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Attorney Grievance Commission V. Winters: Disbarment Warranted Where Attorney's Criminal Activity Is Not Substantially Related to His Drug Addiction Jonathan Beiser

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Attorney Grievance Commission V. Winters: Disbarment Warranted Where Attorney's Criminal Activity Is Not Substantially Related to His Drug Addiction Jonathan Beiser 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.
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