged violation of torney's improper conduct." Winters at married, non-minor child as long as that the Code of Professional Responsibility 663, 526 A.2d at 57. child has not reached his twenty-second Disciplinary Rules 1-102(A). In particular, When comparing the instant case to ones birthday. Although the impact of this de the petition alleged: 1) violating a Discipli involving attorneys with alcohol addic cision is somewhat limited, it espouses the nary Rule; 2) engaging in illegal conduct tions, the court restated what they had pre court's policy to continually modify the involving moral turpitude; 3) engaging in viously said in Attorney Grievance provisions of the Act so that a broad reme conduct involving dishonesty, fraud, de Commission v. Willemain, 297 Md. 386, dial purpose may be achieved. ceit or misrepresentation; 4) engaging in 395, 466 A.2d 1271, 1275 (1983): conduct that is prejudicial to the adminis -Natasha Sethi tration of justice; and 5) engaging in any We have looked at the shortcomings of other conduct that adversely reflects on his attorneys in a somewhat different light Attorney Grievance Commission v. fitness to practice law. Id. Pursuant to Rule where we have concluded that the acts Winters: DISBARMENT WARRANT BV9b, the matter was referred to the Cir giving rise to the charges against an at ED WHERE ATTORNEY'S cuit Court for Montgomery County for an torney have resulted to a substantial CRIMINAL ACTIVITY IS NOT evidentiary hearing, at which time Winters extent from the physical and mental SUBSTANTIALLY RELATED TO HIS was suspended from the practice of law in maladies the attorney was suffering, DRUG ADDICTION Maryland. That court then filed compre particularly where alcoholism was in hensive findings of fact and conclusions of volved. An impaired mental condition or addic law with the Court of Appeals of tion to alcohol or drugs may be a Maryland. The court of appeals concluded Id. at 664, 526 A.2d at 58. mitigating factor in imposing a discre that disbarment was the appropriate sanc In the evidentiary hearing, moreover, tionary sanction, even where an attorney's tion in this case. the court of appeals stated that "Mr. conduct would otherwise warrant disbar To begin its analysis, the court of appeals Winters has convinced the court that nei ment. In Attorney Griwance Commission noted that Winters' "serious criminal con ther his clients nor his practice ever suf v. Winters, 309 Md. 658, 526 A.2d 55 duct would normally call for disbarment." fered any adverse consequences as a result (1987), however, the Court of Appeals of Id. at 662,526 A.2d at 57 (citing Attorney of his criminal activity." Id. The court fur Maryland held that an attorney's state con Grievance Commission v. Osburn, 304 Md. ther stated that "the Court cannot under victions for filing fraudulent state income 179,498 A.2d 276 (1985». In Osburn, this stand how it can logically find that Mr. tax returns, conspiring to violate income court held that convictions for filing fraud Winters did properly and competently tax laws, and possessing and distributing ulent state income tax returns and for con function as an attorney, while addicted to cocaine, warranted disbarment where the spiracy to violate income tax laws cocaine, and at the same time find that his attorney's criminal activity was not warranted disbarment. Moreover, the addiction and personality disorder caused substantially the result of his drug addic Standards for Imposing Lawyer Sanctions his criminal activity." Id. at 664-5, 526 tion or mental disorder. Rule under 5.11, adopted by the American A.2d at 58. In 1975, Richard M. Winters was ad Bar Association in February of 1986 stated The court further opined that, mittd to the Maryland Bar. In 1978, while that disbarment is generally appropriate his trial practice was substantially expand when "a lawyer engages ... in the sale, dis this is not a case where the Respondent ing, Mr. Winters experimented with co tribution or importation of controlled suffered a substantial lack of capacity caine. He determined that cocaine substances." Winters, at 662, 526 A.2d at such that he lost control over every as enhanced his ability to work harder and 57. Winters argued, however, that pect of his life. The Respondent in longer. Several months later, Winters ac "compelling extenuating circumstances" stead asserts that he "selectively" lost knowledged his drug addiction, when he existed for imposing a sanction less severe control over particular portions of his "changed his practice of using a standard than disbarment. Id. at 663,526 A.2d at 57. life and the drug addiction is used by dosage and consumed whatever amount of He asserted that his impaired mental con Respondent as an attempt to explain cocaine he had available." Id. at 660, 526 dition, caused by cocaine addiction and a away those matters which have led to A.2d at 56. "Narcissistic Personality Disorder" was severe personal consequences, to wit: Winters continued to practice law and in resposible to a "substantial degree" for the multiple criminal convictions. It is the cases where his clients paid him cash for conduct which caused his convictions. Id. finding of this Court that the Respon his legal services, he intentionally failed to Although rejecting Winter's argument, dent was fully able to function in his report this as income on his taxes. Winters the court of appeals first recognized that law practice, in other aspects of his used this unreported income to purchase "cases indicate that impaired mental condi personal life and to stop using cocaine additional cocaine, which he began to con tion or addiction to alcohol or drugs may when he decided to do so. Hence, his sume openly. Id. be a mitigating factor in imposing a disci- drug addictions and per------1&3ITheLawForum-33 sonality disorder were not responsible Newkirk 'V. Newkirk: IN CHILD'S Initially, it must be noted that when an for his criminal activity. BEST INTEREST, SIBLING appellate court reviews the factual AWARDED CUSTODY OF MINOR findings of a chancellor in a child cus Id. CHILDREN OVER PARENT'S tody case, it may not substitute its On appeal, Winters raised exceptions to PROTEST judgment for that of the chancellor on the lower court's findings. The court of ap In Newkirk v. Newkirk, 73 Md. App. findings of fact. It may only review peals responded that "the lower court's 588,535 A.2d 947 (1988), the Court of Spe whether those factual findings are factual findings are prima facie correct and cial Appeals of Maryland recently upheld clearly erroneous in light of the total will not be disturbed on review unless a chancellor's finding that the exceptional evidence. clearly erroneous." at 665, 526 A.2d at Id. circumstances of a custody action warrant 58 (citing A ttorney Grievance Commission Newkirk, at 591, 535 A.2d at 948, (citing ed that guardianship be awarded to the v. Miller, 301 Md. 592, 602, 483 A.2d 1281, Colburn v. Colburn, 15 Md. App. 503, 292 half-brother of two minor children rather 1287 (1984)). Upon review, the court of ap A.2d 121 (1972)). If the chancellor has than to their surviving natural parent. peals found no merit to Winters' excep erred as to matters of law, further proceed Richard A. and Patricia C. Newkirk tions and, agreeing with the lower court's ings may be required, however, his findings, concluded that his criminal activ were married in 1969. Patricia had two decision may only be disturbed if there has ity was not, "to a substantial degree," a children from a previous marriage, been a clear abuse of discretion. Id. result of his drug addiction or mental dis Michael and Derek, whom Richard In settling child custody disputes, partic order. Winters thereby was disbarred. adopted shortly after their wedding. The ularly between a biological parent and a. The Court of Appeals of Maryland clear Newkirks had two children of their own, third party, the chancellor must determine ly has indicated that when an attorney's James and Meghan, ages 16 and 13 respec what he perceives to be in the best interest criminal activity is not substantially the tively, at the time of the custody dispute. of the child. He must evaluate the capacity result of his drug addiction or mental dis In 1977, the Newkirks were divorced and of the custodial litigants to care for the order, disbarment is the appropriate disci Patricia was awarded custody of and sup child, the environments they offer, as well plinary sanction. port for the minor children, James and as the personal character of the child. Id., Meghan. at 593, 535 A.2d at 949. Although the -Jonathan Beiser On September 23, 1985, Patricia "best interest" standard prevails in Newkirk died of cancer. In her Last Will Maryland, there is a prima facie presump and Testament, she requested that Derek, tion that the best place for a child is with the Appellee, act as guardian of James and its natural parents rather than in the cus Meghan in the event of her death. On the tody of a third party. "This presumption day of Patricia Newkirk's death, Richard is overcome, however, if the parent is unfit to have custody or if exceptional cir Your Newkirk, the Appellant, informed James cumstances exist which would make such and Meghan that he was coming to pick custody detrimental to the best interests of WILL them up. Upon his arrival, however, he the child." Id. (See Md. Fam. Law Code found that Derek, age 29, had removed the Ann. sec. 5-201 (1984); Ross v. Hoffman, isaWAY children from the family home. Richard 280 Md. 172, 178-9, 372 A.2d 582, 587 Newkirk then instituted custody proceed (1977)). to vanquish ings. Chancellor Levin found that exceptional Initially, the master recommended that circumstances existed which merited the Richard Newkirk be awarded custody of granting of guardianship to the Appellee, EMPHYSEMA the children. Derek, however, filed excep Derek Newkirk. Evaluations presented to tions and asked for child support pay the chancellor from the Mental Hygiene and ASTHMA ments which Mr. Newkirk had been Consultation Service, the Department of making but had subsequently terminated Social Services, and the Juvenile Services One sentence inserted by when Mrs. Newkirk died. At a hearing your attorney- Administration all recommended that before the Circuit Court for Prince "I give and bequeath to the J ames and Meghan remain in the custody American Lung Associa George's County, Judge Levin, the Chan of Derek, their older half-brother. The tion of Maryland the sum cellor, sustained the Appellee's exceptions reports noted that an excellent relationship of dollars to be and awarded custody to Derek, the existed between Derek and the children used for Its general children's half-brother. The court also or and that Derek had taken over the parental purposes." dered Richard Newkirk to pay retroactive role. Placing the children with their father -can help prevent and care for lung diseases that cripple and child support payments from the time of would surely disrupt their lives. Further kill adults and children. Mrs. Newkirk's death ($4,100) and to con more, one of the evaluations revealed that tinue child support payments of $100 per the relationship between Richard week. Newkirk and his two adopted sons was a AMERICAN On appeal, Mr. Newkirk contended that distant one. Richard Newkirk blamed this LUNG the chancellor abused his discretion in on his inability to relate to children as a • ASSOCIATION t 0/ Marylalld. Illc. awarding custody to a sibling. of the minor father. 1501 York Iload. LUllu:rvm •• MD 2109~ children rather than to their surviving In addition to these reports, Chancellor natural father. Levin also interviewed the children. When In rejecting this contention, the Court of he spoke with them in his chambers, both Special Appeals of Maryland first address children expressed that although they lov ed the appellate procedure in reviewing ed their father, they wished to remain with child custody disputes. Derek. 34-The Law Forum/IB.3 ------