Attorney Grievance v. Mixter , 441 Md. 416 ( 2015 )

Attorney Grievance Commission of Maryland v. Mark T. Mixter, Misc. Docket AG No. 7,
Sept. Term 2013, Opinion by Battaglia, J.
ATTORNEY DISCIPLINE – SANCTIONS – DISBARMENT
Disbarment is the appropriate sanction when an attorney makes copious knowing and
intentional representations to courts, parties and witnesses. Such intentional
misrepresentation demonstrates a lack of truthfulness and honesty which is prejudicial to
the administration of justice and brings disrepute to the legal profession. MLRPC 3.1, 3.2,
3.3(a)(1) and (a)(4), 3.4(a), (c) and (d), 4.1(a)(1), 4.4(a) and 8.4(a), (c) and (d).
1
Circuit Court for Baltimore City, Maryland
Case No. 24-C-13-001939
Argued: November 6, 2014
IN THE COURT OF APPEALS
OF MARYLAND
Misc. Docket AG No. 7
September Term, 2013
ATTORNEY GRIEVANCE
COMMISSION OF MARYLAND
v.
MARK T. MIXTER
Barbera, C.J.
Harrell
Battaglia
Greene
Adkins
McDonald,
JJ.
Opinion by Battaglia, J.
Harrell, J., joins in judgment only.
Filed: February 2, 2015
2
Table of Contents
I. Introduction ................................................................................................................ 1
II. Judge Doory’s Findings of Fact ............................................................................... 26
III. Judge Doory’s Conclusions of Law ......................................................................... 52
IV. Discussion .................................................................................................................. 57
A. Mixter’s Exceptions to Judge Doory’s Findings of Fact .................................... 58
B. Mixter’s Exceptions to Judge Doory’s Conclusions of Law .............................. 95
C. Sanction ................................................................................................................. 115
V. Appendices .............................................................................................................. 131
1
I. Introduction
Mark T. Mixter, Respondent, was admitted to the Bar of this Court on November
20, 1980. On March 26, 2013, the Attorney Grievance Commission, (“Petitioner” or “Bar
Counsel”), acting pursuant to Maryland Rule 16-751(a),1 filed a “Petition For Disciplinary
or Remedial Action” against Respondent, alleging that Mixter engaged in a “pattern and
practice that is outside the bounds of zealous representation, in direct defiance of the
Discovery Guidelines of the State Bar, contrary to the Rules of Civil Procedure and in
violation of the Maryland Lawyers’ Rules of Professional Conduct.” Violations were
alleged of the following Maryland Lawyers’ Rules of Professional Conduct (“Rule”): 3.1
(Meritorious Claims and Contentions),2 3.2 (Expediting litigation),3 3.3 (Candor Toward
1
Maryland Rule 16-751(a) provides, in relevant part:
(a) Commencement of disciplinary or remedial action. (1) Upon approval
or direction of Commission. Upon approval or direction of the Commission,
Bar Counsel shall file a Petition for Disciplinary or Remedial Action in the
Court of Appeals.
2
Rule 3.1 provides:
A lawyer shall not bring or defend a proceeding, or assert or controvert an
issue therein, unless there is a basis for doing so that is not frivolous, which
includes, for example, a good faith argument for an extension, modification
or reversal of existing law. A lawyer may nevertheless so defend the
proceeding as to require that every element of the moving party’s case be
established.
3
Rule 3.2 provides:
A lawyer shall make reasonable efforts to expedite litigation consistent with
the interests of the client.
1
the Tribunal),4 3.4 (Fairness to Opposing Party and Counsel),5
4
Rule 3.3 provides:
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false
statement of material fact or law previously made to the tribunal by the
lawyer;
(2) fail to disclose a material fact to a tribunal when disclosure is necessary
to avoid assisting a criminal or fraudulent act by the client;
(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction
known to the lawyer to be directly adverse to the position of the client and
not disclosed by opposing counsel; or
(4) offer evidence that the lawyer knows to be false. If a lawyer has offered
material evidence and comes to know of its falsity, the lawyer shall take
reasonable remedial measures.
(b) The duties stated in paragraph (a) continue to the conclusion of the
proceeding, and apply even if compliance requires disclosure of information
otherwise protected by Rule 1.6.
(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes
is false.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material
facts known to the lawyer which will enable the tribunal to make an informed
decision, whether or not the facts are adverse.
(e) Notwithstanding paragraphs (a) through (d), a lawyer for an accused in a
criminal case need not disclose that the accused intends to testify falsely or
has testified falsely if the lawyer reasonably believes that the disclosure
would jeopardize any constitutional right of the accused.
5
Rule 3.4 provides:
A lawyer shall not:
(a) unlawfully obstruct another party's access to evidence or unlawfully alter,
destroy or conceal a document or other material having potential evidentiary
value. A lawyer shall not counsel or assist another person to do any such act;
(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an
inducement to a witness that is prohibited by law;
(c) knowingly disobey an obligation under the rules of a tribunal except for
an open refusal based on an assertion that no valid obligation exists;
(d) in pretrial procedure, make a frivolous discovery request or fail to make
reasonably diligent effort to comply with a legally proper discovery request
by an opposing party;
(continued . . . )
2
4.1 (Truthfulness in Statements to Others),6 4.4 (Respect for Rights of Third Persons),7
( . . . continued)
(e) in trial, allude to any matter that the lawyer does not reasonably believe
is relevant or that will not be supported by admissible evidence, assert
personal knowledge of facts in issue except when testifying as a witness, or
state a personal opinion as to the justness of a cause, the credibility of a
witness, the culpability of a civil litigant or the guilt or innocence of an
accused; or
(f) request a person other than a client to refrain from voluntarily giving
relevant information to another party unless: (1) the person is a relative or an
employee or other agent of a client; and (2) the lawyer reasonably believes
that the person's interests will not be adversely affected by refraining from
giving such information.
6
Rule 4.1 provides:
(a) In the course of representing a client a lawyer shall not knowingly: (1)
make a false statement of material fact or law to a third person; or (2) fail to
disclose a material fact when disclosure is necessary to avoid assisting a
criminal or fraudulent act by a client.
(b) The duties stated in this Rule apply even if compliance requires disclosure
of information otherwise protected by Rule 1.6.
7
Rule 4.4 provides:
(a) In representing a client, a lawyer shall not use means that have no
substantial purpose other than to embarrass, delay, or burden a third person,
or use methods of obtaining evidence that the lawyer knows violate the legal
rights of such a person.
(b) In communicating with third persons, a lawyer representing a client in a
matter shall not seek information relating to the matter that the lawyer knows
or reasonably should know is protected from disclosure by statute or by an
established evidentiary privilege, unless the protection has been waived. The
lawyer who receives information that is protected from disclosure shall (1)
terminate the communication immediately and (2) give notice of the
disclosure to any tribunal in which the matter is pending and to the person
entitled to enforce the protection against disclosure.
3
5.3 (Responsibilities Regarding Nonlawyer Assistants),8
8
Rule 5.3 provides:
With respect to a nonlawyer employed or retained by or associated with a
lawyer:
(a) a partner, and a lawyer who individually or together with other lawyers
possesses comparable managerial authority in a law firm shall make
reasonable efforts to ensure that the firm has in effect measures giving
reasonable assurance that the person’s conduct is compatible with the
professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall
make reasonable efforts to ensure that the person’s conduct is compatible
with the professional obligations of the lawyer;
(c) a lawyer shall be responsible for conduct of such a person that would be
a violation of the Maryland Lawyers' Rules of Professional Conduct if
engaged in by a lawyer if: (1) the lawyer orders or, with the knowledge of
the specific conduct, ratifies the conduct involved; or (2) the lawyer is a
partner or has comparable managerial authority in the law firm in which the
person is employed, or has direct supervisory authority over the person, and
knows of the conduct at a time when its consequences can be avoided or
mitigated but fails to take reasonable remedial action; and
(d) a lawyer who employs or retains the services of a nonlawyer who (i) was
formerly admitted to the practice of law in any jurisdiction and (ii) has been
and remains disbarred, suspended, or placed on inactive status because of
incapacity shall comply with the following requirements:
(1) all law-related activities of the formerly admitted lawyer shall be (A)
performed from an office that is staffed on a full-time basis by a supervising
lawyer and (B) conducted under the direct supervision of the supervising
lawyer, who shall be responsible for ensuring that the formerly admitted
lawyer complies with the requirements of this Rule.
(2) the lawyer shall take reasonable steps to ensure that the formerly admitted
lawyer does not:
(A) represent himself or herself to be a lawyer;
(B) render legal consultation or advice to a client or prospective client;
(C) appear on behalf of or represent a client in any judicial, administrative,
legislative, or alternative dispute resolution proceeding;
(D) appear on behalf of or represent a client at a deposition or in any other
discovery matter;
(E) negotiate or transact any matter on behalf of a client with third parties;
(continued . . . )
4
8.1 (Bar Admission and Disciplinary Matters)9 and
( . . . continued)
(F) receive funds from or on behalf of a client or disperse funds to or on
behalf of a client; or
(G) perform any law-related activity for (i) a law firm or lawyer with whom
the formerly admitted lawyer was associated when the acts that resulted in
the disbarment or suspension occurred or (ii) any client who was previously
represented by the formerly admitted lawyer.
(3) the lawyer, the supervising lawyer, and the formerly admitted lawyer
shall file jointly with Bar Counsel (A) a notice of employment identifying
the supervising lawyer and the formerly admitted lawyer and listing each
jurisdiction in which the formerly admitted lawyer has been disbarred,
suspended, or placed on inactive status because of incapacity; and (B) a copy
of an executed written agreement between the lawyer, the supervising
lawyer, and the formerly admitted lawyer that sets forth the duties of the
formerly admitted lawyer and includes an undertaking to comply with
requests by Bar Counsel for proof of compliance with the terms of the
agreement and this Rule. As to a formerly admitted lawyer employed as of
July 1, 2006, the notice and agreement shall be filed no later than September
1, 2006. As to a formerly admitted lawyer hired after July 1, 2006, the notice
and agreement shall be filed within 30 days after commencement of the
employment. Immediately upon the termination of the employment of the
formerly admitted lawyer, the lawyer and the supervising lawyer shall file
with Bar Counsel a notice of the termination.
9
Rule 8.1 provides:
An applicant for admission or reinstatement to the bar, or a lawyer in
connection with a bar admission application or in connection with a
disciplinary matter, shall not:
(a) knowingly make a false statement of material fact; or
(b) fail to disclose a fact necessary to correct a misapprehension known by
the person to have arisen in the matter, or knowingly fail to respond to a
lawful demand for information from an admissions or disciplinary authority,
except that this Rule does not require disclosure of information otherwise
protected by Rule 1.6.
5
8.4 (Misconduct).10
In an Order dated March 28, 2013, we referred the matter for a hearing to Judge
Melissa Phinn of the Circuit Court for Baltimore City, pursuant to Maryland Rule 16-757.11
10
Rule 8.4 provides:
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Maryland Lawyers' Rules of Professional
Conduct, knowingly assist or induce another to do so, or do so through the
acts of another;
(b) commit a criminal act that reflects adversely on the lawyer’s honesty,
trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or
misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) knowingly manifest by words or conduct when acting in a professional
capacity bias or prejudice based upon race, sex, religion, national origin,
disability, age, sexual orientation or socioeconomic status when such action
is prejudicial to the administration of justice, provided, however, that
legitimate advocacy is not a violation of this paragraph;
(f) state or imply an ability to influence improperly a government agency or
official or to achieve results by means that violate the Maryland Lawyers’
Rules of Professional Conduct or other law; or
(g) knowingly assist a judge or judicial officer in conduct that is a violation
of applicable rules of judicial conduct or other law.
11
Maryland Rule 16-757 provides:
(a) Generally. The hearing of a disciplinary or remedial action is governed
by the rules of evidence and procedure applicable to a court trial in a civil
action tried in a circuit court. Unless extended by the Court of Appeals, the
hearing shall be completed within 120 days after service on the respondent
of the order designating a judge. Before the conclusion of the hearing, the
judge may permit any complainant to testify, subject to cross-examination,
regarding the effect of the alleged misconduct. A respondent attorney may
offer, or the judge may inquire regarding, evidence otherwise admissible of
any remedial action undertaken relevant to the allegations. Bar Counsel may
respond to any evidence of remedial action.
(continued . . . )
6
On August 22, 2013, at the request of Judge Marcella Holland, Circuit Administrative
Judge for the Eighth Judicial Circuit, this case was reassigned to Judge Timothy J. Doory.
On May 31, 2013, a copy of the Petition, our Order and a writ of summons was
served on Mixter’s counsel to which Mixter filed an Answer in which he denied all of Bar
Counsel’s allegations. A five-day hearing was held before Judge Doory, during which
voluminous exhibits from both parties were admitted, the majority of which included
Mixter’s files from the various cases in which his actions occurred, as well as testimony
from expert and lay witnesses; the latter included character witnesses called by Mixter.
Judge Doory, on June 9, 2014, issued Findings of Fact and Conclusions of Law in which
( . . . continued)
(b) Burdens of proof. The petitioner has the burden of proving the averments
of the petition by clear and convincing evidence. A respondent who asserts
an affirmative defense or a matter of mitigation or extenuation has the burden
of proving the defense or matter by a preponderance of the evidence.
(c) Findings and conclusions. The judge shall prepare and file or dictate into
the record a statement of the judge's findings of fact, including findings as to
any evidence regarding remedial action, and conclusions of law. If dictated
into the record, the statement shall be promptly transcribed. Unless the time
is extended by the Court of Appeals, the written or transcribed statement shall
be filed with the clerk responsible for the record no later than 45 days after
the conclusion of the hearing. The clerk shall mail a copy of the statement to
each party.
(d) Transcript. The petitioner shall cause a transcript of the hearing to be
prepared and included in the record.
(e) Transmittal of record. Unless a different time is ordered by the Court of
Appeals, the clerk shall transmit the record to the Court of Appeals within 15
days after the statement of findings and conclusions is filed.
7
he found, by clear and convincing evidence, that Mixter had violated Rules 3.1, 3.2, 3.3,
3.4(a), (c), (d) and (f),12 4.1(a), 4.4(a) and 8.4(a), (c) and (d), but not Rules 5.3(c) and 8.1.13
For an understanding of the bases of Judge Doory’s findings that Mixter had filed
various frivolous motions and made misrepresentations in connection with unenforceable
subpoenas, as well as that Mixter made misrepresentations to various courts in relation to
Maryland Rule 2-43114 certificates, we provide an overview of the applicable Maryland
Rules.
Subpoenas, according to Maryland Rule 2-510(a),15 may be issued “to compel a
party over whom the court has acquired jurisdiction to attend, give testimony, and produce
12
In his Findings of Fact and Conclusions of Law, Judge Doory identified that Respondent
had violated “Rule 3.4(e)”, although the language of 3.4(f) was quoted. Rule 3.4(f) is the
applicable Rule.
13
Mixter testified “in trial and at deposition that he takes complete responsibility for any
and all product by his office”; as a result, Judge Doory concluded that Mixter had not
violated Rule 5.3. Judge Doory concluded that Mixter had not violated Rule 8.1 in “view
of extensive records and documents provided by Respondent and counsel”. Petitioner has
not excepted to these conclusions, so we will not address them further.
14
Maryland Rule 2-431 provides:
A dispute pertaining to discovery need not be considered by the court unless
the attorney seeking action by the court has filed a certificate describing the
good faith attempts to discuss with the opposing attorney the resolution of
the dispute and certifying that they are unable to reach agreement on the
disputed issues. The certificate shall include the date, time, and
circumstances of each discussion or attempted discussion.
15
Maryland Rule 2-510 provides, in pertinent part:
(a) Use. A subpoena is required to compel the person to whom it is directed
to attend, give testimony, and produce designated documents, electronically
(continued . . . )
8
and permit inspection [and] copying . . . of designated documents . . . or tangible things at
a deposition,” the service of which is “permitted by Rule 2-121(a)(3)”.16 Maryland Rule
( . . . continued)
stored information, or tangible things at a court proceeding, including
proceedings before a master, auditor, or examiner. A subpoena is also
required to compel a nonparty and may be used to compel a party over whom
the court has acquired jurisdiction to attend, give testimony, and produce and
permit inspection, copying, testing, or sampling of designated documents,
electronically stored information, or tangible things at a deposition. A
subpoena shall not be used for any other purpose. If the court, on motion of
a party alleging a violation of this section or on its own initiative, after
affording the alleged violator a hearing, finds that a party or attorney used or
attempted to use a subpoena for a purpose other than a purpose allowed under
this section, the court may impose an appropriate sanction upon the party or
attorney, including an award of a reasonable attorney's fee and costs, the
exclusion of evidence obtained by the subpoena, and reimbursement of any
person inconvenienced for time and expenses incurred.
***
(d) Service. A subpoena shall be served by delivering a copy to the person
named or to an agent authorized by appointment or by law to receive service
for the person named or as permitted by Rule 2-121 (a)(3). Service of a
subpoena upon a party represented by an attorney may be made by service
upon the attorney under Rule 1-321 (a). A subpoena may be served by a
sheriff of any county or by any person who is not a party and who is not less
than 18 years of age. Unless impracticable, a party shall make a good faith
effort to cause a trial or hearing subpoena to be served at least five days
before the trial or hearing.
16
Maryland Rule 2-121(a) provides, in pertinent part:
(a) Generally. Service of process may be made within this State or, when
authorized by the law of this State, outside of this State . . . (3) by mailing to
the person to be served a copy of the summons, complaint, and all other
papers filed with it by certified mail requesting: “Restricted Delivery—show
to whom, date, address of delivery.” Service by certified mail under this Rule
is complete upon delivery. Service outside of the State may also be made in
the manner prescribed by the court or prescribed by the foreign jurisdiction
if reasonably calculated to give actual notice.
9
2-121(a)(3) provides that service may be accomplished by mailing by certified mail,
restricted delivery, and that service “by certified mail under this Rule is complete upon
delivery.” “If service is by certified mail, the proof shall include the original return
receipt.” Maryland Rule 2-126(a)(3). When a deposition subpoena is issued which calls
for the production of documents, Maryland Rule 2-412(c) provides that, “the designation
of the materials to be produced as set forth in the subpoena shall be attached to or included
in the notice and the subpoena shall be served at least 30 days before the date of the
deposition.”17
Furthermore, according to Maryland Rule 2-413(a)(1),18 a non-party witness only
may be required to attend a deposition “in the county in which the person resides or is
17
Maryland Rule 2-412 provides, in relevant part:
(c) Documents or other tangible things. The notice to a party deponent may
contain or be accompanied by a request for the production of documents or
other tangible things at the taking of the deposition, in which case the
provisions of Rule 2-422 shall apply to the request. A non-party deponent
may be required to produce documents or other tangible things at the taking
of the deposition by a subpoena. If a subpoena requiring the production of
documents or other tangible things at the taking of the deposition is to be
served on a party or nonparty deponent, the designation of the materials to
be produced as set forth in the subpoena shall be attached to or included in
the notice and the subpoena shall be served at least 30 days before the date
of the deposition.
18
Maryland Rule 2-413 provides:
(a) Nonparty. (1) In this State. A resident of this State who is not a party
may be required to attend a deposition in this State only in the county in
which the person resides or is employed or engaged in business, or at any
other convenient place fixed by order of court. A nonresident who is not a
party may be required to attend a deposition in this State only in the county
in which the nonresident is served with a subpoena or within 40 miles from
(continued . . . )
10
employed or engaged in business, or at any other convenient place fixed by order of court.”
A party to an action, on the other hand, “may be required to attend a deposition wherever
a nonparty could be required to attend or in the county in which the action is pending.”
Maryland Rule 2-413(b).
Because “the subpoena powers of the State of Maryland stop at the state line”,
(Attorney Grievance v. Gallagher, 371 Md. 673, 702, 810 A.2d 996, 1013 (2002), quoting
Bartell v. Bartell, 278 Md. 12, 19, 357 A.2d 343, 347 (1976)), when the deposition of,
and/or documents from, a non-party outside of Maryland is sought, the dictates “of the
place where the deposition is held” must be followed. Maryland Rule 2-413(a)(2). The
intersection of Maryland Rules 2-413(a)(1), (a)(2) and (b) has been described as:
[Rule 2-413] is conceptually a venue rule providing for the place
where a deposition is taken. It is limited by the judicial power of the courts
to compel appearance or to sanction nonappearance. As a practical matter, a
nonresident nonparty may be compelled to attend a deposition only to the
extent he or she is subject to a body attachment, i.e., is present in the state.
See Rule 2-510(i). A party’s deposition may be noticed for a location in the
county where the action is pending, whether or not the party is a resident of
that county. This is because the party has been subjected to the judicial
power of the court when initially served with process in the action under Rule
2-121. The party who is a resident of the State may be deposed in the county
in which the party resides or works as well.
With respect to a nonparty, there are fewer appropriate locations. The
nonparty who is a resident may be deposed in the county where he or she
lives or works. A nonresident, on the other hand, cannot be forced to give a
(continued . . . )
the place of service, or at any other convenient place fixed by order of court.
(2) Out of State. A person who is not a party may be required to attend a
deposition outside of this State in accordance with the law of the place where
the deposition is held.
(b) Party. A party may be required to attend a deposition wherever a
nonparty could be required to attend or in the county in which the action is
pending.
11
deposition in this State at all unless served with a subpoena while in this
State. If the nonresdience is served in this State, the deposition may be taken
in the county of service or within 40 miles of the place of service. If not
served with a subpoena while in this State, the nonresident will have to be
deposed in his or her own state under its rules.
Neimeyer & Schuett, Rule 2-413, Maryland Rules Commentary 297 (3d ed. 2003, 2013
Supp.)
Subpoenas were issued, by Mixter, to non-party witnesses in various of the
following states during the years specified, according to Judge Doory’s findings of fact:
Arizona (2012),19 Florida (2008, 2009, 2011),20 Iowa (2009, 2010),21
19
In 2012, Rule 30(h) of the Arizona Rules of Civil Procedure provided that when “an
action is pending in a jurisdiction foreign to the State of Arizona and a party or a party’s
attorney wishes to take a deposition in this state, it may be done and a subpoena or subpoena
duces tecum may issue therefore from the Superior Court of this state.”
20
In Florida, for all relevant years, if a party to a pending action in a foreign jurisdiction
sought the deposition of an individual within Florida, that party was required to obtain “a
mandate, writ or commission” from the court in which the action was proceeding. Fla.
Stat. Ann. § 92.251 (2014). Section 92.251 of the Florida Statutes has not been amended
over the time period of the instant action.
21
In Iowa, during the time period at issue, subpoenas from other states must have been
issued and served pursuant to the requirements of the Iowa district courts. I.C.A. § 622.84
(2009, 2010). Service of a subpoena in Iowa, therefore, required a subpoena to be issued
from the clerk of the Iowa District Court. Iowa R. Civ. P. 1.1701(2) (2009, 2010).
12
North Carolina (2010),22 Pennsylvania (2008, 2009, 2010),23 South Carolina (2009,
2010),24
22
In 2010, Rule 25 of the North Carolina Rules of Civil Procedure required that, “A person
desiring to take depositions in this State to be used in proceedings pending in the courts of
any other state or country may present to a judge of the superior or district court a
commission, order, notice, consent, or other authority under which the deposition is to be
taken, whereupon it shall be the duty of the judge to issue the necessary subpoenas”. N.C.
Gen. Stat. § 1A-1, Rule 28 (2010).
23
During the relevant time frame, Section 5326(a) of Title 42 of the Pennsylvania
Consolidated Statutes provided that:
A court of record of this Commonwealth may order a person who is
domiciled or is found within this Commonwealth to give his testimony or
statement or to produce documents or other things for use in a matter pending
in a tribunal outside this Commonwealth. The order may be made upon the
application of any interested person or in response to a letter rogatory and
may prescribe the practice and procedure, which may be wholly or in part
the practice and procedure of the tribunal outside this Commonwealth, for
taking the testimony or statement or producing the documents or other things.
Since 2011, for a litigant outside of Pennsylvania to obtain a deposition from a party within
Pennsylvania, “a party must submit a foreign subpoena to [the chief clerk] in the
jurisdiction in which the person who is the subject of the order resides, is employed or
regularly transacts business in person.” 42 Pa. Cons. Stat. § 5335(a) (2011).
24
In South Carolina, prior to April 1, 2010:
When the deposition of a witness or production of documents or other things,
is to be done in this State for use in an out-of-state action or proceeding, an
attorney, licensed to practice law in this State, or the clerk of court, may issue
a subpoena, including a subpoena duces tecum, compelling the attendance of
such witness at that deposition, or the production of documents or other
things pursuant to this rule and subject to all of the requirements of Rule 45
and Rule 11, only after payment of the filing fee set by Administrative Rule,
and after filing with the Clerk of Court:
(A) A certified copy of any mandate, writ, or commission issued by a
court of record in any other state, territory, district, or foreign jurisdiction
directing that such deposition be taken or documents or other things
produced; or
(continued . . . )
13
Texas (2012),25 Virginia (2007, 2009, 2010, 2011)26 and Washington D.C. (2007, 2008,
2009, 2010, 2012).27 Several states have in the past required, or continue to require, the
issuance of a “commission” to take a deposition pursuant to litigation in another state. A
“commission” is a court order that authorizes the judiciary of another state to issue a
(continued . . . )
(B) a certified copy of a notice or written agreement filed in a court of
record in any other state, territory, district, or foreign jurisdiction directing
that such deposition be taken or documents or other things produced.
S.C. R. Civ. P. 28(d)(1) (2010). On April 1, 2010, new legislation was enacted, which
requires only that “a party must submit a foreign subpoena to the clerk of court of the
county in which discovery is sought to be conducted in this State.” S.C. Code Ann. § 15-
47-120(A) (2010).
25
To obtain a deposition for a foreign cause of action in Texas, Section 20.002 of the Texas
Civil Practice and Remedies Code requires that the court of record in the foreign
jurisdiction issue “a mandate, writ, or commission” commanding the witness’s testimony
in Texas, before following additional procedures.
26
In Virginia, prior to July 1, 2009, “a mandate, writ or commission” had to have been
issued by the court of record in the foreign jurisdiction commanding the deposition. Va.
Code Ann. § 8.01-411 (2009). Since July 1, 2009, Section 8.01-412.10(A) of the Civil
Remedies and Procedure Title of the Virginia Code requires, to request issuance of a
Virginia subpoena for foreign litigation, submission “to the clerk of court in the circuit in
which discovery is sought to be conducted in the Commonwealth (i) a foreign subpoena
and (ii) a written statement that the law of the foreign jurisdiction grants reciprocal
privileges to citizens of the Commonwealth”.
27
In Washington D.C., prior to May 22, 2010, a commission as well as notice of the
deposition sent to the deponent had to have been issued from the court outside of the
District of Columbia, along with leave of a judge of the United States District Court or of
the Superior Court of the District of Columbia, in order to obtain a deposition from a
witness within the District. D.C. Code § 14-103. Since May 22, 2010, the statute requires
that “the party seeking that testimony may file with [the Superior] Court a certified copy
of the commission or notice.” D.C. Super. Ct. R. Civ. P. 28-I(b). The Clerk of the Superior
Court will, with the “approval by the judge in chambers of the commission or notice . . .
issue a subpoena compelling the designated witness to appear for deposition”. Id.14
subpoena to the witness who is located in that state. See Forensic Advisors, Inc. v. Matrixx
Initiatives, Inc., 170 Md. App. 520, 525, 907 A.2d 855, 857 (2006).
Securing medical records of an adverse party requires observance of one of a variety
of additional protocols as provided by Section 4-306 of the Health-General Article of the
Maryland Code, four of which are relevant.28 First, the party requesting the records may
submit written assurance to the health care provider that “a person in interest has not
objected to the disclosure of the designated medical records within 30 days after the notice
[that medical records had been requested] was sent” to the patient.29 Section 4-
306(b)(6)(i)(1)(B). In the event that there had been an objection to disclosure of the health
28
Section 4-306(b) of the Health-General Article of the Maryland Code provides, in
relevant part:
(b) Permitted disclosures. – A health care provider shall disclose a medical
record without the authorization of a person in interest:
***
(6) Subject to the additional limitations for a medical record developed
primarily in connection with the provision of mental health services in § 4-
307 of this subtitle and except as otherwise provided in items (2), (7), and (8)
of this subsection, in accordance with compulsory process, if the health care
provider receives:
(i) 1. A written assurance from the party or the attorney representing
the party seeking the medical records that: . . . B. In all other
proceedings, a person in interest has not objected to the disclosure of
the designated medical records within 30 days after the notice was
sent; or C. The objections of a person in interest have been resolved
and the request for disclosure is in accordance with the resolution;
2. Proof that service of the subpoena, summons, warrant, or court
order has been waived by the court for good cause; or
3. A copy of an order entered by a court expressly authorizing
disclosure of the designated medical records;
29
Section 4-306(b)(6)(iii) of the Health-General Article of the Maryland Code contains a
form notice to be sent to the individual who is the subject of the requested records.
15
care records, the party seeking disclosure could provide written certification to the health
care provider that the objection had been resolved and that the new request complies with
the terms of the resolution to the objection. Section 4-306(b)(6)(i)(1)(C). The health care
service provider also could be afforded proof that the court in which the litigation is
pending has waived service of a subpoena for the production of documents to the provider
for good cause. Section 4-306(b)(6)(i)(2). The fourth possibility is to submit to the health
care provider a copy of a court order expressly authorizing disclosure of the designated
medical records. Section 4-306(b)(6)(i)(3).
Maryland Rule 2-431 also creates a “certificate requirement” that is a prerequisite
to the trial court’s resolution of a discovery dispute. The Rule provides that a court need
not consider a discovery dispute, “unless the attorney seeking action by the court has filed
a certificate describing the good faith attempts” to resolve the dispute with opposing
counsel. The attorney must certify that he or she had been unable to reach an agreement
with the opposition on the disputed issues and must “include the date, time, and
circumstances of each discussion or attempted discussion.”
In Rodriguez v. Clarke, 400 Md. 39, 63, 926 A.2d 736, 750 (2007), we examined
the history and purpose of the “certificate requirement” contained in Maryland Rule 2-431
and emphasized that making “sincere attempts” to resolve discovery disputes is “integral
to the entire discovery process”:
The import of Maryland Rule 2-431’s good faith requirement is highlighted
by its history. Its language derives from former Rule 417(g), “Discovery by
Interrogatories to Party ... Gen’l,” which provided:
No dispute relating to discovery by way of interrogatory need
be heard by the court unless counsel requesting the hearing
16
shall first certify to the court in writing that after personal
consultation and sincere attempts to resolve the differences
with opposing counsel, they have been unable to reach
agreement on the disputed issues. No such efforts or
certification shall be required with respect to any other form of
discovery procedure provided for in Chapter 400 of these
Rules.
Maryland Rule 417(g) (adopted Dec. 17, 1975; effective Jan. 1, 1976)
(emphasis added). In 1980, this Court, recognizing that the “sincere
attempts” provision of Rule 417(g) was integral to the entire discovery
process, directed the Rules Committee to relocate the “sincere attempts”
certificate requirement to Rule 422, “Failure to Make Discovery-
Sanctions,” thereby making it applicable to the entire discovery process and
to require that the certificate also set forth the date, time and place of each
attempt. See Minutes of Rules Committee, November 18-19, 1977, and June
20-21, 1980. This Court subsequently adopted subsection (d) of Rule 422,
providing that:
No dispute relating to discovery need be heard by the court
unless counsel requesting the hearing shall first certify to the
court in writing that after personal consultation and sincere
attempts to resolve the differences with opposing counsel they
have been unable to reach agreement on the disputed issues.
This statement shall recite, in addition, the date, time, and place
of each consultation, and the names of all persons participating
therein.
Maryland Rule 422(d) (adopted Oct. 1, 1980: effective Jan. 1, 1981).
During the revisory process of the Maryland Rules undertaken in the
early 1980’s, the subcommittee tasked with recodifying Chapter 400 of the
Maryland Rules submitted numerous revisions of Rule 422, the first of which
modified the “personal consultation” and “sincere attempts” language and
provided:
No dispute pertaining to discovery need be considered by the
court unless counsel seeking action by the court shall first file
a certificate describing the good faith attempts to communicate
with opposing counsel for the purpose of resolving the dispute
and certifying that they are unable to reach agreement on the
disputed issues. The certificate shall include the date, time, and
place of each attempt to communicate with opposing counsel
and of each communication with opposing counsel.
Maryland Rules Committee, Notes of Style Subcommittee (Nov. 3, 1981)
(emphasis added). The rule was later modified so that the “good faith
attempts to communicate” became a requirement to make “good faith
attempts to discuss,” and “the date, time and place of each attempt to
17
communicate” was changed to require the setting forth “the date, time and
circumstances of each discussion or attempted discussion.” Maryland Rules
Committee, Notes of Style Subcommittee (April 28, 1983). This Court
adopted the Committee’s second draft recommendations on April 6, 1984,
and the new Rule 2-431 became effective July 1, 1984.
Id. at 63-65, 926 A.2d at 750-51.
Discovery disputes arise, generally, when parties cannot agree upon the propriety
of a particular disclosure, request or response; although ignoring discovery requests
altogether also generates issues:
Two general sorts of discovery disputes arise in the pretrial discovery
process. The first is when discovery has been requested and the opponent
responds but refuses to provide discovery at all or to the extent requested.
Often, such a dispute stems from a good faith difference of opinion as to
whether the requested discovery is appropriate. The second situation,
lamentably, is when the party from whom discovery has been sought has
simply ignored the discovery request or intentionally refused even to respond
to it.
John A. Lynch, Jr. & Richard W. Bourne, Modern Maryland Civil Procedure 7-127 (2d
ed. 2004, 2014 supp.).30 Maryland Rules
30
Discovery disputes, however, have become symptomatic of a decline in professionalism.
As the Maryland Judicial Task Force on Professionalism noted in its Report and
Recommendations:
In many jurisdictions, the group heard from lawyers with as many as fifty
years experience at the bar. Without exception, these senior practitioners
opined that professionalism has declined over the years. The decline is
marked by rancorous discovery disputes; a loss of trust between lawyers
(resulting in an increase in “defensive practices,” for instance, the perceived
need to memorialize every discussion with a confirmatory letter); a
breakdown of the traditional mentoring of new lawyers; an increase in the
unauthorized practice of law; a lack of civility in and out of the courtroom;
the failure of courtroom attorneys to treat witnesses and each other with
respect; and an increase in lawyer advertising.
(continued . . . )
18
(continued . . . )
Judge Gorsuch of the United States Court of Appeals for the Tenth Circuit recently
echoed the sentiments of the Maryland Judicial Task Force, observing that trial judges
regularly “live and breathe [discovery] problems; they have a strong situation sense about
what is and isn’t acceptable conduct”, and when discovery disputes evolve into discovery
abuses, the merits of the case are forgotten and the time and resources of the parties and
attorneys are needlessly wasted:
Back in 1937 the drafters of the Federal Rules promised that their project
would help ensure “the just, speedy, and inexpensive determination of every
action.” Fed.R.Civ.P. 1. To date, that promise remains elusive, more
aspirational than descriptive. But it is surely the case that if court orders can
be repeatedly flouted we will only retreat further from the goal. When a party
feels at liberty to disobey not just a discovery request but two court orders
compelling production of the same material in its control, weeks or months
(as in this case) pass without progress in the litigation. Hours, days, weeks
or lawyers’ time are consumed at great expense. Focus shifts from the merits
to the collateral and needless. This is not speedy, inexpensive, or just. Just
the opposite. And no doubt tolerating such behavior would encourage only
more of it. But there is such thing as discovery karma. Discovery
misconduct often may be seen as tactically advantageous at first. But just as
our good and bad deeds eventually tend to catch up with us, so do discovery
machinations.
Lee v. Max Int’l, LLC, 638 F.3d 1318, 1320, 1321 (10th Cir. 2011). Maryland Rule 1-
201(a) contains an aspirational purpose as well when it states, “These rules shall be
construed to secure simplicity in procedure, fairness in administration, and elimination of
unjustifiable expense and delay.”
19
2-403,31 2-415(j),32
31
Maryland Rule 2-403 provides:
(a) Motion. On motion of a party, a person from whom discovery is sought,
or a person named or depicted in an item sought to be discovered, and for
good cause shown, the court may enter any order that justice requires to
protect a party or person from annoyance, embarrassment, oppression, or
undue burden or expense, including one or more of the following: (1) that
the discovery not be had, (2) that the discovery not be had until other
designated discovery has been completed, a pretrial conference has taken
place, or some other event or proceeding has occurred, (3) that the discovery
may be had only on specified terms and conditions, including an allocation
of the expenses or a designation of the time or place, (4) that the discovery
may be had only by a method of discovery other than that selected by the
party seeking discovery, (5) that certain matters not be inquired into or that
the scope of the discovery be limited to certain matters, (6) that discovery be
conducted with no one present except persons designated by the court, (7)
that a deposition, after being sealed, be opened only by order of the court, (8)
that a trade secret or other confidential research, development, or commercial
information not be disclosed or be disclosed only in a designated way, (9)
that the parties simultaneously file specified documents or information
enclosed in sealed envelopes to be opened as directed by the court.
(b) Order. If the motion for a protective order is denied in whole or in part,
the court may, on such terms and conditions as are just, order that any party
or person provide or permit discovery.
32
Maryland Rule 2-415(j) provides:
(j) Motions to suppress. An objection to the manner in which testimony is
transcribed, videotaped, or audiotaped, or to the manner in which a transcript
is prepared, signed, certified, sealed, endorsed, transmitted, filed, or
otherwise dealt with by the officer is waived unless a motion to suppress all
or part of the deposition is made promptly after the defect is or with due
diligence might have been ascertained. In ruling on a motion to suppress, the
court may grant leave to any party to depose the deponent further on terms
and conditions the court deems appropriate.
20
2-424(c),33 2-432(b),34
33
Maryland Rule 2-424(c) provides:
(c) Determination of sufficiency of response. The party who has requested
the admission may file a motion challenging the timeliness of the response
or the sufficiency of any answer or objection. A motion challenging the
sufficiency of an answer or objection shall set forth (1) the request, (2) the
answer or objection, and (3) the reasons why the answer or objection is
insufficient. Unless the court determines that an objection is justified, it shall
order that an answer be served. If the court determines that an answer does
not comply with the requirements of this Rule, it may order either that the
matter is admitted or that an amended answer be served. If the court
determines that the response was served late, it may order the response
stricken. The court may, in place of these orders, determine that final
disposition of the request be made at a pretrial conference or at a designated
time prior to trial.
34
Maryland Rule 2-432(b) provides, in relevant part:
(b) For order compelling discovery. (1) When Available. A discovering
party, upon reasonable notice to other parties and all persons affected, may
move for an order compelling discovery if
(A) there is a failure of discovery as described in section (a) of this
Rule,
(B) a deponent fails to answer a question asked in an oral or written
deposition,
(C) a corporation or other entity fails to make a designation under Rule
2-412 (d),
(D) a party fails to answer an interrogatory submitted under Rule 2-
421,
(E) a party fails to comply with a request for production or inspection
under Rule 2-422,
(F) a party fails to supplement a response under Rule 2-401(e), or
(G) a nonparty deponent fails to produce tangible evidence without
having filed written objection under Rule 2-510 (f).
21
2-433(a),35 2-43436 and
35
Maryland Rule 2-433(a) provides:
(a) For certain failures of discovery. Upon a motion filed under Rule 2-432
(a), the court, if it finds a failure of discovery, may enter such orders in regard
to the failure as are just, including one or more of the following:
(1) An order that the matters sought to be discovered, or any other designated
facts shall be taken to be established for the purpose of the action in
accordance with the claim of the party obtaining the order;
(2) An order refusing to allow the failing party to support or oppose
designated claims or defenses, or prohibiting that party from introducing
designated matters in evidence; or
(3) An order striking out pleadings or parts thereof, or staying further
proceeding until the discovery is provided, or dismissing the action or any
part thereof, or entering a judgment by default that includes a determination
as to liability and all relief sought by the moving party against the failing
party if the court is satisfied that it has personal jurisdiction over that party.
If, in order to enable the court to enter default judgment, it is necessary to
take an account or to determine the amount of damages or to establish the
truth of any averment by evidence or to make an investigation of any matter,
the court may rely on affidavits, conduct hearings or order references as
appropriate, and, if requested, shall preserve to the plaintiff the right of trial
by jury.
Instead of any of those orders or in addition thereto, the court, after
opportunity for hearing, shall require the failing party or the attorney
advising the failure to act or both of them to pay the reasonable costs and
expenses, including attorney’s fees, caused by the failure, unless the court
finds that the failure was substantially justified or that other circumstances
make an award of costs and expenses unjust.
36
Maryland Rule 2-434 provides:
(a) Failure of party giving notice to attend. If the party giving notice of the
taking of a deposition on oral examination fails to attend and proceed and
another party attends pursuant to the notice, the court may order the party
giving the notice to pay to the other party the reasonable expenses incurred
in attending, including reasonable attorney’s fees.
(b) Failure to subpoena witness. If the party giving notice of the taking of
a deposition of a witness fails to serve a subpoena upon the witness who for
(continued . . . )
22
2-510(f)37 provide means through which court involvement can be sought to determine
whether there had been proper discovery requests or objections. Id.Against this backdrop, this case arose out of “the Respondent’s conduct in twenty-
two (22) separate cases” that “span a period of approximately seven years and involve
different parties, different opposing counsel, different judges and different courts”,
according to Judge Doory’s findings of fact, as listed in Appendix 1.38 In sixteen of the
(continued . . . )
that reason does not attend and another party attends pursuant to the notice,
the court may order the party giving the notice to pay to the other party the
reasonable expenses incurred in attending, including reasonable attorney’s
fees.
37
Maryland Rule 2-510(f) provides:
(f) Objection to subpoena for deposition. A person served with a subpoena
to attend a deposition may seek a protective order pursuant to Rule 2-403. If
the subpoena also commands the production of documents, electronically
stored information, or tangible things at the deposition, the person served or
a person named or depicted in an item specified in the subpoena may seek a
protective order pursuant to Rule 2-403 or may file, within ten days after
service of the subpoena, an objection to production of any or all of the
designated materials. The objection shall be in writing and shall state the
reasons for the objection. If an objection is filed, the party serving the
subpoena is not entitled to production of the materials except pursuant to an
order of the court from which the subpoena was issued. At any time before
or within 15 days after completion of the deposition and upon notice to the
deponent, the party serving the subpoena may move for an order to compel
the production.
A claim that information is privileged or subject to protection as work
product materials shall be supported by a description of each item that is
sufficient to enable the demanding party to evaluate the claim.
38
Judge Doory’s Findings of Fact and Conclusions of Law encompassed seventy-six pages,
as well as an additional twenty pages of appendices, which have been reprinted as
appendices to this opinion.
(continued . . . )
23
twenty-two cases, Mixter represented the defendant(s), in five cases he represented the
plaintiff(s) and in one case he represented himself.39
(continued . . . )
Appendix 1 is a case list, describing each case and Respondent’s role therein;
Appendix 2 contains a list of all sixty-two motions directed at non-party witnesses Judge
Doory found to be frivolous; Appendix 3 lists the twenty-four motions directed at out-of-
state witnesses that Judge Doory determined to be frivolous; Appendix 4 is a list of thirty-
five subpoenas Judge Doory determined had been improperly directed at out-of-state
witnesses; Appendix 5 contains forty-two motions directed at an opposing party that Judge
Doory determined had been frivolous; Appendix 6 lists fifty-three instances in which Judge
Doory found that the Respondent had knowingly filed a false certification of good faith
efforts to resolve a discovery dispute; and Appendix 7 contains twelve instances in which
Judge Doory found Respondent had made misrepresentations to a court by omitting from
his motions communications with opposing counsel or witnesses regarding discovery
disputes.
39
The violations charged involved only those occurring after March 7, 2008, the date upon
which this Court had issued a public reprimand to Respondent for violation of Rules 3.2
and 8.4(d), arising out of complaints involving discovery abuses.
The twenty-two cases included 20 cases in the Maryland court system:
1. Alemu v. Lawrence Street Industry, LLC (hereinafter “Alemu”)
2. Byrne-Egan v. Empire Express, Inc. (hereinafter “Byrne-Egan”)
3. Canby v. Yu (hereinafter “Canby”)
4. Dunston v. Coldspring Associates, LLP (hereinafter “Dunston”)
5. Fitzgerald v. MCT Charter Tours (hereinafter “Fitzgerald”)
6. Garnett v. Elkton Manor Corp. (hereinafter “Garnett”)
7. Gnip v. Annapolis Roads Apartments Co. (hereinafter “Gnip”)
8. Gonzales v. Rubio Restaurant Management Corp. (hereinafter “Gonzales”)
9. Green v. Council of Unit Owners of Rockland Condominium Inc. (hereinafter
“Green”)
10. Greenstein v. Council of Unit Owners of Avalon Court Six Condominium Inc.
(hereinafter “Greenstein”)
11. Johnson v. Central Transport, Inc. (hereinafter “Johnson”)
12. King v. Abbott Enterprises, Inc. (hereinafter “King”)
13. Koontz v. New Summer Place North Village Condominium (hereinafter “Koontz”)
14. Mixter v. Farmer (hereinafter “Mixter”)
(continued . . . )
24
Judge Doory’s findings of fact as to Respondent’s actions fall into the following
categories: Frivolous Motions Directed at Non-Party Witnesses; Frivolous Motions
Directed at Out-of-State Witnesses; Subpoenas Issued to Out-of-State Witnesses;
Subpoenas Issued in Violation of Rule 2-413; Additional Abuses of Subpoena Power;
Frivolous Motions Directed at Opposing Party; False Certifications; Misrepresentations by
Omissions; Misrepresentations and Disregard for Court Orders and Directives;
Maintaining and Pursuing Litigation in Bad Faith; The Varner Opinion and Expert Witness
Compensation; and Motions for Contempt: Harassment and Intimidation.40
Judge Doory found that in eleven of the twenty-two cases, Respondent had issued
subpoenas to out-of-state witnesses compelling production of documents without having
followed the proper protocol for doing so, listed in Appendices 3 and 4, and, further, that
(continued . . . )
15. Pearson v. Lyles (hereinafter “Pearson”)
16. Presbury v. Forest Hill Health & Rehabilitation Center, Inc. (hereinafter
“Presbury”)
17. Railey v. M.E. Burton, LLC (hereinafter “Railey”)
18. Smith v. Chineme (hereinafter “Chineme”)
19. Smith v. Keener (hereinafter “Keener”)
20. Translucent Communications v. APC Wireless (hereinafter “Translucent”)
The two other cases were filed in the United States District Court for the District of
Maryland:
1. Davis v. Babcock & Brown, LP (hereinafter “Davis”)
2. Fuselier v. Cary (hereinafter “Fuselier”)
The impact of Mixter’s actions were felt in the Circuit Courts for Anne Arundel, Baltimore,
Charles, Montgomery, Prince Georges and Washington Counties, as well as the Circuit
Court for Baltimore City and the United States District Court for the District of Maryland.
40
The portion of Judge Doory’s findings of fact entitled “Lack of Civility” has been
omitted, as well as Mixter’s exceptions thereto, because it is “irrelevant to the ultimate
finding” of Mixter’s misrepresentations. Attorney Grievance Comm’n v. Miller, 301 Md.
592, 604, 483 A.2d 1281, 1288 (1984).
25
Mixter misrepresented to the recipients that they could be compelled to appear in
Maryland. In seven of the eleven cases, Judge Doory found that Respondent had filed
frivolous motions with the various courts to enforce the invalid subpoenas, listed in
Appendix 3.
In fourteen cases, Judge Doory found that Respondent had filed various different
frivolous motions, some to compel, some for sanctions or some seeking contempt, directed
to non-party witnesses emanating from his issuance of subpoenas that lacked proof of
service or intentionally did not provide sufficient time for production of documents, listed
in Appendix 2.
In fifteen cases, according to the findings of fact, Mixter had also made false
certifications to the various courts asserting that he had engaged in good faith efforts to
resolve discovery disputes, listed in Appendix 6. Judge Doory found that, in eight of those
fifteen cases, Mixter had made misrepresentations to the courts by omitting material
information from his motions, listed in Appendix 7.
We recount below, for each of the categories of Judge Doory’s findings,
representative examples within the category.41 The complete lists of Judge Doory’s
findings are included in the appendices attached to this opinion.
II. Judge Doory’s Findings of Fact
In the first category of findings, entitled “Frivolous Motions Directed at Witnesses”,
Judge Doory found that sixty-two separate motions to compel or hold in contempt, listed
41
Internal record citations within Judge Doory’s Findings of Fact have been omitted.
26
in Appendix 2, filed by Respondent and directed at non-party witnesses, were frivolous,
because the underlying subpoenas that had commanded the appearance of the non-party
witness and the production of documents were unenforceable. Judge Doory determined
that the subpoenas were invalid, because “there was either no proof of service of the
subpoena, or . . . it did not provide the witness the requisite 30 days to produce documents
as required by Maryland Rule 2-412(c)”:
The Court finds that each of the 62 motions in which the Respondent
alleged that a witness had been properly served with a valid subpoena
constitutes a misrepresentation to the court. The Respondent’s pattern of
practice in these cases is clear: in an attempt to mislead the Court, rather than
represent the actual date of service, each of his motions states the witness in
question was served “on or about” the date the subpoena was issued, not
served.
The Respondent knowingly, intentionally and/or recklessly attached
to the motions false evidence that the witnesses had been properly served in
an attempt to mislead the court.
One of Judge Doory’s findings in his first category was that Mixter had
misrepresented to the Circuit Court for Prince George’s County, in a case entitled Byrne-
Egan, the date of service of a subpoena on Dr. Stephen Rosenbaum, as well as that the
subpoena had been accompanied by a 30-day assurance letter. Mixter had represented in
his “Motion to Compel the Custodian of Records of Stephen Rosenbaum, M.D.”, that the
witness was served “on or about August 25, 2011” as well as “that on September 26, 2011,
the 30-day assurance letter was sent.” Judge Doory found that, in fact, there had not been
proper proof of service presented in the record and that the 30-day assurance letter
authorizing the release of the records under Section 4-306(b)(6)(i)(1) of the Health-General
27
Article of the Maryland Code had been sent on the same day the motion to compel was
filed; therefore, the Motion, Judge Doory found, was frivolous:
Another example is found in the Motion to Compel the Custodian of Records
of Stephen Rosenbaum, M.D. filed in Byrne-Egan. To support his
misrepresentation that the witness was served “on or about August 25, 2011”
the Respondent attached to his motion a signed return receipt green card.[42]
The green card is clearly from something else as it was dated August 16,
2011, more than a week before the relevant subpoena was issued. The
Respondent additionally claims that on September 26, 2011, the 30-day
assurance letter was sent. Conspicuously, the Motion was filed on the same
day – September 26, 2011 – before the witness could have received the 30
day letter and could legally release the records.
Judge Doory found that, “On occasion, the Respondent was successful in misleading
the court and the requested relief was granted”, as in Keener, in which a judge with the
Circuit Court for Charles County had granted an order compelling the production of
documents based upon Mixter’s misrepresentation that he had properly served a subpoena
on Civista Medical Center for the production of documents, along with a 30-day assurance
letter. Respondent, then, according to Judge Doory, had mailed a copy of the order to
Civista and threatened to hold Civista in contempt if it failed to produce the requested
documents:
On November 16, 2009, the Respondent in Keener, filed a motion to
compel the production of documents from various custodians of records,
including Civista Medical Center (hereinafter Civista). In the motion, the
Respondent misrepresented to the court that Civista had been properly served
with a subpoena for medical records. The subpoena, issued on September
21, 2009, was defective on its face as it required production on October 19,
2009. The subpoena was served on September 22, 2009. On October 22,
2009, the Respondent sent a 30-day assurance letter and three weeks later
filed the frivolous motion without any further attempts to resolve the
42
A “green card” is the delivery receipt returned to the sender by the United States Postal
Service.
28
“discovery dispute”. No doubt in reliance on the Respondent’s
misrepresentations that a valid subpoena was properly served and good faith
efforts were made to resolve the discovery dispute prior to the filing of the
motion, on March 11, 2010 an order compelling Civista to produce the
requested documents was entered. On April 12, 2010, the Respondent
mailed a copy of the order to Civista demanding the records be produced
within five (5) business days and threatening further court intervention. On
May 27, 2010, the Respondent filed a Motion to Hold Civista in Contempt
and a show cause order was issued. On June 17, 2010, the Respondent
withdrew the motion.
In the second category, Frivolous Motions Directed at Out-of-State Witnesses,
Judge Doory found that Mixter would “knowingly or recklessly, and in complete disregard
for the Maryland Rules” issue “Maryland subpoenas to out-of-state witnesses over whom
the Maryland courts have no jurisdiction and then filed frivolous motions to compel
compliance with same.”
Judge Doory determined that twenty-four motions filed by Mixter, directed at out-
of-state witnesses, listed in Appendix 3, were frivolous, “because the court in which they
were filed had no jurisdiction over the non-party witness and their failure to comply with
a Maryland subpoena, as such, the grounds for each of the motions was without merit”:
The Respondent testified that on occasion he would mistakenly issue
a Maryland subpoena to an out-of-state witness. The Court finds the
Respondent’s testimony not to be credible and finds that the Respondent,
knowingly or recklessly, and in complete disregard for the Maryland Rules
and directives from the court, issued Maryland subpoenas to out-of-state
witnesses over whom the Maryland courts have no jurisdiction and then filed
frivolous motions to compel compliance with same. The Court finds that the
twenty-four (24) motions, identified in the attached Appendix Three (3), . . .
were frivolous because the court in which they were filed had no jurisdiction
over the non-party witness and their failure to comply with a Maryland
subpoena, as such, the grounds for each of the motions was without merit.
Additionally, the Court finds the Respondent’s failure to include the location
of the out-of-state witnesses in the body of each Motion to be intentionally
and knowingly misleading.
29
Judge Doory singled out Respondent’s actions in Mixter, a defamation case Mixter
had filed against attorneys who had filed complaints against him with the Attorney
Grievance Commission, as contradicting Respondent’s assertion that Maryland subpoenas
had been issued to out-of-state witnesses only by mistake. Judge Doory observed that a
subpoena Mixter had issued to Dr. Michael Conte in Arizona for service in that state had
been returned as unserved, and found that, after the subpoena was returned, Mixter mailed
the subpoena again to Dr. Conte on the same day he filed a motion to compel Dr. Conte’s
appearance in Maryland:
The subpoena directed to Michael Conte, Ph.D. by the Respondent in
the Mixter case and the motions that follow belie the Respondent’s testimony
that Maryland subpoenas were issued to out-of-state witnesses only on
occasion and only by mistake. On March 6, 2012, the Respondent issued a
subpoena from the Circuit Court for Baltimore County to Dr. Conte, located
in Phoenix, Arizona. He attempted to serve the subpoena by first class mail,
return receipt, restricted delivery. The subpoena directed Dr. Conte to
personally appear. On April 18, 2012, the Respondent filed a Motion to
Compel, misrepresenting to the court that Dr. Conte had been served on
March 6, 2012. No proof of service as to Dr. Conte was attached to the
Motion. The documents attached to Dr. Conte’s opposition reveal the truth:
On March 8, 2012, the certified mail directed to Dr. Conte was returned to
the Respondent. On April 18, 2012, after the date of the deposition had come
and gone, the Respondent put the returned certified mail into a new envelope
and mailed the new envelope, by first class mail only, to Dr. Conte who
received the mail on April 20, 2012. Also on April 18, 2012, the Respondent
filed his Motion to Compel, knowing that Dr. Conte had, as of that date, not
received any subpoena. In his opposition, Dr. Conte, through counsel, raised
various deficiencies with the subpoena including, inter alia, that the
Respondent issued a Baltimore City subpoena to an Arizona resident. The
Respondent, rather than acknowledge the error and withdraw his motion,
filed a Reply in which he repeated his misrepresentation that Dr. Conte had
been served on March 6, 2012 and advanced the impractical arguments that
Maryland Rule 2-413 provides the Circuit Court for Baltimore City “the
power to compel an out-of-state witness’ attendance at a deposition in
Maryland” and that somehow Dr. Conte is required to produce the requested
30
documents. Dr. Conte filed a Supplemental Memorandum in Support of his
Response to the Motion to Compel requesting attorney’s fees to which the
Respondent filed a Response in which he again misrepresented to the court
that Dr. Conte had been served on March 6, 2012 and advanced another
frivolous argument: That Dr. Conte is subject to the jurisdiction of the court
because he “previously lived and worked in the State of Maryland.”
In the third category, Judge Doory found that Respondent had issued Maryland
subpoenas, commanding the witnesses’ appearance and production of documents, to thirty-
five additional out-of-state witnesses, listed in Appendix 4, coupled with letters containing
knowing and intentional misrepresentations to the witnesses that their appearance could be
compelled in Maryland:
In addition to the Maryland subpoenas issued to out-of-state witnesses
underlying each of the frivolous motions itemized on Appendix Three (3),
the Court finds that the Respondent, in violation of the Maryland Rules
issued Maryland subpoenas to the thirty-five (35) out-of-state witnesses
identified on the attached Appendix Four (4) which is incorporated by
reference herein.
Each of the subpoenas directed to an out-of-state witness included a
cover letter from the Respondent which provided: “Enclosed please find a
notice of deposition and subpoena duces tecum which is being served upon
you via certified mail. If you would please forward copies of all documents
requested by the date of the deposition it will not be necessary for you to
testify or appear.” The Court finds the Respondent knowingly and
intentionally misrepresented to the non-party witnesses, most, if not all of
whom were non-attorneys, that they could be compelled to appear in
Maryland.
Some of the out-of-state witnesses, whom Judge Doory identified as having received
subpoenas requesting their personal appearance and the production of documents that were
improperly issued from Maryland courts, included: Bartley J. Eckhardt, P.E., of Robson
Forensic, located in Lancaster, Pennsylvania; Amgolf, Inc., located in Fairfax, Virginia;
the Hope for Life Wellness Center, Inc., located in Miami, Florida; Thomas F. Grogan,
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C.F.E., of Victoria Business Center, located in Springfield, Pennsylvania; and Dr. Stephen
Silibiger, located in Pawleys Island, South Carolina.
Judge Doory also found that Mixter, in his own case, had issued a subpoena to the
Custodian of Records of TrialSmith, Inc., located in Austin, Texas, for the production of
documents. Judge Doory noted that Mixter had accompanied the subpoena with an
unsigned Commission to Take Foreign Deposition, which was a misrepresentation that he
had requested and obtained such a commission:
Accompanying the Maryland subpoena issued to TrialSmith, Inc., located in
Austin, Texas, the Respondent provided an unsigned “Commission to Take
Foreign Deposition.” As of April 25, 2012, the docket entries reveal that no
request for commission had been made and none granted. The Court finds
the Respondent serving an unexecuted Commission to Take Foreign
Deposition on an out-of-state witness was knowingly and intentionally
deceitful.
In the fourth category, entitled “Subpoenas Issued in Violation of Rule 2-413”,
Judge Doory found that “Respondent had a pattern and practice of knowingly and
intentionally noting depositions in the wrong venue in violation of Maryland Rule 2-413”.
Mixter, according to the findings of fact, would subpoena non-party, fact witnesses
for depositions and production of documents at his office in Baltimore City, when the
witnesses were located outside of Baltimore City and the cases were not pending in
Baltimore City:
(1) Subpoenas issued to a fact witness located in Silver Spring and Laurel
compelling their appearance at Respondent’s office in Baltimore City where
the case was pending in Montgomery County. (2) Subpoena issued to the
plaintiff and fact witnesses located in Prince George’s County compelling
their appearance at Respondent’s office in Baltimore City where their case
was pending in Prince George’s County. (3) Subpoenas issued to witnesses
located in Baltimore County, compelling appearance at the Respondent’s
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office in Baltimore City. (4) Subpoenas issued to fact witnesses located in
Montgomery County, compelling their appearance at the Respondent’s
office in Baltimore City. (5) Subpoena issued to the Custodian of Records
of Maryland Association for Justice, located in Howard County compelling
its appearance at the Respondent’s Office in Baltimore City. (6) Subpoena
issued to opposing counsel located in Washington County compelling his
appearance at the Respondent’s office in Baltimore City where the case at
issue was pending in Washington County. (7) Subpoena to an elderly fact
witness who resided in Kent County to appear for deposition in the
Respondent’s office in Baltimore City where the case was pending in
Baltimore County.
In the instances where the venue was challenged by opposing counsel,
the Respondent rather than withdraw the subpoenas and note them in the
appropriate venue, clung to his position and threatened sanctions or court
intervention if the deponent failed to appear.
In the section entitled “Additional Abuses of Subpoena Power”, Judge Doory
identified episodes in Mixter, Alemu and Railey as examples in which Respondent abused
his authority as an officer of the court by issuing subpoenas in order to harass and intimidate
witnesses and opposing counsel. Judge Doory found that Mixter, in his own case, had
issued subpoenas to ten witnesses, compelling appearance and the production of
documents, without having provided sufficient time for such production, simply to harass
the recipients:
In the Mixter case, the Respondent issued numerous subpoenas aimed
solely at harassing witnesses (most of whom were Respondent’s opposing
counsel in other non-related cases) and the defendant’s. On March 6, 2012,
the Respondent issued subpoenas to nine “custodians of records” for
attorneys and one doctor: Irwin E. Weiss, Esquire, Daniel Sussman, Esquire,
John Kazmierczak, Esquire, Steven Shechtel, Esquire, Howard Simcox,
Esquire, Lee J. Eidleberg, Esquire, Henry Greenberg, Esquire, Stephen A.
Markey, III, Esquire, Michael Conte, M.D. The subpoenas directed the
witnesses to “appear and produce all documents or other forms of
communications, including electronic either received from or forwarded to
James Farmer or James E. Farmer, P.A. or Charles Bowie or Alison Heurich
or Charles E. Farmer regarding Mark T. Mixter at any time whatsoever.”
Despite the fact that subpoenas issued from the Circuit Court for Baltimore
33
City have an option to allow the witnesses to “produce documents and or
objects only”, the Respondent instructed the witnesses to “personally appear
and produce documents or objects.” The subpoenas were accompanied by a
cover letter that provided: “If you would please forward copies of all
documents requested by the date of the deposition it will not be necessary for
you to testify or appear. Please not that we are not authorizing the use of a
record copy service. Additionally, we will not pay for any such services
without written approval.”
All of the subpoenas were issued on March 6, 2012 and required
appearance on April 6, 2012. None of the subpoenas were timely served to
allow the witnesses the requisite 30 days to produce documents. Many of
the nine witnesses filed, or retained counsel to file motions to quash and/or
limit the subpoenas, all of which were granted by the court.
In Mixter’s own case, Judge Doory recounted, among others, the events surrounding
the subpoena directed to an attorney named Daniel Sussman, one of the witnesses in the
suit. Mr. Sussman had filed a motion to quash Mixter’s deposition subpoena and
production of documents. Judge Doory found that Mixter had misrepresented in his
response to the motion the date upon which Mr. Sussman had been served, among other
things:
Mr. Sussman, upon receipt of the deficient subpoena, wrote to the
Respondent. By letter dated March 12, 2012, Mr. Sussman stated that he had
“searched the file of Daniel L. Sussman and there are no records relevant to
this matter.” Mr. Sussman further informed the Respondent that he would
not be appearing on the date of deposition. On April 22, 2012, Mr. Sussman
was served with a subpoena compelling his appearance at deposition on May
3, 2012 and directing him to produce documents. On May 1, 2012, Mr.
Sussman, through counsel, filed a Motion to Quash. In response, the
Respondent filed a response to Mr. Sussman’s motion, a motion to compel
Mr. Sussman’s appearance at deposition, and a reply to Mr. Sussman’s
response thereto in which he misrepresented, among other things, the date
that Mr. Sussman was served.
Finally, Judge Doory observed that Mixter also had subpoenaed the driving record
of James Farmer, a Mixter defendant, and, in response to Mr. Farmer’s motion for a
34
protective order as to his driving record, Mixter asserted “a multitude of disingenuous
arguments”, including “that the driving record may reveal impeachable evidence including
criminal convictions for driving-related offenses and alcohol related charges or problems
that ‘may form the basis for evidence of habit/routine practice under Maryland Rule 5-406’
or ‘a common pattern of ongoing alcohol-related problems and/or alcohol-related criminal
convictions.’” The Circuit Court for Baltimore City granted a protective order on the basis
that Mr. Farmer’s “driving record had absolutely nothing to do with the pending claim for
defamation and that the subpoena was aimed solely at harassing the defendant”:
On June 14, 2012, the Respondent issued a subpoena and notice of deposition
to the Custodian of Records for the Motor Vehicle Administration requesting
“the entire driving record, including but not limited to any and all records,
including, but not limited to, license tag applications and associated records,
registration applications and associated records, driving records,
handicapped tag applications and associated records, and any other records
regarding James Farmer . . . from the date of issue of any driver’s license.”
Mr. Farmer, through counsel, filed a motion for protective order on the basis
that Mr. Farmer’s driving record had absolutely nothing to do with the
pending claim for defamation and that the subpoena was aimed solely at
harassing the defendant. In response, the Respondent pursued a multitude of
disingenuous arguments: that the driving record may reveal impeachable
evidence including criminal convictions for driving-related offenses and
alcohol related charges or problems that “may form the basis for evidence of
habit/routine practice under Maryland Rule 5-406” or “a common pattern of
ongoing alcohol-related problems and/or alcohol-related criminal
convictions.” By Order dated August 7, 2012, Mr. Farmer’s Motion for
Protective Order was granted.
Judge Doory found that Respondent also had misused subpoenas in Railey by
attempting to compel the defendants’ attorney to produce documents unrelated to the
litigation at issue:
In Railey the Respondent propounded written discovery on the
defendants and requested production of documents related to other civil
35
matters in which the defendants had been involved. The unrelated matters
involved garnishment of wages of some of the defendant’s employees and
did not implicate the defendant in any fault in those matters whatsoever.
Counsel for the defendants invited the Respondent to defense counsel's office
to review all of the files requested. Despite the offer, the Respondent issued
a notice of deposition to defense counsel to appear in Baltimore City for
deposition. The defendants were forced to file a motion for protective order
and the court found, “[o]f course it is improper to compel a deposition of a
party's counsel, especially in another county.”
Finally, in Alemu, Judge Doory found that Mixter had abused the subpoena authority
by attempting to secure the exhibits from Mixter’s client’s deposition, for which he was
sanctioned:
In Alemu, the Respondent issued a Maryland subpoena to the
custodian of records of his opposing counsel located in the District of
Columbia. The subpoena requested the custodian appear for a deposition and
produce the exhibits from the Respondent’s client’s deposition. Plaintiff’s
counsel filed a Motion for Protective Order and requested sanctions. A
hearing was held on March 8, 2010 during which the court found the
Respondent abused his authority to issue subpoenas and issued sanctions in
the amount of $250. The Respondent refused to pay the sanctions ordered
and as a result, the Plaintiff filed a Motion for Sanctions. In response to the
Motion, the Respondent argued that he “intends to appeal” the order issuing
sanctions in the amount of $250. An order was negotiated whereby the
Respondent paid the $250 but did not waive his right to appeal.
Judge Doory, in the section of his findings of fact entitled “Frivolous Motions
Directed at Opposing Party”, found forty-two instances, listed in Appendix 5, in which
Mixter had filed frivolous motions, “because the Respondent either failed to make any
good faith efforts to resolve the discovery disputes or the filings were filed prematurely or
otherwise do not comply with the Maryland Rules.”
Judge Doory put forth one example of Mixter having filed frivolous motions to
compel and for sanctions directed at the opposing party in Koontz. Judge Doory noted that
Respondent had propounded discovery on the Koontz plaintiffs for their medical and
financial information, for which the plaintiffs had requested that Mixter agree to a
36
confidentiality agreement in order to limit disclosure. Mixter, according to Judge Doory,
moved to compel production of the medical and financial information, rather than enter
into a confidentiality agreement. Judge Doory found that a judge in the Circuit Court for
Anne Arundel County denied Mixter’s motion but ordered that the plaintiffs provide the
requested discovery, once a confidentiality agreement was executed. Mixter then,
according to Judge Doory, moved for the circuit court to reconsider its denial of his motion
to compel; then, before the circuit court had ruled on the motion, he executed a
confidentiality agreement and demanded production of the medical and financial
information from the plaintiffs within five days. Judge Doory found that, once the five
days had elapsed, Respondent filed a motion to dismiss and/or for sanctions based upon
the plaintiffs’ failure to provide their medical and financial information:
The Respondent propounded discovery on the Plaintiffs, the discovery
requested sensitive medical and financial information. The Plaintiffs asked
the Respondent to enter into a confidentiality agreement which would not in
any way preclude his receipt of discoverable information but rather limit the
disclosure or redisclosure of sensitive information. The Respondent refused
to enter into a confidentiality agreement and the Plaintiffs filed a Motion for
Protective Order on August 11, 2009. On August 25, 2009, the Respondent
filed a motion to compel discovery. By Order entered September 18, 2009,
the court denied the Respondent’s motion to compel and ordered that the
Plaintiffs “shall provide the requested discovery upon execution of an
appropriate protective order to maintain confidentiality of medical and
financial records.” On September 28, 2009, the Respondent filed a motion
for reconsideration of the order. On October 8, 2009, the Respondent
forwarded an executed Stipulation regarding confidentiality to the Plaintiffs
and demanded that the outstanding discovery be provided “within 5 business
days.” Less than two weeks later, the instant motion [to dismiss and/or for
sanctions for Plaintiffs’ complete failure to provide discovery] was filed. In
addition to being filed prematurely, without allowing the Plaintiffs time to
produce the requested information, the motion was filed without any good
faith efforts to resolve the discovery dispute and the relief sought, dismissal
and sanctions, is not contemplated under the Maryland Rules. Where there
37
has been a response to discovery, albeit incomplete, the only remedy is a
motion for an order compelling discovery. See Rule 2-432. In the Motion,
the Respondent states that the Plaintiffs “refuse to produce the discovery.”
There is no evidence that, once the confidentiality agreement was signed, the
Plaintiffs refused to produce the information and documentation requested.
In the “False Certifications” Section, Judge Doory found fifty-three instances in
which “the Respondent falsely certified to the court that good faith efforts to resolve
discovery disputes had been made,” listed in Appendix 6. According to Judge Doory,
Mixter’s certifications contained misrepresentations which were intended to mislead the
courts into believing that he had engaged in good faith attempts to resolve discovery
disputes; in fact, the exhibits Mixter had attached to the certificates were the original letters
accompanying the subpoenas sent before any discovery dispute could have existed:
In each motion, in an attempt to mislead the court, the Respondent refers the
court to attached exhibits “evidencing” his attempts to resolve the alleged
discovery dispute. The exhibits attached to the motion are all the original
cover letters accompanying the subpoena and/or the 30-day assurance letters,
both of which were sent before any “discovery dispute” could have existed.
The Court finds that the Respondent knowingly and intentionally falsely
certified that he had complied with Rule 2-431. The Respondent testified at
trial that in addition to the cover letters being sent, a phone call was always
made in an attempt to resolve the discovery dispute before any motion was
filed. No documentation was provided to support this claim and the Court
finds the Respondent's testimony not credible. Rule 2-431 specifically states
that the certificate “shall include the date, time, and circumstances of each
discussion or attempted discussion.” (emphasis added). The Respondent
failed to produce any evidence of the alleged phone calls: he did not offer
any telephone message slips, memorandum to the file or phone records
evidencing any of the purported phone calls that were “always” made prior
to filing a motion.
In the Section entitled “Misrepresentations by Omission”, Judge Doory observed
that Mixter had intentionally omitted from the twelve motions listed in Appendix 7
responses from the adverse parties or the witnesses, in an attempt to advance his position.
38
In the Maryland Rule 2-431 certificates, for example:
As discussed above, Rule 2-431 requires the Respondent to provide
the date, time and circumstances of each discussion or attempted discussion
had in an effort to resolve a discovery dispute prior to filing a motion. The
Respondent routinely omitted correspondence from the other party or the
witnesses related to the discovery dispute from his [Rule 2-431] certificate.
The Court finds that the Respondent’s omission of material evidence was
intentional and in an effort to advance his position. Each of the motions filed
by the Respondent and itemized on the attached Appendix Seven (7),
constitutes a misrepresentation by omission to the court as the Respondent
knowingly and intentionally failed to include correspondence relating to the
discovery dispute to the court for consideration.
In the ninth category of his findings of fact, entitled “Misrepresentations and
Disregard for Court Orders and Directives”, Judge Doory found that in the Alemu, Byrne-
Egan, Canby, Chineme, Davis, Fuselier, Green, Johnson, Keener, Koontz, Mixter, Pearson
and Presbury cases that Mixter had, in bad faith and without substantial justification,
knowingly and intentionally made misrepresentations as to the contents of court orders or
had disregarded court orders.
In Byrne-Egan, Judge Doory found that Mixter had knowingly and intentionally
misrepresented to White Marsh Psychiatric Associates that no objection had been made to
his subpoena for the third-party defendant’s mental health records and failed to provide the
protective order that had been entered related to those same records:
On December 2, 2011, the Respondent filed a Motion to Compel
directed at the third-party defendant/counter-plaintiff in Byrne-Egan based
on her failure to provide answers to interrogatories and responses to requests
for production of documents. On December 19, 2011, the third-party
defendant filed a response to the motion stating: “This case was removed to
Federal Court by Empire after it filed a Third Party Complaint against Seay
in State Court and she filed a counterclaim. Seay avers that this court has no
jurisdiction in this matter and she has filed a Motion to Remand to State Court
which has yet to be ruled upon. In any event, Seay intends to respond to
39
Empire's discovery requests within ten days.” On December 20, 2011, the
Respondent wrote a letter to the Honorable J. Frederick Motz and stated,
“The defendant's motion to compel discovery from the plaintiff . . . was filed
on December 2, 2011. A response was filed yesterday and admits to the
plaintiff’s failure to timely answer my client's discovery requests. Therefore,
please provide counsel with a ruling on that motion at your earliest
convenience.” The court finds that the Respondent knowingly and
intentionally mischaracterized and misrepresented the content of the
opposition.
On February 21, 2012, Ms. Seay sought a protective order to prevent
the Respondent from obtaining her psychiatric records. On May 5, 2012, the
Respondent filed his opposition. On May 16, 2012, the Respondent sent a
letter to White Marsh Psychiatric Associates, knowingly and intentionally
misrepresenting that no objection had been made to the subpoena issued and
requested Ms. Seay’s mental health records be provided. On May 18, 2012,
Judge C. Philip Nichols, Jr., granted Ms. Seay’s motion and ordered that her
psychological or mental health records, if any, are not to be produced. In
complete disregard for Judge Nichols’ order, on July 13, 2012, the
Respondent filed a motion to compel White Marsh Psychiatric Associates to
produce Ms. Seay's treatment records. Despite withdrawing the motion to
compel, Judge Nichols entered a Show Cause Order for Contempt directed
at the Respondent. In response, the Respondent knowingly and purposefully
skewed the facts of the case and his actions. While he admits that the
subpoena directed to White Marsh was issued on April 16, 2012 before the
protective order was granted, he omits from his response that the motion for
a protective order was filed on February 21, 2012, and that while it was
pending he knowingly and intentionally misrepresented to White Marsh on
May 16, 2012 that no objection to the subpoena had been made.
In Chineme, Judge Doory found that Mixter had facilitated the alteration and
destruction of important evidence by his client. Judge Doory explained that when Mixter
represented the defendant landlord in a mold case, the plaintiff’s expert had attempted to
inspect the premises, but Mixter blocked the expert from doing so. The plaintiff, according
to Judge Doory, then filed a motion to compel, which was granted by the Circuit Court for
Baltimore City, providing that the plaintiff’s expert was to be allowed on the premises to
conduct his testing. Judge Doory found, however, that, when the expert returned to the
40
property, the items the expert had previously intended to sample had been removed, thereby
thwarting any testing, for which Judge Doory found that Mixter had facilitated his client’s
alteration and destruction of evidence:
In Chineme, the Respondent represented the defendant, landlord
Chineme in a mold case. The Plaintiff hired an expert, Robert K. Simon,
Ph.D., an industrial hygienist-chemist to inspect the property on January 8,
2008. There was prior bad history between Respondent and Dr. Simon based
on experience in Garnett.
Prior to January 8, 2008, the third scheduled attempt to inspect the
property, Dr. Simon received a subpoena to be deposed on January 7, 2008.
Respondent claims it was only a records deposition but it still predates Dr.
Simon’s inspection, the commencement of his participation in this case.
Dr. Simon went to 3706 Hillsdale Ave. and met plaintiff Shaneise
Smith, Respondent and the Defendant on January 8, 2008. Dr. Simon
testified that Respondent impaired his ability to inspect the property.
Respondent allowed Dr. Simon to photograph some areas, take air samples
and to do swipe testing. He did not allow access to the basement door area.
Respondent did not allow Dr. Simon to do any “destructive testing.” Dr.
Simon, in his expert opinion, felt it necessary to take carpet samples under a
formerly leaking radiator; to take a section of wallboard inside a closet; to
take a two-inch by two-inch section of water damaged 1950’s knotty pine
paneling in the basement. Respondent testified that he was not at liberty to
allow Dr. Simon to “tear apart” the property for testing. Respondent, in his
experience felt this testing was unnecessary.
Later in the day on January 8, 2008, Plaintiff’s attorney Gary F. Stern
filed a motion to compel to allow Dr. Simon access to do this testing. He
argues that the requested inspection, testing and sampling of said property
would not be burdensome to the Defendant, intrusive or outside the ambit
contemplated by the rules of discovery and Plaintiff would be prejudiced in
presenting their case without the expert’s report. Further Stern argues that
any delay in allowing Plaintiff’s expert to gather samples for the purpose of
testing would allow the Defendant to alter, destroy or otherwise conceal
critical evidence in this case.
On January 28, 2008, Respondent filed a response. In his response,
Respondent offers: “The Plaintiff also argues that delaying this process will
prejudice the plaintiff’s case by allowing the defendant to alter, destroy or
otherwise conceal critical evidence. That argument is rather disingenuous
given that the plaintiff has not resided at the defendant’s premises for almost
two years, and knew that she was going to assert this claim when she resided
there or shortly thereafter.”
41
After a great amount of wrangling over the setting of depositions and
sharing of discovery documents; after Dr. Simon hired his own attorney,
Steve Stine, Esq., to represent him in dealings with Respondent, on June 23,
2008, the Court granted a Motion to Compel Entry Upon the Premises. In
June of 2008, Dr. Simon returned to the property to find that the carpet had
been replaced and the knotty pine paneling had been replaced by painted
wallboard. Dr. Simon’s inspection had been thwarted. Respondent testified
that at no time did he authorize his client to make alterations. It should be
noted that this client was not called to testify and no evidence was presented
to support the contention that the alterations were part of a beautification plan
by the landlord on his own initiative.
The case dragged on through a series of embattled depositions. It was
settled in November of 2008. In late December Dr. Simon was still hoping
to be paid by Respondent for his depositions after a prolonged fee dispute.
The Court finds the testimony of Dr. Simon on these points to be more
credible than the testimony of the Respondent. The Court finds that without
legitimate justification, Respondent facilitated his client in the alteration and
destruction of important evidence.
Judge Doory found that Mixter had also made a knowing misrepresentation to the
Court of Special Appeals in Keener. Judge Doory observed that the Circuit Court for
Charles County, after a hearing, had found Mixter in contempt for failure to comply with
a previous court order. After a subsequent hearing, Judge Doory continued, the Circuit
Court had awarded attorney’s fees to Mixter’s opposition. According to Judge Doory,
Mixter appealed both of the Circuit Court’s orders to the Court of Special Appeals,
asserting that the rulings had been made without a hearing. When apprised of this
misrepresentation, Judge Doory found that Mixter had filed an errata sheet alleging that
the misrepresentation was a “typographical error”; Judge Doory found that the error was
not “typographical”, because it provided the basis for an argument and, therefore, the errata
sheet was itself a misrepresentation to the Court of Special Appeals:
In Keener, the Plaintiff filed a motion to compel based on the Respondent’s
failure to adequately respond to requests for production of documents. Over
42
the Respondent’s opposition, the court ordered the Respondent to produce
“all documents requested by the Plaintiff, less those to which a claim of
privilege is attached, at 3:00 p.m. on December 14, 2010 or 9:00 a.m. on
December 16, 2010 at the offices of counsel for the Plaintiff.” On December
15, 2010, the Respondent, in defiance of the court order, asserted that by
tendering medical records obtained through records depositions over the past
year, he did not need to produce any documents. The Plaintiff filed a Motion
for Finding of Contempt and on January 20, 2011, the court issued a show
cause order directed at the Respondent. After being fully briefed, a hearing
was held on March 22, 2011. Following the hearing, the Honorable Helen
Ina Harrington found the Respondent in contempt for failure to comply with
the court’s order of December 8, 2010.
Following the finding of contempt, the Plaintiff requested they be paid
their attorneys’ fees for filing the various motions involving the contempt
issue. The request was denied. The Plaintiffs filed a motion for
reconsideration of the request for attorneys’ fees and, on November 20, 2011
a hearing was held on the motion for reconsideration. After the hearing, the
court awarded attorney’s fees against the Respondent personally in the
amount of $3,287.00.
The Respondent appealed both the finding of contempt and the award
of attorneys’ fees to the Court of Special Appeals. In his brief he stated:
“[o]n March 22, 2011, without a hearing, the Circuit Court for Charles
County granted the Plaintiff’s Motion for Contempt, finding that defense
counsel was in contempt ‘for failure to comply with the Court’s Order of
December 8, 2010.’” The statement was a misrepresentation. The
Respondent repeated the misrepresentation a second time in his brief, arguing
to the Court of Appeals: “on March 22, 2011, the Circuit Court for Charles
County inexplicably (and without a hearing) granted the Plaintiff’s Motion
for Contempt, finding the defense counsel was in contempt ‘for failure to
comply with the Court’s Order of December 8, 2010.’” In support of his
argument that an order of contempt was improper the Respondent cited
Maryland Rule 15-206(c)(2) which states “Unless the court finds that a
petition for contempt is frivolous on its face, the court shall enter an order
providing for (i) a prehearing conference, or (ii) a hearing, or (iii) both. The
scheduled hearing date shall allow a reasonable time for the preparation of a
defense and may not be less than 20 days after the prehearing conference.”
The Respondent then argues that “the trial court erred in failing to set the
above-captioned matter in for a hearing on the plaintiff’s motion for
contempt.”
When the Plaintiff brought the misrepresentation to the Court of
Special Appeals, the Respondent, rather than withdraw the argument and
acknowledge that he had misrepresented the procedural posture of the case
to the Court of Special Appeals, filed an errata sheet in which he alleges the
43
misrepresentation on page 10 of his brief was a “typographical error”. The
Court finds that the errata sheet was a misrepresentation to the Court of
Special Appeals – the error was not typographical as it provided the basis for
an argument.
In Koontz, Judge Doory observed that Respondent had wrongfully represented to
health care providers that the opposing party had not objected to disclosure of their medical
records, in an effort to obtain confidential medical records. The parties in Koontz,
according to Judge Doory, had, in fact, stipulated to the entry of a Protective Order to
maintain the confidentiality of the plaintiffs’ medical and financial records. Judge Doory
found that Mixter violated the Order when he filed a Motion for Sanctions and/or Motion
to Compel Supplemental Discovery to which he attached some of the confidential records
at issue. Judge Doory noted that Mixter, after the plaintiffs had filed a Motion for
Protective Order, issued subpoenas to nineteen of the plaintiffs’ health care providers
asserting that the plaintiffs had not objected to the disclosure of their medical information:
At the request of the Plaintiffs in Koontz, the court ordered that, before
the Plaintiff was required to produce sensitive financial and medical
information to the Respondent, the parties execute “an appropriate protective
order to maintain confidentiality of medical and financial records. Such
order will provide that the information may not be viewed or disclosed except
to parties, counsel and their expert witnesses.” On October 8, 2009, the
Respondent forwarded an executed Stipulation and Protective Order
regarding confidentiality to the Plaintiffs. The Stipulation included, inter
alia, that “any document (including discovery responses and transcripts of
testimony) containing confidential or proprietary information shall be
stamped with the legend “CONFIDENTIAL” or otherwise identified by the
party disclosing such information as confidential information, and the
information contained therein shall not be disclosed except as provided in
paragraph 3 above.” Paragraph Three (3) provided, that documents marked
“Confidential” shall not be disclosed to anyone other than counsel, parties,
court reporters and transcribers, expert witnesses and the court.
On December 17, 2009, the Respondent filed a Motion for Sanctions
and/or Motion to Compel Supplemental Discovery and, in violation of the
44
protective order, attached thereto, the Plaintiffs’ answers to interrogatories
that had been marked “Confidential.” On May 12, 2010, the Respondent
filed an Opposition to Plaintiffs Motion for Protective Order and attached
thereto the Plaintiffs medical reports.
On or about April 21, 2010, the Respondent issued subpoenas to
nineteen (19) of Plaintiff’s healthcare providers in Koontz. On May 5, 2010,
the Plaintiffs filed a motion for protective order to quash and/or limit the
subpoenas. On May 21, 2010, while the motion for protective order was
pending, the Respondent sent 30-assurance letters to the healthcare providers
subject to the motion for protective order. In the letters, the Respondent
misrepresented that the Plaintiff had “not objected to the disclosure of the
requested medical records” and asked that the records be forwarded at the
earliest convenience. The court finds that the Respondent’s statements to the
healthcare providers were intentionally false.
On July 1, 2010 and July 16, 2010, while the motion for protective
order was still pending, the Respondent filed two Motions to Compel
directed at records custodians subject to the protective order. The Motion to
Compel filed July 16, 2010 was sent to the custodian of records with a cover
letter from the Respondent which stated: “Enclosed is a motion to compel
discovery which we are filing in the case but which we would withdraw if
we receive the records within five days. Furthermore, if you received a letter
from opposing counsel (Ober, Kaler, Grimes & Shiver) indicating that there
was a protective order issued in this case, it was false. In fact, not only was
a protective order not obtained, but none was sought.” The Court finds the
Respondent’s statements in the letters of July 16, 2010 were intentionally
false.
Judge Doory found that, in Pearson, Respondent had “in bad faith” made “an
intentional effort to obstruct the defendants’ access to information and to circumvent [a]
court order”. According to Judge Doory, a judge of the Circuit Court for Prince George’s
County had granted an order permitting the defendants to speak with the plaintiff’s health
care providers without the presence of opposing counsel. Judge Doory found that Mixter,
subsequently, wrote letters to the nine health care providers admonishing them not to speak
to the defense attorneys, in an attempt to circumvent the court order and obstruct the
defense’s access to evidence:
45
In Pearson, the Respondent represented the Plaintiffs, a husband and
wife, in a medical malpractice claim. The Defendants sought a court order
to allow them to discuss the Plaintiff’s healthcare with her healthcare
providers, without the presence of opposing counsel. The Defendants listed
the nine healthcare providers that they wanted to interview. By Order dated
May 18, 2012, the court granted the defendants the relief they sought and
ordered “that the attorneys for the parties to this lawsuit are permitted to
engage in ex parte discussions with [the nine healthcare providers
identified].” On May 21, 2012, the Respondent wrote to the nine healthcare
providers and stated:
“Please be advised that I represent your patient, Gina Pearson
in the above-captioned case. This case alleges medical
malpractice on the parts of Dr. Lyles and Dr. Barson and their
treatment of Ms. Pearson. Today, Judge Geter of the Circuit
Court for Prince George’s County signed the enclosed order
permitting the lawyers representing [the defendants] to contact
you directly to discuss your treatment of Ms. Pearson. The
order does not compel or mandate that you speak to these
lawyers. Furthermore, neither Ms. Pearson or myself wish to
have you speak to these lawyers unless we are present.
Therefore, it would be appreciated that in the event you are
contacted by a representative of the two law firms that
represent [the defendants], that you politely refuse to discuss
Ms. Pearson’s treatment with that individual . . . . We would
also urge you to make sure that if you are contacted by anyone
who wants to speak to you about your treatment of Ms. Pearson
and they are from any law firm other than mine, that you
simply indicate that you are not willing to talk to them
informally.”
The defendants filed a motion for sanctions and the Respondent filed an
opposition. A hearing was held on August 17, 2012 at which the Honorable
Melanie Shaw Geter found that while the Respondent’s letters to the
healthcare providers “thwarts the spirit of the order” they did not directly
violate the order. This Court finds the Respondent’s May 21, 2012 letters
were sent, in bad faith, in an intentional effort to obstruct the defendants’
access to information and to circumvent the court order.
Judge Doory also determined that Mixter had maintained the Railey litigation “in
bad faith and without substantial justification. Not only did the Respondent bring and
pursue the case in bad faith but he engaged in abusive, harassing and frivolous discovery
46
practices throughout the entire case”. Judge Doory found that Respondent had represented
Nancy Railey, plaintiff, before the Circuit Court for Washington County against, inter alia,
a group known as the “Cochran Defendants.” According to Judge Doory, after Ms.
Railey’s deposition, it became clear that there was no legal basis for Ms. Railey’s claims.
Judge Doory observed that, nevertheless, Mixter had frivolously and in bad faith continued
the action against the Cochran Defendants and had refused to dismiss a named defendant
unless the defense counsel drafted the line of dismissal:
In Railey the Respondent, on behalf of the plaintiff Nancy Railey,
filed suit against a number of Defendants alleged to have been involved in
the Plaintiffs’ purchase of nursery stock at an auction. Included among the
defendants were the auction company, the auctioneer and an employee of the
company, the “Cochran Defendants.” The Plaintiffs, through the
Respondent, sued the Cochran Defendants for fraud, breach of contract,
breach of fiduciary duty and assault. Summary judgment was eventually
granted to all defendants on all grounds. During discovery the Cochran
Defendants deposed Ms. Railey whose testimony undermined the factual
basis for all of the counts against the Cochran Defendants. Despite the
“devastating” deposition, the Respondent continued to pursue the case in bad
faith and without substantial justification. Not only did the Respondent bring
and pursue the case in bad faith but he engaged in abusive, harassing and
frivolous discovery practices throughout the entire case.
Following Ms. Railey’s deposition in which she exonerated the
Cochran Defendants, the Respondent unilaterally noted the depositions of
ten non-party witnesses, six of whom were Cochran employees. The
deposition notices served no legitimate purpose and were aimed solely at
harassing the Cochran defendants.
Special note should be made of the Defendant Leo Cline. He was a
named party among the “Cochran Defendants” because the Plaintiff
represented by the Respondent believed he had a managerial position at the
auction. It was learned during discovery that he was primarily involved in
manually setting up the auction site. On April 7, 2011 [defendants’ attorney]
Alfred Scanlon urged respondent to dismiss Leo Cline from the case based
upon the unquestioned testimony of everyone deposed that it would be
impossible for him to be involved in any of Respondent’s theories of liability.
Respondent replied that he would be willing to dismiss Mr. Cline, without
prejudice, only if Mr. Scanlon would prepare the line of dismissal. Mr.
47
Scanlon quite credibly described this as a “tit for tat” attitude. The
Respondent never filed the Line of Dismissal.
At an August 24, 2011 motions hearing, Respondent refused to even
orally dismiss this meritless claim. Mr. Cline remained an active defendant
until the granting of summary judgment on September 8, 2011.
During the hearings in the instant case, Judge Doory also had received “substantial
testimony . . . with regards to the [misleading] use of [a trial court’s action in a case titled]
Greater Washington Orthopaedic Group, PA v. Varner and Miles & Stockbridge (Case
No. 88899)” (Hereinafter “Varner”). In Varner, according to Judge Doory, “on April 9,
1993, the Honorable Peter J. Messitte, then of the Circuit Court for Montgomery County,
Maryland, issued a ‘Revised Order’” in which Judge Messitte explained “that the treating
physician for a plaintiff cannot charge a fee for deposition or trial that is greater than the
fee charged to the physician’s usual and customary office practice.” Judge Doory found
that Mixter routinely mailed to expert witnesses for the opposing side a copy of Judge
Messitte’s interlocutory order in Varner along with a cover letter stating, “I have also
enclosed a copy of the decision in the case of Greater Washington Orthopedic Group, P.A.
v. Varner, et al., which sets forth the method of payment for your time spent testifying.”
At the hearing, Judge Doory received testimony from Mixter’s expert witness, Alan
Feld, as an expert in the field of civil litigation, who “testified that the Varner opinion
provides a proper guideline to be used in determining what a reasonable fee would be for
an expert’s time.” Judge Doory, despite Mr. Feld’s testimony, found that “Respondent’s
statement to the non-lawyer witnesses that the Varner opinion governs ‘the method of
48
payment’ is misleading”:43
Respondent’s statement to the non-lawyer witness that the Varner opinion
governs “the method of payment” is misleading. While the Varner opinion
may provide some guidance to a court in determining what a reasonable fee
is pursuant to Maryland Rule 2-402(g)(3), it is of questionable value to send
to a non-lawyer witness of the opponent. The Honorable Judge Lawrence P.
Fletcher-Hill, for the Circuit Court for Baltimore City, in denying one of
Respondent’s motions to hold an expert in contempt and to set the expert’s
fee, opined:
As discussed, Defendants rely heavily on the Revised Order in
Greater Washington Orthopaedic Group, P.A. v. Varner. The
very short answer to Defendants’ reliance on this order as
controlling in this case is that it is a non-binding order of
another Circuit Court issued almost twenty years ago. It is
persuasive authority at most. In addition, it was limited by its
terms to treating physicians who are called upon to testify in
that capacity. More important, it pre-dates Kilsheimer, which
is binding on this Court and the revisions to what is now
Maryland Rule 2-402(g)(3).
***
The Respondent’s practice of including the Varner opinion in his
correspondence with expert witnesses raises the question of motive.
Respondent claims that this is done to control excess fees and save money
for his clients, although considering filing and litigation costs no net savings
were shown. Petitioner contends that this is primarily a ploy by Respondent
to increase his billable hours. The Court cannot accept either theory.
The Court finds that Respondent uses the Varner opinion as part of an
opening salvo to indicate that depositions and discovery involving expert
witnesses will be conducted on the terms he dictates. It is an attempt by
Respondent to upset expert witnesses and create fee and discovery disputes
with an aim to take an unfair advantage for his clients by having witnesses
fail to cooperate and potentially be excluded from trial. Including the Varner
opinion in opening correspondence is an announcement to opposition that,
as Lee Salteberg, Esq., testified, it’s time to “buckle up and hold on.”
In the twelfth section of the findings of fact entitled “Motions for Contempt:
43
Judge Doory also observed that “Respondent’s reliance on the Varner opinion varies
with his client’s interests”, and would take positions in direct contradiction to Varner in an
attempt to raise experts’ fees for depositions of his own experts.
49
Harassment and Intimidation”, Judge Doory found that Mixter would routinely file motions
to hold medical professionals, who had been noted as expert witnesses by the other side, in
contempt, based upon their alleged failure to appear for their deposition. The motions,
however, omitted the fact that there were disputes as to payment of the experts:
The Respondent routinely filed motions to hold expert witnesses and lay
witnesses in contempt of court based on their alleged failure to appear for
deposition in disregard of a validly issued and properly served subpoena.
The record reveals the inescapable truth: all of the motions as they related to
medical professionals are based on an alleged dispute as to the method and
amount the professional will be paid for their deposition testimony. Rather
than file an appropriate motion with the court – a motion to set the experts’
fees – the Respondent filed to hold the doctors in contempt and within those
motions made substantial misrepresentations to the court. The Court finds
that this practice is disingenuous and most assuredly aimed at harassing and
intimidating opposing parties and expert witnesses by threatening an order
of contempt in an attempt to force the expert to appear at deposition on terms,
often unreasonable, set by the Respondent or be excluded from testifying at
trial. Despite the duplicative nature of many of the motions that are discussed
below, a review of each is important to understand how the Respondent
casually made misrepresentations to the court that potentially have real and
lasting impact on non-parties. All of the motions related to all of the
witnesses are based on material misrepresentations: that the witnesses were
properly served with a valid subpoena and failed to appear for deposition.
Judge Doory determined that the motions within the Petitioner’s exhibits related to
Joshua Aaron, M.D., Ian M. Weiner, M.D., Douglas M. Shepard, M.D., Clifford T.
Solomon, M.D., Mark Danziger, M.D., William Tham, M.D., Kevin Lurie, M.D., Curtis
Colbert, Thomas M. Weschler, Richard Thompson, Paul R. Cooper, Robert H. Hillman,
Douglas Barnes, D.D.S., Shaheer Yousaf, M.D., Mathew Mulqueen and Victor Wowk,
M.D., were all “based on material misrepresentations: that the witnesses were properly
served with a valid subpoena and failed to appear for deposition” and were “most assuredly
aimed at harassing and intimidating opposing parties and expert witnesses”.
50
As an example, the circumstances in which Dr. Shepard was involved are typical of
the entire group of experts. Judge Doory found that Mixter had noted the deposition of Dr.
Shepard and had included the Varner opinion with the notice of deposition. When Dr.
Shepard’s employer requested advance payment of his fees, Judge Doory noted that Mixter
cancelled the deposition, refused to pay Dr. Shepard’s fee and called Dr. Shepard to
threaten contempt if Dr. Shepard did not appear at the deposition. Judge Doory found that
Mixter subsequently filed a Motion to Hold Dr. Shepard in Contempt in which he
misrepresented to the court that Dr. Shepard had been properly served; the circuit court,
subsequently, in reliance on Mixter’s misrepresentation, issued a Show Cause Order
directed at Dr. Shepard that Mixter was to serve on the doctor by October 10, 2009. Judge
Doory found that Mixter, then, on October 19, 2009, filed a false Affidavit of Service which
misrepresented that Dr. Shepard had been served on October 6, 2009:
On June 17, 2009, Respondent noted the deposition of Douglas M.
Shepard M.D., the Plaintiff’s treating physician, for August 7, 2009, in Gnip.
Enclosed with the subpoena and notice of deposition was a copy of the
Varner opinion. MedStar Health, Dr. Shepard’s employer, requested Dr.
Shepard’s fees be pre-paid in the amount of $750.00 per hour. On August 6,
2009, Respondent cancelled the deposition and refused to pay Dr. Shepard’s
fee. On or about August 6, 2009, the Respondent called Dr. Shepard, used
colorful language, told him that he would not pay his fee and threatened to
hold him in contempt of court if he did not appear at deposition.
On or about September 25, 2009, the Respondent filed a Motion to
Exclude and/or Motion to Hold in Contempt Douglas M. Shepard, M.D. In
the motion the Respondent misrepresents to the court that Dr. Shepard “was
served on June 17, 2009” and directs the court to the attached green card.
The green card is signed, not by Dr. Shepard but by “N. Flavers.” On
September 30, 2009, in reliance on the Respondent’s misrepresentation, the
court issued a Show Cause directed at Dr. Shepard. The Show Cause Order
required Dr. Shepard be served on or before October 10, 2009. On October
19, 2009, the Respondent filed an Affidavit of Service in which he falsely
certified that the Show Cause Order was served on Dr. Shepard “on or about
51
October 6, 2009 by evidence of the signature on the return receipt attached
to this affidavit as Exhibit ‘A’”. The return receipt attached shows that the
certified mail was not sent restricted delivery as required by Rule 2-121 and
was not signed for by Dr. Shepard. On October 19, 2009, the case settled.
On October 20, 2009, Dr. Shepard’s Attorney, Shannon M. Marshall, Esquire
filed Non-Party Douglas Shepard, M.D.’s Response to Defendant’s Motion
to Hold Dr. Shepard in Contempt.
III. Judge Doory’s Conclusions of Law
After delineating these comprehensive findings of fact, Judge Doory then
determined the following conclusions of law:
Rule 3.1. Meritorious Claims and Contentions.
The Court finds that each of the frivolous motions the Respondent
filed as discussed herein is a violation of Rule 3.1. Additionally the Court
finds that the Respondent’s bringing and pursing the Railey litigation violates
Rule 3.1. Failure to promptly dismiss the Defendant Leo Cline is particularly
egregious.
Rule 3.2. Expediting litigation.
The Court finds the Respondent’s pattern of practice as demonstrated
in the cases at issue herein violates Rule 3.2. Specifically, the Court finds
the Respondent’s filing of frivolous motions, requesting hearings on every
motion and opposition filed, generally acting in an obstructionist manner and
failing to cooperate with opposing counsel in the orderly taking of discovery
including exchanging written discovery and taking depositions, creating
protracted fee disputes with experts and causing confusion for opposing
parties, witnesses and the courts all knowingly and purposefully delays
litigation and cannot be said to be in the best interest of the client.
Rule 3.3. Candor Toward the Tribunal.
The Court finds that the Respondent routinely made false statements
of material fact to the courts in violation of Rule 3.3(a)(l) and (a)(4). In
addition to the specific misrepresentations to the court outlined in the section
entitled “Misrepresentations and Disregard for Court Orders and Directives,”
the Respondent routinely misrepresented that out-of-state witnesses were
subject to the jurisdiction of Maryland courts, valid subpoenas were issued
and properly served, dates of service, that he made good faith efforts to
52
resolve discovery disputes prior to filing motions and that opposing parties
or non-party witnesses had refused to respond to his efforts to resolve
discovery disputes.
Rule 3.4. Fairness to Opposing Party and Counsel.
The Court finds the Respondent violated Rule 3.4(a) by obstructing
Dr. Simon's access to evidence and thereby facilitating his client in the
destruction of evidence in the Chineme case. The Respondent and his client
were present during Dr. Simon’s initial inspection and learned the specific
areas that would be subject to testing. When Dr. Simon returned months later
to conduct his inspection and gather samples, the property had been repaired.
The Respondent took no steps to preserve the evidence that the Plaintiff
needed to pursue her claim although the attorneys discussed this very
possibility.
In addition to knowingly disobeying the rules of procedure as
outlined, the Court finds that the Respondent knowingly and intentionally
disobeyed specific court orders and directives as stated in the section entitled
“Misrepresentations and Disregard for Court Orders and Directives” in
violation of Rule 3.4(c).
The Court finds that the Respondent abused his authority, as an officer
of the court, to issue frivolous subpoenas and make frivolous discovery
requests and demands in violation of Rule 3.4(d).
The Court finds that the Respondent, in requesting the Plaintiffs’
doctors to not speak with defense counsel in Pearson violated Rule 3.4(f).
Rule 4.1. Truthfulness in Statements to Others.
In addition to the false statements made to the courts as discussed
under Rule 3.3, the Court finds the Respondent made false statements of
material facts to opposing parties and witnesses as described in the section
entitled "Misrepresentation and Disregard for Court Orders and Directives.”
The Court finds that the Respondent violated Rule 4.1(a) in that he
made a false statement of law to third persons including: (1) stating, either
directly or by way of motion, to witnesses that they could be held in contempt
of court or subject to other sanctions for failing to appear at deposition where
the witnesses were never properly served with a valid subpoena; (2) stating
to non-party out-of-state witnesses that they were required to comply with a
Maryland subpoena; (3) stating to parties or witnesses that they were
compelled to appear for deposition at a location in violation of Rule 2-413.
Rule 4.4. Respect for Rights of Third Persons.
53
The Court finds that the Respondent knowingly abused his authority,
as an officer of court, to routinely attempt to do discovery that has no
substantial purpose other than to embarrass, delay or burden the witnesses
and/or opposing party. The Court finds that the Respondent, knowingly and
intentionally sought medical records in violation of the HIPAA requirements
and/or the Health-General Article by failing to properly serve medical
providers with valid subpoenas and failing to send the required assurances
that no objection to the subpoenas had been made. Seeking psychiatric
records contrary to court orders and seeking lifelong traffic histories would
have no purpose other than to embarrass.
Rule 5.3. Responsibilities Regarding Non-lawyer Assistants.
In view of Respondent’s testimony in trial and at deposition that he
takes complete responsibility for any and all product by his office, the Court
is not convinced by clear and convincing evidence that Respondent violated
Rule 5.3(c).
Rule 8.1. Bar Admission and Disciplinary Matters.
In view of extensive records and documents provided by Respondent
and counsel, the Court is not convinced by clear and convincing evidence
that Respondent violated Rule 8.1.
Rule 8.4. Misconduct.
The Court, as discussed herein, having concluded that Respondent
violated multiple Rules, concludes that Respondent has also committed
misconduct in violation of Rule 8.4(a). See Att’y Griev. Comm’n v. Foltz, 411
Md. 359, 411, 983 A.2d 434, 465 (2009) (internal citations omitted).
As discussed herein the Respondent's ordinary and usual pattern of
practice was laden with deceit and consistent misrepresentations to the
courts, parties and witnesses of both fact and law in violation of Rule 8.4(c).
Most assuredly, the Respondent's conduct was prejudicial to the
administration of justice in violation of Rule 8.4(d). The Respondent’s
pattern of practice is to bend and break the rules to bully, harass and attempt
to intimidate both parties and witnesses. . . . The Respondent conducts
discovery and pretrial depositions by bludgeoning his opponents and
witnesses with unreasonable demands, frivolous motions and unnecessary
acrimony. The effect of the Respondent’s conduct is clear: his opponents
54
and witnesses are forced to spend time and money and expend emotional
energy defending against his frivolous requests and demands, the court
dockets are clogged and the ordinary and proper resolution of claims is
delayed.
This is not a case of walking up to the line in the name of zealous
representation. This is a case of consistent knowing and intentional violation
of the Maryland Lawyers’ Rules of Professional Conduct. The Respondent’s
argument that his actions are defensible in the name of “zealous
representation” is rejected. Although zealousness is a standard of proper
representation, zealousness without the counterbalance of reasonableness
amounts to obstreperousness and unfairness. While the vigorous
representation of client’s interests is laudable, the Court cannot condone the
Respondent’s conduct which, without question, brings the profession into
disrepute.
Mitigation
Judge Doory did find that Mixter had proven that during the relevant time period he
had suffered from increased stress as a result of his mother’s death and his wife’s treatment
for cancer, and that Mixter had modified his office procedures regarding his interactions
with witnesses, but did not accept other offered mitigation:
Care Issues Involving Respondent’s Wife and Mother
From January through July of 2010, Respondent was attending to his
mother during her fatal bout with cancer. In April, May and June of 2012,
Respondent was quite involved in his wife’s diagnosis, treatment and
convalescence from a brain tumor. Dr. Larry Carroll testifies that these
situations increased the pressure Respondent was feeling and exacerbated
Respondent’s competitive personality. The Court accepts that this mitigation
has been proven by a preponderance of the evidence.
Respondent’s Health Problems
In 2008 through 2009, Respondent was dealing with Atrial Fibrillation which
is now primarily controlled by medication. In 2012 through 2013,
Respondent was dealing with prostate cancer. The conditions each
complicated Respondent’s work circumstances to the extent that he would be
hampered from making appearances and meeting deadlines. The Court
accepts that this mitigation has been proven by a preponderance of the
55
evidence. The Court cannot accept mitigation as to active decisions made
during these periods.
Consultation with Larry Carroll, Ph.D.
At the suggestion of his trial counsel, Respondent met with Dr.
Carroll, a Clinical Psychologist, seven times beginning in late 2012. It is Dr.
Carroll’s policy to take no notes and file no reports but he opines that
Respondent does not have any mental health issues. While he finds
Respondent to be normal, he does note that Respondent is ultra-competitive.
For the sessions he did have with Dr. Carroll, Respondent was engaged in
what Dr. Carroll called Cognitive Behavioral Therapy. Respondent told Dr.
Carroll that he has modified his office procedures to communicate better with
opposing counsel and potential witnesses. To deal with Respondent’s ultra
competitive personality, Dr. Caroll suggested the technique of “pausing”
before responding to his initial instinct.
The Court finds the results of Respondent’s limited contact with Dr.
Carroll to be very minor and cannot accept this as mitigation proven by a
preponderance of the evidence.
Modification of Office Procedures
Respondent testified, and discussed with Dr. Carroll, that he has
modified the procedure in his office to require additional calls and letters to
witnesses and waiting well beyond thirty (30) days before reacting to failures
to provide information. These changes seem minor and do not involve
working with opposing counsel to solve problems; but they are an
improvement. The Court will accept that this mitigation has been proven by
a preponderance of the evidence.
Limited Number of Cases and Minor Nature of Violations
Respondent estimates that his firm has handled over thirty five
hundred cases. Between six and seven hundred cases would be involved in
the time covered by this investigation. Twenty-two cases would represent
approximately three-percent of his firm’s workload. It is a minor but
significant percentage. It is also argued that the infractions are each quite
venial. If the number of cases and the number of infractions within each case
were substantially less, this argument would hold more weight. The Court
cannot accept this as mitigation proven by a preponderance of the evidence.
Court Imposed Deadlines
56
Both the Respondent and his expert Mr. Fell testified about the
increased pressure on attorneys involved in the discovery process generated
by court imposed deadlines pursuant to the new case management policies.
All attorneys are subject to this and the Maryland Rules still apply. The court
does not accept this as mitigation.
Devotion of his Clients
Respondent presents the testimony of five of his many clients as a
sampling of the high regard with which he is held by his clients. There is no
question he is well respected by those he represents. The question for this
Court is how he is recognized by all of the parties in the system. Review of
the extensive documents submitted by Petitioner and Respondent disclose
that he has been admonished, sanctioned or scolded by at least sixteen
different judges during this period. The Court cannot accept the devotion of
his clients as mitigation.
IV. Discussion
“This Court has original and complete jurisdiction over attorney discipline
proceedings in Maryland.” Attorney Grievance v. O’Leary, 433 Md. 2, 28, 69 A.3d 1121,
1136 (2013), quoting Attorney Grievance v. Chapman, 430 Md. 238, 273, 60 A.3d 25, 46
(2013). “[W]e accept the hearing judge’s findings of fact as prima facie correct unless
shown to be clearly erroneous.” Attorney Grievance v. Fader, 431 Md. 395, 426, 66 A.3d
18, 36 (2013), quoting Attorney Grievance v. Rand, 429 Md. 674, 712, 57 A.3d 976, 998
(2012). We conduct an independent, de novo review of the hearing judge’s conclusions of
law, pursuant to Maryland Rule 16-759(b)(1).44
44
Maryland Rule 16-759(b) provides, in pertinent part:
(b) Review by Court of Appeals. (1) Conclusions of law. The Court of
Appeals shall review de novo the circuit court judge’s conclusions of law.
57
Mixter noted over one hundred and fifty exceptions to Judge Doory’s findings, as
well as an exception to each of Judge Doory’s conclusions of law. Bar Counsel noted no
exceptions to Judge Doory’s findings and conclusions.
A. Mixter’s Exceptions to Judge Doory’s Findings of Fact
Mixter excepts to Judge Doory’s general finding that “the sixty-two (62) motions
for relief described in the attached Appendix Two (2), incorporated by reference herein,
filed by the Respondent and directed at non-party witnesses were frivolous. The motions
were frivolous because . . . the subpoena was ineffective as of the date of service because
it did not provide the witness the requisite 30 days to produce documents as required by
Maryland Rule 2-412(c).” Mixter asserts that even though he had served subpoenas which
provided less than thirty days for the recipient to produce documents, that this error was
“harmless”. We disagree and overrule this exception, because Maryland Rule 2-412(c),
which requires thirty days’ notice prior to a documents deposition, is written in mandatory
nomenclature of “shall”. See Dove v. State, 415 Md. 727, 738, 4 A.3d 976, 982 (2010).
When the term “shall” is used in a Maryland Rule it “‘denotes an imperative obligation
inconsistent with the exercise of discretion.’” Gaetano v. Calvert Cnty., 310 Md. 121, 124-
25, 527 A.2d 46, 47-48 (1987), quoting City of College Park v. Cotter, 309 Md. 573, 588
n.23, 525 A.2d 1059, 1066 n.23 (1987). We disagree with Mixter.
Mixter also asserts, within the same exception, that he could move to compel
compliance with subpoenas for which he had provided less than thirty days’ notice for the
production of documents, because the motions had not been filed until after thirty days
elapsed from service. Maryland Rule 2-412(c), again, requires thirty days’ notice in order
58
to secure subpoena enforcement. That a motion to compel was filed beyond thirty days
after service is, therefore, irrelevant, because the time for the party’s appearance, or for
raising objections to the subpoena,45 had already occurred, with less time than required by
the Rule. We, accordingly, overrule this exception.
Mixter notes numerous exceptions based on the fact that Judge Doory did not find
credible his testimony as well as that of some of his witnesses. We, however, generally,
“defer to the credibility findings of the hearing judge.” Attorney Grievance v. Agbaje, 438
Md. 695, 93 A.3d 262 (2014). “[T]he hearing judge is in the best position to evaluate the
credibility of the witnesses and to decide which one to believe and, as we have said, to pick
and choose which evidence to rely upon.” Attorney Grievance v. DiCicco, 369 Md. 662,
683-84, 802 A.2d 1014, 1026 (2002), quoting Attorney Grievance v. Monfried, 368 Md.
373, 390, 794 A.2d 92, 101 (2002). See also Attorney Grievance v. Sheridan, 357 Md. 1,
17, 741 A.2d 1143, 1152 (1999) (stating that the hearing judge is “in the best position to
assess first hand a witness's credibility.”). As we have stated, a hearing judge “is free to
disregard the testimony of Respondent if the judge believed the evidence was not credible.”
Monfried, 368 Md. at 390, 794 A.2d at 101.
Mixter excepts to all of Judge Doory’s findings that he knowingly and intentionally
engaged in misconduct. He initially argues that Judge Doory erred because there was no
direct evidence to support that his impropriety was both knowing and intentional. We have
45
Maryland Rule 2-510(e) provides that objections to subpoenas are to be made, “at or
before the time specified in the subpoena for compliance”.
59
said, however, that intent “may be inferred from circumstantial evidence”, (Attorney
Grievance v. Jarosinski, 411 Md. 432, 452, 983 A.2d 477, 489 (2009)), and that, even
without an express disclosure of intent, “the sum of the circumstantial evidence” can
demonstrate the Respondent’s mental state. Attorney Grievance v. Goodman, 426 Md.
115, 131, 43 A.3d 988, 997 (2012).
Mixter initially takes exception that Judge Doory did not find credible his testimony
that he had, in fact, attempted to resolve discovery disputes by telephoning opposing parties
to resolve issues before he filed motions to compel. We defer to Judge Doory’s credibility
findings and also note that in Mixter’s twenty-two case files, introduced into evidence and
comprising thirty-two volumes, he did not include any notation nor preserve any
documentation in any file, with respect to any such telephone conversations or attempted
resolution of discovery disputes.46 We overrule this exception.
Judge Doory found also that Mixter knowingly and intentionally misrepresented to
various tribunals that he had engaged in good faith attempts to resolve discovery disputes
as part of his Maryland Rule 2-431 certificates attached to the fifty-three motions listed in
Appendix 6 and contained in Mixter’s files. According to Judge Doory’s findings, Mixter
had attached to every one of his certificates of good faith, as evidence of his attempts to
resolve the discovery disputes, a copy of his cover letter accompanying the original
subpoenas mandating the production of documents and depositions. For example, within
46
Interestingly, when a telephone call from a paralegal in Mixter’s office had been made,
it was actually noted in Mixter’s files and in his certificate of good faith compliance.
60
Petitioner’s Exhibit 18, which is comprised of Mixter’s files from the Mixter litigation, was
such a cover letter sent to Stephen Shechtel,47 an attorney in Rockville, which stated:
Enclosed please find a Notice of Deposition and Subpoena Duces
Tecum, which is being served upon you via certified mail. If you would
please forward copies of all documents requested by the date of the
deposition it will not be necessary for you to testify or appear. Please note
that we are not authorizing the use of a record copy service.
Additionally, we will not pay for any such services without written
approval.
(emphasis in original).
Judge Doory found that the cover letters were not representative of good faith
attempts to resolve discovery disputes, because not only were they sent to witnesses before
any dispute actually could have existed, but excusing a witness’s presence if all documents
are produced is not within the contemplation of the Maryland Rules for resolution of
discovery disputes. The file reflects, moreover, that after Mr. Shechtel received the
subpoena, he responded by letter objecting to it, asserting that: “the Subpoena was served
not in accordance with Maryland Rules”; the documents sought were “outside of the
Maryland Rules”; the documents deposition was scheduled “without the courtesy of an
advance telephone call . . . on a date and at a time that [Mr. Shechtel was] unavailable; the
request was “far too broad”; and the documents demanded “may constitute attorney work
product and accordingly are not discoverable.”
47
Mr. Shechtel had represented the Cochran Defendants against Mixter in the Railey
litigation, which was a precipitate to his being served with a subpoena in Mixter’s
individual case.
61
Without responding to Mr. Shechtel’s letter, Mixter subsequently filed a Motion to
Compel in which he asserted that Mr. Shechtel “did not comply with any of the terms of
the subpoena”, attaching to it his original cover letter, and in which he failed to mention
Mr. Shechtel’s letter or any documentation of true good faith efforts at conciliation of the
dispute. Ultimately, the Circuit Court quashed the subpoena, based upon the objections
Mr. Shechtel had sent to Mixter, which Mr. Shechtel included with his subsequent Motion
for Protective Order. Upon a review of the record that Judge Doory had before him, just
as in the Mixter case and Mr. Schechtel’s interactions, for all the motions listed in Appendix
6, there was clear and convincing evidence from which the hearing judge could find that
Mixter had knowingly and intentionally certified that he acted in good faith to resolve
discovery disputes when, in fact, he had not. We, accordingly, overrule Mixter’s objections
to Judge Doory’s findings listed in Appendix 6.
Judge Doory also had before him, listed in Appendix 7, twelve motions authored by
Mixter and contained in his files—six to compel, three for contempt, two for sanctions (one
of which was, in the alternative, a motion to compel) and one for a protective order—in
which Judge Doory found that Mixter had knowingly and intentionally omitted reference
to letters that attorneys had sent to him attempting to conciliate the discovery disputes
before he filed the motions to compel, for contempt, for sanctions and for a protective
order. Exhibit 18 includes an example chosen by Judge Doory to discuss, that being a
Motion to Compel the production of documents from Steven A. Markey, III, from whom
Mixter sought documents embodying any statements made by Mr. Markey to other
62
attorneys about Mixter “at any time whatsoever.”48 Mr. Markey responded to the subpoena
by letter, included in Mixter’s files, stating, “I have done a diligent search of my computer
records and I am unable to find any documents [responsive to your subpoena]”; Mr.
Markey, though, referred to a practice of his that he would engage in if approached about
Mixter:
It is possible that one or more of [the Mixter defendants] were provided with
a copy of the Order from [the Honorable] Susan Souder, a copy of the
Opposition to Defendant’s Motion to Compel Independent Medical
Examination and Request for Sanctions in the matter of Lewis v. Edison
Schools, Inc., or a copy of the U.S. District Court Opinion in the matter of
Higgenbotham v. KCS International, Inc.[49] I have enclosed copies of these
documents for your convenience. If and when I receive inquires about Mark
T. Mixter, these are the documents I would possibly provide.
Subsequently, Mixter filed a Motion to Compel the deposition and production of
documents from Mr. Markey, in which he entirely omitted any reference to Mr. Markey’s
letter; instead, the motion included only an identical version of the cover letter, discussed
48
Judge Doory also included the broad request directed at Mr. Markey as an example of
Mixter’s abuse of the subpoena power.
[49]
In Higgenbotham v. KCS Int’l, Inc., 202 F.R.D. 444, 446-47 (D.Md. 2001), while
Mixter, representing Higgenbotham, was deposing an expert for KCS, KCS’s attorney
incorrectly authorized the deponent to leave before the deposition was through. Three
weeks later, in an act found by the magistrate judge to be “an express act of retaliation, Mr.
Mixter directed his expert witness to walk out in the midst of his deposition, over the
objection of [opposing counsels].” Id. The magistrate sanctioned Mixter for his “lack of
professionalism” and for conduct that “was purely retaliatory, entirely knowing and
purposeful and thus utterly out-of-bounds.” Id.63
supra.50 Upon a review of the record, there are no instances in which Mixter included
either the substance of material correspondence from opposing counsel regarding a
discovery dispute or the correspondences themselves in his discovery motions, just as with
Mr. Markey. We overrule Mixter’s exception to Judge Doory’s finding in each instance
listed in Appendix 7.
Judge Doory also found that that Mixter had intentionally and knowingly
misrepresented to the Circuit Court for Anne Arundel County, in the Koontz litigation, that
the custodian of records for Dr. Eckel had been served with a subpoena for a documents
deposition, “on or about 21st day of April, 2010”. To his Motion to Compel documents
from Dr. Eckel, Mixter had attached a United States Postal Service “Track & Confirm”
receipt for the subpoena which revealed that it had not been delivered until April 27, 2010,
six days after Mixter had claimed service had been accomplished and had actually been
returned to Mixter’s office on April 29, 2010. The problems with service on Dr. Eckel,
however, had not been revealed in the Motion filed by Mixter. We, accordingly, overrule
Mixter’s exception to Judge Doory’s finding that he knowingly and intentionally
misrepresented to the Circuit Court judge in Koontz that Dr. Eckel had properly been
served.
50
Mixter withdrew the original Motion to Compel after he issued, for a second time, a
subpoena to Mr. Markey. Mr. Markey had objected to the original subpoena and filed a
motion for a protective order. Mixter filed a second Motion to Compel, as to the second
subpoena, together with his response to Mr. Markey’s motion for a protective order. Judge
Doory found that the forgoing demonstrated that Mixter’s “purpose was to harass Mr.
Markey”.
64
Judge Doory found, as well, that, in the Mixter litigation, Mixter had intentionally
and knowingly attempted to enforce an unserved subpoena commanding the personal
appearance of, and the production of documents from, the custodian of records for Dr.
Michael Conte. Judge Doory’s finding was premised on Mixter’s files, which reflect not
only that, on March 8, 2012, Mixter had mailed a documents subpoena to Dr. Conte, but
that the subpoena had been returned to Mixter’s office and, on April 18, 2012, he had resent
the subpoena to Dr. Conte by first-class mail, which our Rules do not contemplate as
adequate service. On April 18, 2012, Mixter, however, filed a Motion to Compel in which
he asserted that the subpoena had been served “on or about March 6, 2012”, but he must
have known the subpoena had not been served by the very fact that he had resent it. We,
accordingly, overrule Mixter’s exception to Judge Doory’s determination that he had
intentionally and knowingly attempted to enforce an unserved subpoena on Dr. Conte in
the Mixter litigation.
Judge Doory found that Mixter had knowingly and intentionally attempted to
enforce twenty-four Maryland subpoenas to out-of-state witnesses, which are identified in
Appendix 3, without having followed the protocols for issuing enforceable out-of-state
subpoenas. Maryland Rule 2-413(a)(2) mandates that a nonparty may only be “required to
attend a deposition outside of this State in accordance with the law of the place where the
deposition is held.” Mixter, however, issued the twenty-four subpoenas, and attempted to
enforce them, without having acted “in accordance with the law of the place” where the
various out-of-state witness were located.
65
Judge Doory specifically identified, in the Mixter files, an instance in which Mixter
had intentionally misrepresented to a witness that he had complied with Maryland Rule 2-
413(a)(2). Judge Doory observed that Mixter had mailed to TrialSmith, Inc., located in
Austin, Texas, a notice of deposition, a Baltimore City subpoena for a documents
deposition and an unsigned Commission to Take Foreign Deposition. According to Judge
Doory, the inclusion of an unexecuted commission was an intentional misrepresentation
by Mixter to TrialSmith that he had complied with Section 20.002 of the Texas Civil
Practice and Remedies Code. After a review of the record accompanying each subpoena
listed in Appendix 3, in every instance, as with TrialSmith, Mixter had attempted to enforce
subpoenas for documents depositions served on out-of-state fact-witnesses in which he had
failed to follow the rubric for issuance of such deposition subpoenas. We, accordingly,
overrule Mixter’s exception to Judge Doory’s finding that he had knowingly and
intentionally attempted to enforce the subpoenas identified in Appendix 3.
Judge Doory also found that Mixter had intentionally and knowingly misrepresented
to non-party witnesses residing in other states that they could be compelled to appear and
produce documents in Maryland. Judge Doory found that Mixter knew that every one of
the thirty-five subpoenas listed in Appendix 4 was directed at a witness outside of
Maryland, but did not comport with the proper procedures for the issuance of subpoenas to
non-party witnesses outside of Maryland. While Mixter knew an out-of-state witness could
not be compelled to attend a deposition in Maryland, as discussed supra, the subpoenas, in
emphasized print, stated “you are liable to body attachment and fine for failure to obey this
66
subpoena.”51 Mixter, in his cover letter included with the subpoenas, which we also have
discussed supra, stated to the recipients that their attendance could be compelled by
informing them that, “if [they] would please forward copies of all documents . . . it will not
be necessary for [them] to testify or appear”, thereby implying that the appearance of out-
of-state witness could otherwise be compelled.52 We overrule Mixter’s exception to Judge
Doory’s finding that he intentionally and knowingly misrepresented to non-party, out-of-
state witnesses, in connection with each subpoena identified in Appendix 4, that their
appearance could be compelled at a documents deposition in Maryland.
Judge Doory, also, found that in seven subpoenas in Mixter’s files from five cases,
Mixter had intentionally and knowingly misrepresented to non-party residents of Maryland
that they could be compelled to appear and produce documents outside of their counties of
residence or employment,53 in contradiction to the mandate of Maryland Rule 2-
413(a)(1).54 As with the subpoenas directed to out-of-state witnesses, discussed supra, the
51
While the subpoenas from various circuit courts differ in their manner of emphasizing
the body-attachment warning, all subpoenas did include such a warning.
52
In fact, Judge Doory observed that Mixter acknowledged that out-of-state, non-party
witness cannot be compelled to appear in Maryland where, in Mixter’s files from the
Garnett litigation, there is a letter he had written to opposing counsel in which he averred,
“the notice of deposition and [Maryland] subpoena are ineffectual for a Pennsylvania
witness.”
53
Judge Doory noted that Mixter had attempted to enforce four of the seven subpoenas
when the putative deponent challenged its enforceability.
54
Interestingly, Judge Doory noted that Mixter knew Maryland Rule 2-413(a)(1), because,
within Mixter’s files from the Garnett litigation, is a Motion to Hold in Contempt in which
he emphasized that witnesses located in Cecil and Baltimore Counties could not be
compelled to travel to Baltimore City for a deposition.
67
subpoenas directed to in-state residents had contained the same highlighted language
notifying the recipients that they could be subject to body attachment for non-appearance
at the deposition and Mixter had included the same cover letters indicating that he would
take action to compel the witnesses’ appearance.
For example, Mixter’s files from the Mixter litigation contain a subpoena, served on
the Maryland Association for Justice, a non-party with its principal office in Howard
County, commanding the personal appearance of, and production of documents from, its
representative at Mixter’s office in Baltimore City. The Association objected to the
subpoena on the grounds that, inter alia, it was unenforceable, because it violated Maryland
Rule 2-413. Mixter, in response, however, asserted that the Maryland Rule 2-413 violation
“does not render the subpoena unenforceable.” Upon a review of the record pertinent to
the other six subpoenas, Mixter had included the same subpoenas and cover letters which
put the recipients on notice that their physical appearance could be compelled, so that we
overrule Mixter’s exception to Judge Doory’s finding that Mixter had intentionally and
knowingly misrepresented to non-party residents of Maryland that they could be compelled
to appear and produce documents in violation of Maryland Rule 2-413(a)(1).
Judge Doory found, as well, that Mixter had knowingly and intentionally
misrepresented to Judge J. Frederick Motz of the United States District Court for the
District of Maryland, during the Byrne-Egan litigation, that the third-party defendant had
admitted to a failure to timely respond to discovery requests. Mixter’s files from the Byrne-
Egan litigation, which had been admitted into evidence as Petitioner’s Exhibits 3 and 4,
contain a Motion to Compel the third-party defendant’s answers to interrogatories and
68
production of documents, filed on December 2, 2011. The third-party defendant’s
Response, filed on December 19, 2011, included within Mixter’s files, contained only three
affirmations, none of which admitted to a failure to timely respond to Mixter’s discovery
requests:
1. This case was removed to Federal Court by Empire after it filed a
Third Party Complaint against Seay in State Court and she filed a
counterclaim.
2. Seay avers that this court has no jurisdiction in this matter and she has
filed a Motion to Remand to State Court which has yet to be ruled
upon.
3. In any event, Seay intends to respond to Empire’s discovery requests
within ten days.
In Mixter’s letter to Judge Motz the very next day Mixter asserted, however, that the third-
party defendant had “admit[ed] to the plaintiff’s failure to timely answer my client’s
discovery requests”, which was not reflective of the state of affairs. We, accordingly,
overrule the exception.
Judge Doory also found that Mixter had attempted to obtain the opposing parties’
health care records during the Byrne-Egan and Koontz litigations by knowingly and
intentionally misrepresenting to the health care providers that no objection had been made
to the disclosure of such records. Mixter’s files from Byrne-Egan show that, on February
21, 2012, the third-party defendant filed a Motion for a Protective Order to “bar the inquiry
into and the disclosure of the unrelated mental health history of Emily Seay” and that, on
March 5, 2012, Mixter filed a response to the motion for a protective order. Mixter, despite
having responded to the motion for a protective order as to Ms. Seay’s health care records,
sent a letter to her health care providers that stated, “Emily Ann Seay . . . has not objected
69
to the disclosure of the requested medical records.” Accordingly, we overrule this
exception.
In Koontz, Judge Doory also found that Mixter had attempted to obtain the
plaintiff’s medical records by knowingly and intentionally misrepresenting to the
plaintiff’s health care providers that no objections to such disclosure had been made.
Mixter’s files from the Koontz litigation show that Mixter had issued subpoenas to nineteen
of the plaintiff’s healthcare providers on April 21, 2010, requesting the plaintiff’s medical
records and that, on May 5, 2010, the plaintiff filed an “Emergency Motion” for a protective
order or to quash or limit those nineteen subpoenas. Sixteen days later, Mixter sent a letter
to the health care service providers, a sample of which is contained in his files, wherein he
disregarded the existence of the Emergency Motion and informed the providers that, “[the
plaintiff] and her attorney have not objected to the disclosure of the requested medical
records. Please forward the responsive records at your earliest convenience.” Mixter’s
files support Judge Doory’s finding that Mixter had made intentional misrepresentations to
the plaintiff’s health care providers. We overrule this exception.
Judge Doory also found that Mixter had knowingly and intentionally misrepresented
to Judge Deborah K. Chasanow of the United States District Court for the District of
Maryland, in the Davis litigation, that the defendants had been properly served with the
complaint. Mixter’s records, contained in Petitioner’s Exhibit 7, include return receipts
from the mailed complaints that were that were signed on March 12, 2010. The receipts,
however, were not signed by the defendants, as Judge Doory observed and as Mixter
himself testified at the hearing before Judge Doory. Mixter, nonetheless, had included the
70
return receipts as exhibits to affidavits he had executed under oath in which he affirmed to
Judge Chasanow “that a complaint was duly served upon [the defendants] on or about
March 12, 2010 by evidence of the signature on the return receipt attached to this affidavit”.
The record supports the finding that Mixter had made an intentional misrepresentation to
Judge Chasanow; we, therefore, overrule this exception.
Judge Doory found that Mixter had knowingly and intentionally obstructed his
opposition’s access to evidence in Pearson by sending a letter to his client’s physicians
requesting that they not speak to opposing counsel, despite a court order authorizing such
communication. Mixter’s files from the Pearson litigation, received into evidence as
Petitioner’s Exhibit 21, include an Order from a Judge on the Circuit Court for Prince
George’s County, issued May 18, 2012, permitting the parties to “engage in ex parte
discussions with treating healthcare providers” and allowing “any third-party who is
provided with a subpoena requesting the production of documents or commanding
attendance at deposition or trial to disclose Protected Health Information in response to
such request or subpoena.” Mixter’s files also contain a letter he had sent to one health
care provider, dated just three days after the order, in which he told the physician, after
acknowledging the Order, to “refuse to discuss Ms. Pearson’s treatment” with the
opposition. We overrule Mixter’s exception to Judge Doory’s finding that Mixter had
intentionally attempted to prevent opposing counsel from speaking to his client’s
physicians in Pearson.
71
Judge Doory, thus, had clear and convincing evidence that had been contained
within Mixter’s own files from which he could find that Mixter had acted knowingly and
intentionally in making the various misrepresentations to courts, as well as to witnesses.
Mixter also notes exceptions to Judge Doory’s findings that various Maryland
subpoenas had been improperly served on out-of-state witnesses, because, Mixter argues,
Bar Counsel had not presented proof that the various deponents had not consented to a
waiver of the Rules. As we have discussed, however, the Maryland Rules and statutes of
the various other states in issue require additional protocols for an out-of-state witness to
be compelled to attend a deposition.
For example, Mixter asserts that, regarding the Alemu litigation, “Petitioner also
failed to produce any evidence that Maharishi University, while located [in Iowa], is not
subject to Maryland’s subpoena powers for other reasons or that an agreement had been
entered into between the parties regarding requests for documents from out-of-state
witnesses.” The University is located in Iowa and only would have been subject to the
authority of the Maryland courts, once Mixter complied with the strictures of Maryland
Rule 2-413(a)(2), which would have required adherence to Section 622.84 of the Iowa
Code, discussed supra. There was no documentation in Mixter’s files that he had attempted
to properly serve a subpoena on Maharishi University according to Iowa law or of an
agreement waiving service, so that we overrule this exception. We overrule, as well, each
of Mixter’s similar exceptions premised on the assertion that Bar Counsel had failed to
prove that the opposing party in each of the ten cases had not waived the Maryland Rules,
72
because, upon a review of the record, there are no such documents regarding waiver
included in any of the relevant files that were maintained by Mixter.
Mixter also excepts to six specific findings that Maryland subpoenas had contained
misrepresentations to six non-party, out-of-state recipients, that their attendance could be
compelled in Maryland.55 Mixter’s exceptions are premised on the theory that the six
witnesses became subject to jurisdiction in Maryland by allowing their designation as
witnesses in Maryland courts.
We disagree, because Maryland Rule 2-413(a)(2) is explicit that a non-party witness
outside of Maryland only may be required to attend a deposition in accordance with the
laws of the State where the witness resides. By failing to follow the protocols of the various
states in which the witnesses resided, Mixter issued unenforceable subpoenas and the
recipients could not be compelled to appear in Maryland. Accordingly, we overrule these
exceptions.
Mixter also excepts that Bar Counsel could not have proven that ten subpoenas,
from five cases, had not been properly served, because no proof of service was presented
55
The six findings by Judge Doory are that: the Alemu defendants’ motion to exclude Dr.
Mark Danzinger, a Washington D.C. resident, was frivolous, because the underlying
subpoena did not properly compel the attendance of an out-of-state witness; the Maryland
subpoena to the custodian of records for Joseph Cammarata, in Alemu, was improperly
directed at a non-Maryland resident seeking the production of documents; the Maryland
subpoena directed to Bartley Eckhardt, in Alemu, was improper, because the expert lived
outside of Maryland; the Maryland subpoena to the custodian of records for Capital
Reporting, a Washington D.C. entity, in Alemu, improperly sought documents from a non-
Maryland citizen; the Maryland subpoena to Larry Dinoff, an expert in Alemu, was
improperly directed at a non-Maryland resident; and the Maryland subpoena for Thomas
Grogan, a non-Maryland expert in Pearson, was improper.
73
to Judge Doory. For example, Mixter argued that “Respondent excepts to the court’s
finding that the [Motion to Compel custodians of records of Blake Construction and
Cunningham Contracting in Koontz] was frivolous as no evidence was presented regarding
how or when the witness was served.” Proper service of a subpoena by mail, in compliance
with Maryland Rule 2-121(a)(3), discussed supra, necessarily would generate a return
receipt as proof of proper service signed by the party to be served or his or her authorized
agent; Maryland Rule 2-126(a)(3) manifests that an original return receipt so signed is
required for proof of service by mail. There were no return receipts evidencing proper
service signed for by a proper party within any of the five files at issue. We, accordingly,
overrule Mixter’s exception that Bar Counsel could not prove there had not been proper
service due to a lack of proof of service.
Mixter also excepts to Judge Doory’s findings that various motions to compel the
production of records from health care providers were frivolous, because valid subpoenas
had been served upon the providers. Judge Doory found, however, that in six instances
from four cases Mixter had not complied with additional steps for obtaining health care
records provided by Section 4-306 of the Health-General Article of the Maryland Code,
discussed supra. The record reflects that Mixter had not complied with Section 4-306,
because he had either failed to send a 30-day assurance letter altogether to the medical
provider, or he had mailed the letter less than one week before he certified service of a
motion to compel the records, thereby providing insufficient time for the production of
documents. We, therefore, overrule this exception.
74
Mixter also excepts to Judge Doory’s finding that, “Respondent had a pattern and
practice of knowingly and intentionally noting depositions in the wrong venue”. According
to Mixter, Judge Doory erred because every subpoena for the production of documents in
his files had included a cover letter stating that the witness would not have had to appear
so long as the documents were produced. Judge Doory found, however, that every
subpoena required personal appearance of the witness, because in every subpoena, in those
same files, Mixter always had selected the option on the subpoena form that required the
witnesses to “personally appear and produce documents or objects”, rather than checking
the option which provided, “produce documents and or objects only”.56 In so doing, Judge
Doory found that Mixter had misrepresented to the witnesses that they could be compelled
to appear in improper venues. Upon a review of the record, there are no instances in which
Mixter issued a subpoena requesting only the production of documents, instead, he had
sought the personal appearance of the recipient of his subpoenas. We, accordingly,
overrule this exception.
Mixter also excepts to Judge Doory’s finding that his “Motion to Hold in Contempt
Various Custodians of Records” for absence at trial, filed in Alemu, was frivolous, because,
according to Judge Doory, Mixter sought to hold non-party witnesses in contempt for their
absence at a trial that had not taken place and that Mixter had moved to continue. Mixter
asserts that Judge Doory erred in finding that it was he who had filed the motion to continue
56
The subpoena forms for the various Maryland venues include three options: for personal
appearance of the witness; for only the production of documents or objects from the
witness; and for the personal appearance of the witness along with the production of
documents or objects from the witness.
75
the trial date. We sustain this exception, because the docket sheet in Alemu reflects that
the motion for a continuance had been filed by one other than Mixter.
Whether Mixter had filed the motion to continue, however, was not dispositive with
regard to Judge Doory’s finding that the motion to hold the non-party witnesses in
contempt was frivolous, because “there was no basis in fact or law to file a motion to hold
non-party witnesses in contempt of court for failure to appear at a trial that did not take
place.” Mixter’s file containing the docket sheet from Alemu reflects that the Circuit Court
Judge had granted a postponement, on June 17, 2010, while Mixter had filed his motion
for contempt, within the subsequent month, on July 8, 2010. We, accordingly, overrule
Mixter’s exception to Judge Doory’s finding that the “Motion to Hold in Contempt various
custodians of records” was frivolous.57
Mixter also excepts to Judge Doory’s finding that the Motion to Compel the
Custodian of Records of Maryland Dental Board to produce documents, filed in the Canby
litigation on November 2, 2011, was frivolous. As Mixter recognized in his exception, he
sent notice of the deposition on October 20, 2011 for a deposition to be held on October
57
We also note that Judge Doory found the motion was frivolous as the subpoena had been
served on out-of-state witnesses, Bally’s Total Fitness Corporate Office, California and
Amgolf, Virginia, without a record that the proper protocols for those jurisdictions were
followed. Additionally, Judge Doory found that subpoena served on United Healthcare
and the Worker’s Compensation Commission were without compliance with Section 4-306
of the Health-General Article of the Maryland Code, and subsequent motions to compel
were, therefore, frivolous.
76
31, 2011, which did not comport with the thirty-day requirement of the Maryland Rules.58
We overrule this exception.
Mixter excepts to Judge Doory’s finding that the Motion to Compel the custodian
of records of CSC-Layers to produce documents in Dunston was frivolous for being
untimely, because, Mixter argues, Judge Doory could not rely upon the Circuit Court’s
order denying the Motion to Compel to conclude that the motion itself, also included in the
record, was frivolous. In the Order, which was included with Mixter’s files from Dunston
in Petitioner’s Exhibit 8, Judge Audrey Carrion of the Circuit Court for Baltimore City
denied the Motion to Compel as untimely, because it was filed “in violation of the
discovery deadline defined in the Scheduling Order.” This exception is overruled.
Mixter notes an exception to Judge Doory’s finding that the Motion to Compel
Custodian of Records of GEICO to produce documents in Dunston was frivolous, on the
basis that the Motion to Compel was not part of the record before Judge Doory. Judge
Doory could not have found that the motion to compel was frivolous, because that motion
was not included in the Dunston files. We sustain this exception.
Judge Doory found, as well, that the Motion to Hold in Contempt the records
custodian of GEICO was a frivolous motion directed at a non-party. Mixter also excepts
58
The Canby defendant filed an opposition to the Motion to Compel in which she asserted
that Mixter’s motion was frivolous for a number of reasons, including that “the purported
Notice of Deposition does not afford the Dental Board the requisite thirty (30) days
required by Maryland Rule 2-412(c).” The Dental Board also filed a motion to quash the
subpoena on the grounds that the documents requested were statutorily-protected,
confidential records. At the trial in Canby, the Circuit Court Judge ultimately denied
Mixter’s request that a representative of the Dental Board be permitted to testify.
77
to this finding, on the basis that the Motion to Hold in Contempt was proper because
GEICO had not complied with the order granting the previous motion to compel. Mixter’s
records from Dunston reveal, however, that the Motion to Hold in Contempt was untimely,
because, according to an Order from the Circuit Court for Baltimore City denying the
Motion to Hold in Contempt, “The Motion was filed in violation of the discovery deadline
defined in the Scheduling Order.” We, accordingly, overrule this exception.
Mixter next excepts to Judge Doory’s finding that the Motion to Compel the
custodian of records of Washington Hospital Center, located in Washington, D.C., to
produce documents in the Fitzgerald litigation was frivolous, because, he asserts, he had
properly complied with the District’s rules for service, as evidenced by a Washington D.C.
subpoena in his files from the Fitzgerald litigation. As we explained supra, however, in
2008, when the subpoena was issued, the District of Columbia required that a commission
and notice be issued by the Circuit Court for Prince George’s County. See D.C. Code §
14-103 (2008). We overrule this exception.
Mixter also notes an exception to Judge Doory’s finding that the Motion to Compel
production of documents from the Maryland Association of Justice filed in Mixter was
frivolous. Mixter asserts that “the Maryland Association for Justice concedes that it was
served a subpoena from Respondent”. Service was not the issue, however, because the
Association objected to enforcement of the subpoena on the grounds that the deposition
78
was mandated to be taken in the wrong county, in Mixter’s office in Baltimore City.59 The
Association, ultimately, had secured a protective order. We overrule this exception.
Mixter excepts to Judge Doory’s finding that the Motion to Compel the production
of documents from the custodian of records for Dr. Rosenbaum contained a
misrepresentation to the Circuit Court for Prince George’s County in the Byrne-Egan
litigation. Mixter affirmed to the Circuit Court in the Motion to Compel that the witness
was served “on or about August 25, 2011”. Judge Doory observed, however, that “[t]he
green card is clearly from something else as it was dated August 16, 2011, more than a
week before the relevant subpoena was issued.” Mixter, however, urges that “while it
appears that the green card is dated ‘8/16/11’ it is more likely that the green card is actually
dated ‘8/26/11’”. A review of the green card in Mixter’s files that had been received into
evidence reflects the date as “8/16/11”. We, therefore, overrule this exception.
Mixter also excepts to Judge Doory’s finding that he misrepresented to the Circuit
Court for Charles County in a Motion to Compel in Keener that an enforceable subpoena
for the production of documents had been served upon the Civista Medical Center. Mixter,
in his exception, asserts that the subpoena was enforceable, because it was served on
Civista, located in Charles County, on September 21, 2009, and he sought production of
59
Paragraph 2 of the Association’s filing states, in pertinent part:
The Subpoena improperly states the location of the deposition is the offices
of the Mark T. Mixter, 20 South Charles Street, 9th Floor, Sun Life Building,
Baltimore, Maryland 21201. However, the M[aryland] A[ssociation for]
J[ustice] is not a party to the matter and resides and engages in business only
in Howard County, Maryland. Therefore, pursuant to Md. 2-413, the
Subpoena is invalid and unenforceable.
79
documents at his office in Baltimore City on October 19, 2009. Furthermore, Mixter
excepts on the basis that he had sent thirty-day assurance letters to Civista, in compliance
with Section 4-306 of the Health-General Article of the Maryland Code, on October 22,
2009.
The subpoena directed at Civista, however, was unenforceable, because it sought
the production of documents from a non-party witness in the wrong jurisdiction, as
mandated by Maryland Rule 2-413, discussed supra. Furthermore, under Maryland Rule
2-412(c), Civista had thirty days within which to produce documents, but the subpoena for
the production of documents called for fewer days. Under Section 4-306 of the Health-
General Article of the Maryland Code, finally, Civista could not have produced the
documents on October 19, before it had received the 30-day assurance letters on October
22. We, therefore, overrule Mixter’s exception.
Mixter notes an exception to Judge Doory’s finding that the Motion to Compel the
production of medical records from the United States Department of Health and Human
Services in Fitzgerald was frivolous, because the Department had been properly served at
its Maryland office. Judge Doory’s finding that the Motion to Compel was frivolous,
however, was based on the fact that Mixter had misrepresented to the Circuit Court for
Prince George’s County that he had complied with Maryland Rule 2-431, discussed supra.
Mixter in fact, however, had not engaged in good faith efforts to resolve the dispute, and
he had omitted from the motion relevant correspondence from the Department, such as
letters he received notifying him that he was required to first obtain consent from Ms.
80
Fitzgerald for the release of the requested documents. We accordingly overrule his
exception.
Mixter excepts to Judge Doory’s finding that, in Koontz, the Motion to Compel the
production of documents from the custodian of employment records for the United States
Internal Revenue Service was frivolous, because he had properly served an enforceable
subpoena on the Internal Revenue Service in Annapolis. Judge Doory had found, however,
that the Motion to Compel was frivolous, because there had been no proof of service of the
subpoena, which is supported by a review of Mixter’s files in Koontz. We overrule this
exception.
Mixter also excepts to Judge Doory’s finding that the Motion to Compel
supplemental answers to interrogatories from the plaintiff, filed in the Circuit Court for
Prince George’s County in Byrne-Egan, was a frivolous motion, because there had been
no good faith attempts at resolution of the discovery dispute. We sustain this exception,
because the record contains a copy of the opposing party’s Answer to Motion to Compel
in which they admit to having submitted incomplete answers to interrogatories.60
Mixter excepts as well to Judge Doory’s finding as frivolous the Motion in Limine
to preclude Ms. Emily Seay from testifying as to her alleged emotional distress in the
Byrne-Egan litigation. Mixter argues that the Motion in Limine was proper “as it sought
to preclude the Third-Party Defendant from introducing evidence of mental or
psychological damages after a protective order had been entered precluding Respondent
60
The docket from Byrne-Egan, included in Mixter’s files, shows no attempt by Mixter to
pursue sanctions against the plaintiff.
81
from obtaining medical records relating to said damages.” Judge Doory’s finding was
based on the fact that Ms. Seay stipulated that, “[she] is making no claim of psychiatric
injuries as a result of this accident.”61 As a result, Mixter’s Motion in Limine was frivolous,
and we overrule the exception.
Mixter also notes an exception to Judge Doory’s finding that the Motion for
Contempt filed in Canby to preclude Douglas Barnes from testifying and for sanctions was
frivolous, because, he argues, “[t]his motion was directed at an expert witness for
Defendant. Therefore, Respondent excepts to the court’s use of this motion to support its
claim that Respondent filed frivolous motions directed at opposing parties.” Mixter also
excepts, with regards to Judge Doory’s use of the Motion for Contempt to preclude Dr.
Barnes, “to the trial court’s finding that the filing of a Motion [for Contempt]62 against Dr.
Barnes was a material misrepresentation to the Court.”
Judge Doory, however, had only made two findings with regards to the Motion for
Contempt to preclude Dr. Barnes: that the motion contained a false certification of good
faith efforts at resolution of a discovery dispute, (see Appendix 6 (“Vol. 6, tab 31”)), and
that the motion exemplified Mixter’s use of motions for contempt in order to “harass[] and
intimidat[e] opposing parties and expert witnesses by threatening an order of contempt in
an attempt to force the expert to appear at a deposition on terms, often unreasonable, set by
61
In three separate paragraphs in Ms. Seay’s Motion for a Protective Order she repeated
that psychiatric damages were not being sought.
62
In his exceptions, Mixter refers to the Motion for Contempt as a Motion to Compel.
Judge Doory, however, made no findings with regards to a Motion to Compel Dr. Barnes
and we conclude that Mixter had intended to refer to the Motion for Contempt.
82
the Respondent or be excluded from testifying at trial.” With respect to Dr. Barnes
specifically, Judge Doory found:
Douglas Barnes, D.D.S.
On July 21, 2011, the Respondent filed Plaintiff’s Motion for
Contempt and to Preclude Douglas Barnes, D.D.S., from Testifying as a
Witness on Behalf of the Defendant and for Sanctions in Canby. In the
motion, the Respondent did not even allege that a subpoena was issued or
served. Nonetheless, he requested the court hold Dr. Barnes in contempt for
failing to voluntarily change the start time of the second day of his deposition
from 10 a.m. to 9 a.m. to accommodate the Respondent’s schedule. On
August 3, 2011, the Circuit Court for Anne Arundel County denied the
motion.
(internal record citations omitted). Mixter’s files from Canby do not show any subpoena
related to the Motion for Contempt and the exhibits included with the Defendant’s Answer
to Plaintiff’s Motion for Contempt reveals the truth, that Mixter had filed the Motion for
Contempt in an attempt to force Dr. Barnes’s deposition to move forward on Mixter’s own
terms.63 We, accordingly, overrule Mixter’s exception.
63
The Canby defendant presented the following timeline in its Opposition to Plaintiff’s
Motion for Contempt, as supported by documentation attached to the Opposition and
included in Mixter’s files:
Dr. Barnes first appeared, and was deposed, on May 24, 2011 but that
deposition was suspended by Plaintiffs’ counsel because of an error by the
court reporter who arrived late. It was agreed, at that time, that Plaintiffs’
counsel would conduct the deposition via telephone. . . .
a. On June 22, 2011, [Mixter] forwarded a correspondence indicating he
was available the morning of July 15, 2011 for the second part of Dr.
Barnes’ deposition.
b. On June 28, 2011, [Defense] counsel spoke with [Mixter’s assistant], to
advise that the defense was still trying to clear dates with Dr. Barnes’
office for his deposition. . . .
c. On June 30, 2011, unaware of the unilateral scheduled “Resumed” Notice
of Deposition, [defense] counsel emailed [Mixter] to advise that Dr.
(continued . . . )
83
Mixter excepts to Judge Doory’s finding that the Motion to Compel answers to
interrogatories and the production of documents from the opposition in the Greenstein
litigation was frivolous, because Judge Doory had improperly relied upon “an order entered
by Judge Fader in reference to Respondent’s motion to compel”. The Fader Order,
contained in Mixter’s files from Greenstein received into evidence as Petitioner’s Exhibit
14, in emphasized print, denied the Motion to Compel because, “There is no satisfactory
(continued . . . )
Barnes was available for deposition at 10:00 or 11:00 on July 15th. . . .
d. On July 14, 2011, staff from [Mixter’s] office began calling defense
counsel inquiring as to the timing of the July 15th deposition. During
those conversations, [defense counsel’s] assistant advised that [their]
office had the deposition calendared to start at 10:00 a.m., but offered to
try and move it earlier, to 9:30 a.m. . . .
e. On the morning of July 15th . . . [Mixter] called [defense] counsel’s office
several times to confirm a 9:30 a.m. start time for the deposition. . . .
f. [Defense] counsel, Dr. Barnes, and the court reporter were set up and
ready to begin Dr. Barnes’ deposition at 9:30 a.m. Shortly after that time
. . . we called [Mixter’s] office to learn that he was not in the office but
there was apparently an AT&T teleconference scheduled so counsel
could participate from an undisclosed location. . . . [S]hortly before 9:45
a.m. all parties were joined on the AT&T conference call, at which time
[Mixter] refused to go forward citing some undisclosed conflict. . . .
g. Later that same day, [defense] counsel faxed [Mixter] a correspondence
confirming the above and requesting payment for the actual costs
associated with the aborted deposition . . .
h. On July 18, 2011, [Mixter] faxed the defense a unilateral demand that Dr.
Barnes’ reappear for a deposition.
i. . . . [Defense] counsel offered to reproduce Dr. Barnes for a third
deposition provided Plaintiffs would pay the actual costs associated with
the aborted second deposition. . . . [Mixter] made no further attempt to
avoid this dispute but, rather, filed the instant motion.
(emphasis in the original, internal citations omitted). At a motions hearing on a number of
open discovery motions before the Circuit Court, the hearing judge set the deposition date
for Mixter to complete his examination of Dr. Barnes.
84
certificate of good faith efforts to resolve the discovery dispute as required by the
Maryland Rules.” We, accordingly, overrule this exception.
Mixter also notes an exception to Judge Doory’s finding that the Motion to Dismiss
and/or for Sanctions for Plaintiff’s Complete Failure to Provide Discovery in the Koontz
litigation was a frivolous motion directed at the opposing party. Judge Doory found that
Mixter had not acted in good faith by creating the discovery dispute, because Mixter had
made unreasonable demands of his opposition, attempted to enforce those demands without
any good faith effort at conciliation and, further, that Mixter had not presented evidence
that the opposition refused to agree to his demands:
The Respondent propounded discovery on the Plaintiffs, the discovery
requested sensitive medical and financial information. The Plaintiffs asked
the Respondent to enter into a confidentiality agreement which would not in
any way preclude his receipt of discoverable information but rather limit the
disclosure or redisclosure of sensitive information. The Respondent refused
to enter into a confidentiality agreement and the Plaintiffs filed a Motion for
Protective order on August 11, 2009. On August 25, 2009, the Respondent
filed a motion to compel discovery. By Order entered September 18, 2009,
the court denied the Respondent’s motion to compel and ordered that the
Plaintiffs “shall provide the requested discovery upon execution of an
appropriate protective order to maintain confidentiality of medical and
financial records.” On September 28, 2009, the Respondent filed a motion
for reconsideration of the order. On October 8, 2009, the Respondent
forwarded an executed Stipulation regarding confidentiality to the Plaintiffs
and demanded that the outstanding discovery be provided “within 5 business
days.” Less than two weeks later, the instant motion was filed. In addition
to being filed prematurely, without allowing the Plaintiff time to produce the
requested information, the motion was filed without any good faith efforts to
resolve the discovery dispute and the relief sought, dismissal and sanctions,
is not contemplated under the Maryland Rules. Where there has been a
response to discovery, albeit incomplete, the only remedy is a motion for an
order compelling discovery. See Rule 2-432. In the Motion, the Respondent
states that the Plaintiffs “refuse to produce the discovery.” There is no
evidence that, once the confidentiality agreement was signed, the Plaintiffs
refused to produce the information and documentation requested.
85
Mixter’s assertion, however, is that he had submitted the confidentiality agreement “nearly
two weeks before the motion to dismiss was filed” and that “[t]he plaintiffs should have
been prepared to provide discovery responses upon receipt of the executed confidentiality
agreement sought at their request.” Mixter’s files reflect that, contrary to Mixter’s
assertions, the plaintiffs had provided the requested discovery on October 26, 2009, which
he believed to be inadequate. There is no documentation in the file, however, that
demonstrates Mixter had acted in good faith to resolve the myriad of discovery issues. We
overrule Mixter’s exception to Judge Doory’s finding that the Motion to Dismiss was a
frivolous motion directed at the opposing party.
Mixter notes an exception to Judge Doory’s finding that the Motion to Compel
answers to interrogatories and the production of documents from the defendant filed in
Presbury was frivolous, because, he argues, the motion was not premature. Judge Doory
had found that the Motion to Compel was frivolous, because it was filed with a false
certification that good faith efforts had been made to resolve the discovery dispute.
Mixter’s files from Presbury indicate that only one letter had been sent from Mixter to the
opposition in an attempt to resolve the dispute, to which the opposition replied in an effort
to address the outstanding issues. Mixter’s files show that he had neither conciliated further
nor described nor referenced the “letter from opposing counsel informing him that, due to
the fact the defendant was an out-of-state corporation, the discovery responses were not
yet due”, in his Motion to Compel, as required by Maryland Rule 2-431. We, accordingly,
overrule this exception.
86
Mixter also excepts to Judge Doory’s finding that the Motions to Compel
Supplemental Discovery, to Compel Supplemental Answers to Interrogatories, for Default
Judgment and Other Sanctions and to Compel Supplemental Discovery Concerning Expert
Witnesses, all filed against the defense in Railey, were frivolous, because Judge Doory had
improperly based his finding upon an opinion by the Circuit Court for Washington County
in the case. The opinion, within Mixter’s files from Railey that had been received into
evidence as Petitioner’s Exhibit 25, provided, with regard to all four motions, that “Mixter
and the Plaintiff proceeded in this case in bad faith and without substantial justification”.
We overrule Mixter’s exception.
Mixter notes an exception to Judge Doory’s finding that he had omitted material
correspondences in the Motion to Hold in Contempt Whole Foods Market, filed on July
23, 2010, during the Alemu litigation, because “[t]he correspondence between Respondent
and Whole Foods are set forth as exhibits to the motion.” In an internal memorandum,
included in Mixter’s files, written from “Donna” to Mixter on May 18, 2010, she explained
that “[Whole Foods’s Attorney] is very cooperative and wants to do everything she can to
comply with the subpoenas/orders.” The phone call is mentioned only in an exhibit
attached to the Motion to Hold in Contempt, but without its substance or a description of
Whole Foods’s concerns, despite the requirements of Maryland Rule 2-431. We,
accordingly, overrule this exception.
Mixter excepts as well to Judge Doory’s finding that the Motion for Protective Order
to preclude the Alemu plaintiff from taking a de bene esse deposition of Dr. Danziger,
included a misrepresentation by omission. Judge Doory had found that Mixter had made
87
the misrepresentation by omission by not attaching to the Motion for Protective Order, or
otherwise describing, correspondences from opposing counsel, as required by Maryland
Rule 2-431. Mixter’s records from Alemu show that the Motion for a Protective Order
included only Mixter’s letters to opposing counsel, without inclusion of the return
correspondence, which indicated that attempts had been made to resolve the dispute. We
overrule this exception.
Mixter notes an exception to Judge Doory’s finding that the Motion to Compel
production of documents from the custodian of records of Neil J. Fagan, an attorney and
putative deponent in Gonzales, contained a misrepresentation by omission to the Circuit
Court for Montgomery County and that the motion was frivolous. Judge Doory found that
Mixter had requested documents from Mr. Fagan that Mr. Fagan had previously turned
over to the plaintiff’s attorney in Gonzales and that Mixter had omitted that Mr. Fagan had
notified Mixter that he was no longer in possession of the requested documents before
Mixter filed the motion on November 19, 2009. Mixter argues in his exception, however,
that “[i]t was immaterial that Mr. Fagan provided the documents responsive to
Respondent’s requests to [plaintiff’s counsel] because the simple fact remains that the
requested documents were not provided to Respondent in accordance with the subpoena.”
A review of Mixter’s files, however, shows that, according to a letter written by Mixter on
November 30, 2009, to both Mr. Fagan and the plaintiff’s attorney, Mixter acknowledged
that he had, on November 11, 2009, received documents responsive to the subpoena from
88
the plaintiff’s attorney.64 We, accordingly, overrule Mixter’s exception as to a material
omission having been made to the Circuit Court for Montgomery County.
Mixter’s records, furthermore, contain only the standard cover letter, discussed
supra, as what he purported represented a good faith attempt at resolution of the dispute
with Mr. Fagan prior to filing the Motion to Compel, but without any mention of the
assurance from Mr. Fagan that he no longer had the documents nor any reference to
Mixter’s having received any documents responsive to the subpoena. We, accordingly,
overrule this exception.65
Mixter excepts to Judge Doory’s finding that he had “misrepresented a Court’s
Order when he filed a Motion for Sanctions”, while representing the plaintiff in Canby. In
Canby, a dispute arose regarding whether the defendant’s insurance representative had to
be present at various pre-trial proceedings. Judge Doory found that Mixter had acted in
derogation of a court order exempting the insurance representative’s personal appearance
at one such proceeding. Upon review, the defendant conceded that no order exempting the
insurance representative’s appearance had yet been entered at the time Mixter filed the
Motion for Sanctions. We sustain this exception.
Mixter next excepts to Judge Doory’s finding that, in the Pearson litigation, he had
obstructed access to evidence by sending to Ms. Pearson’s medical providers letters telling
64
In the November 30, 2009 letter, Mixter asserted that he could not accept the documents
from plaintiff’s counsel, despite the fact that they were admittedly “responsive to the
enclosed subpoena.”
65
The Circuit Court Judge ultimately denied the Motion to Compel, according to an entry
on the docket sheet for Gonzales included in Mixter’s files.
89
them not to speak to opposing counsel. Mixter argues that, technically, his actions did not
violate the Circuit Court’s order allowing ex parte communications. However, as Judge
Melanie Shaw Geter found during the Pearson litigation and Judge Doory observed, “the
Respondent’s letters to the healthcare providers ‘thwarts the spirit of [the] order’”. Further,
as discussed above, Judge Doory properly found that Mixter had intentionally sought to
prevent the physicians from speaking to opposing counsel. We, therefore, overrule this
exception.
Mixter also notes an exception to Judge Doory’s finding that he had brought and
pursued the Railey litigation in bad faith, because opposing counsel “had no idea as to what
information Ms. Railey had presented to Respondent prior to the filing of the lawsuit.”
Mixter also excepts to Judge Doory’s finding that pursuing the Railey litigation against Leo
Cline had been in bad faith, because it was defense counsel’s “refus[al] to draft the Line of
Dismissal” that kept Mr. Cline in the litigation. We sustain Mixter’s exception as far as
the record does not show he had brought the litigation in bad faith.
The basis for Judge Doory’s finding, however, was that the Circuit Court Judge had
determined that the deposition of Ms. Railey, Mixter’s client, had been “devastating” to
her claim against the Cochran Defendants and that, after her deposition, Mixter should have
dismissed the Cochran Defendants from the suit. Judge Doory had relied upon an
unreported opinion from the Court of Special Appeals, included in Mixter’s records from
the Railey litigation, in which the intermediate appellate court vacated the Circuit Court’s
denial of the Cochran Defendants’ motion for sanctions against Mixter. In the opinion, the
Court of Special Appeals noted that “in her deposition, Ms. Railey appeared to undermine
90
the factual bases for many of the counts in the complaint” and that the Cochran Defendants
had appeared “to generate a genuine issue as to the frivolous nature of some of [the] various
motions, notices of deposition, and subpoenas advanced by [Mixter].”
Furthermore, Mixter does not contend that there was any good faith basis to
continue to maintain a suit against Mr. Cline, but, rather, that it was opposing counsel’s
responsibility to draft the line of dismissal that Mixter would file. Mixter’s letter regarding
dismissal of Mr. Cline was included in Petitioner’s Exhibit 24, which is one of the two
volumes of Mixter’s files from the Railey litigation. The letter shows that Mixter was
aware that the action against Mr. Cline was baseless, but that he would only dismiss the
action were opposing counsel to write the line of dismissal, as retribution for opposing
counsel’s threat to request costs and attorneys’ fees for Mixter’s bad faith pursuit of the
Railey litigation:
While I am willing to dismiss Mr. Cline from the litigation, you should know
that we based our assertions against Mr. Cline based on information gleaned
from your client that Mr. Cline had conducted a part of the auction held on
June 28, 2008. Furthermore, I don’t appreciate your Rule 1-341 threat. If
you want to prepare the paperwork vis-à-vis Mr. Cline, I will agree to a
dismissal (without prejudice) and we can proceed.[66]
66
Maryland Rule 1-341 provides, in pertinent part:
Rule 1-341. Bad faith – Unjustified proceeding
(a) Remedial Authority of Court. In any civil action, if the court finds that
the conduct of any party in maintaining or defending any proceeding was in
bad faith or without substantial justification, the court, on motion by an
adverse party, may require the offending party or the attorney advising the
conduct or both of them to pay to the adverse party the costs of the
proceeding and the reasonable expenses, including reasonable attorneys’
fees, incurred by the adverse party in opposing it.
91
We, accordingly, overrule Mixter’s exception to Judge Doory’s finding that pursuing the
Railey litigation was frivolous.
Mixter notes an exception to Judge Doory’s finding that he used the Varner opinion
issued in 1993 by Judge Messitte, at the time a Judge of the Circuit Court for Montgomery
County, to create discovery disputes and rattle witnesses. Judge Doory found that the
Varner opinion “explains that the treating physician for a plaintiff cannot charge a fee for
deposition or trial that is greater than the fee charged for the physician’s usual and
customary office practice.” Mixter testified at length before Judge Doory about his practice
of regularly including the Varner opinion with his subpoenas to opposing experts. When
asked by Bar Counsel whether it was his “intention to tell anyone, especially an expert
witness, that the Varner decision was an appellate decision that was controlling”, Mixter
replied that he had not. Mixter agreed, however, that he regularly included the Varner
opinion with letters to opposing experts informing them that it would control the method
by which their fees would be determined, even though it was twenty years old and issued
by one circuit court judge, prior to Kilsheimer v. Dewberry & Davis, 106 Md. App. 600,
665 A.2d 723 (1995), an opinion issued by the Court of Special Appeals, which was
92
controlling at all relevant times that Mixter had sent the Varner opinion to opposing
experts.67 We do not disturb Judge Doory’s finding that Mixter had intentionally used the
Varner opinion to mislead experts and attempted to gain an unfair advantage, because we
defer to his credibility determinations. Agbaje, 438 Md. at 722, 93 A.3d at 277. We,
therefore, overrule this exception.
Mixter excepts to Judge Doory’s finding that the Circuit Court Judge in Byrne-Egan
had granted Mixter’s “Motion for Contempt and for Show Cause Order, or, in the
Alternative, Motion in Limine to Preclude Matthew Mulqueen from Testifying at Trial”,
filed on March 16, 2012, based upon misrepresentations made by Mixter in the motion that
Mr. Mulqueen had been properly served with subpoenas for depositions scheduled for
October 12, 2011: Mixter asserted that Mr. Mulqueen had “been properly served with a
67
Mixter’s files from Dunston contain a memorandum opinion by the Judge Lawrence P.
Fletcher-Hill for the Circuit Court for Baltimore City in which Judge Lawrence, in denying
one of Mixter’s motions to hold an expert in contempt and to set the expert’s fee, identified
the flaws with Mixter’s use of Varner:
As discussed, Defendants rely heavily on the Revised Order in Greater
Washington Orthopaedic Group, P.A. v. Varner. The very short answer to
Defendants’ reliance on this order as controlling in this case is that it is a non-
binding order of another Circuit Court issued almost twenty years ago. It is
persuasive authority at most. In addition, it was limited by its terms to
treating physicians who are called upon to testify in that capacity. More
important, it pre-dates Kilsheimer, which is binding on this Court, and the
2003 revisions to what is now Maryland Rule 2-402(g)(3) [which provides
that experts are to be paid a “reasonable fee”]. Those authorities require the
Court to examine reasonableness more broadly.
(footnote omitted).
93
subpoena and notice of deposition, [but] failed to appear for his October 12, 2011
deposition in this matter.” In fact, however, the subpoena called for Mr. Mulqueen’s
attendance on November 14, 2011, rather than October 12, 2011.68 Mr. Mulqueen did not
appear on October 12, 2011, which precipitated Mixter sending a notice to take deposition
on October 26, 2011, which he asserts was sufficient to establish a deposition on January
12, 2012, although the date on the notice was blank:
We previously scheduled your deposition in the above-captioned case
(in which you have been identified as a potential witness by Ms. Byrne-Egan)
for October 12, 2011. . . . Thus, you are in violation of the subpoena and
notice of deposition which was previously served upon you.
Accordingly, we have rescheduled your deposition for [blank]. Please
call me to confirm your attendance at the deposition on that date and time.
On December 9, 2011, Mixter issued a subpoena for a deposition on January 17,
2012, at which Mr. Mulqueen did not appear. Mixter’s files contain two undated green
cards, which Mixter asserts were returned from the two subpoenas at issue in the Motion
for Contempt. These facts do not show by clear and convincing evidence that Mixter made
a material misrepresentation that Mr. Mulqueen had been properly served with deposition
subpoenas. We sustain this exception.
With the exception of the four exceptions alleged by Mixter to the findings of fact
that have been sustained, we determine that Judge Doory’s findings were based on clear
68
Mixter, as reflected in his files, had attached to his Response to the Answer to the Motion
for Contempt a subpoena commanding Mr. Mulqueen to appear at Mixter’s office on
November 14, 2011 at 12:30 p.m. Mixter had also included, in his response, a letter
allegedly faxed from his office to opposing counsel dated October 11, 2011, requesting Mr.
Mulqueen’s telephone number so that Mixter could contact him “and find out if [he is]
going to be present on [the following day] for the deposition.”
94
and convincing evidence and now turn to the exceptions Mixter filed with respect to Judge
Doory’s conclusions of law.
B. Mixter’s Exceptions to Judge Doory’s Conclusions of Law
Mixter excepts to Judge Doory’s conclusion that he violated Rule 3.1, which
requires that “[a] lawyer shall not bring or defend a proceeding, or assert or controvert an
issue therein, unless there is a basis for doing so that is not frivolous”, by filing each of the
one hundred and twenty-seven motions listed in Appendices 2, 3 and 5, as well as pursuing
the Railey litigation. Judge Doory concluded:
The Court finds that each of the frivolous motions the Respondent
filed as discussed herein is a violation of Rule 3.1. Additionally the Court
finds that the Respondent’s bringing and pursuing the Railey litigation
violates Rule 3.1. Failure to promptly dismiss the Defendant Leo Cline is
particularly egregious.
Mixter alleges that he did not violate Rule 3.1, because the motions were only
inaccurate, rather than frivolous, under Maryland Rule 1-341. Mixter concedes, however,
that “some of his motions to compel did not have the appropriate documentation attached
or in some instances failed to reference the full extent of the additional good faith efforts
Respondent took to obtain his discovery before filing the motion,” but maintains that, “this
was through inadvertence and not with the intention to mislead any court”. He also posits
that the motions were not frivolous, because they raised meritorious claims.
With respect to sixty-one of the motions identified by Judge Doory in Appendix 2
as “Frivolous Motions Directed at Non-Party Witnesses”, for which the evidence was clear
and convincing, Judge Doory found that they “were frivolous because no valid subpoena
was ever served on the witness; there was either no proof of service of the subpoena, or the
95
subpoena was ineffective as of the date of service because it did not provide the witness
the requisite 30 days to produce documents as required by Maryland Rule 2-412(c).”
Mixter had filed and pursued the motions by misrepresenting to the various courts that the
underlying subpoenas had been served or that the subpoenas provided sufficient time for
the production of documents that were being compelled.
Judge Doory also identified the twenty-four motions contained in Appendix 3 as
frivolous, based on clear and convincing evidence, because they were directed at out-of-
state witnesses and “the court in which they were filed had no jurisdiction over the non-
party witness and their failure to comply with a Maryland subpoena, as such, the grounds
for each of the motions was without merit.” Judge Doory found that, in order to support
enforcement of the subpoenas, Mixter misled the various circuit courts by omitting the
states of residence of the parties under compulsion, knowing that they were out-of-state
witnesses, to avoid notifying the Maryland judges that additional protocols were required.
According to Judge Doory, Mixter, in the subpoenas he had issued, also had misrepresented
to the out-of-state recipients that their appearance could be compelled in Maryland, even
though under our Rules, their appearance could not be.
With respect to forty-one of the motions listed in Appendix 5, Judge Doory relied
on clear and convincing evidence that they “were frivolous because the Respondent either
failed to make any good faith efforts to resolve the discovery disputes or the filings were
filed prematurely or otherwise [did] not comply with the Maryland Rules.” Under
Maryland Rule 2-431, Mixter—like any other attorney—was required to engage in good
96
faith efforts to resolve discovery disputes prior to filing motions to compel or for sanctions,
which he failed to do, coupled with misrepresentations that he had done so.
Mixter had attempted to enforce over one-hundred and twenty unenforceable
subpoenas through meritless motions to compel in order to, as Judge Doory found, coerce
his opposing parties into compliance with his excessive discovery requests by
“bludgeoning [them] with . . . frivolous motions”. Mixter’s behavior was violative of Rule
3.1. See Attorney Grievance v. Gisriel, 409 Md. 331, 356-57, 974 A.2d 331, 346 (2009)
(“The legal process should never be used as the Respondent did here, i.e., merely a device
to apply pressure to the other parties . . . .”).
Judge Doory also found, based upon clear and convincing evidence, with respect to
the Railey litigation, that Mixter had pursued the suit “in bad faith and without substantial
justification”, because Mixter knew that his client’s deposition undercut the asserted
claims. Rule 3.1 requires that attorneys “inform themselves about the facts of their clients’
cases and the applicable law and determine that they can make good faith arguments in
support of their clients’ positions.” Gisriel, 409 Md. at 355, 974 A.2d at 345, citing Rule
3.1 cmt.2. Mixter violated Rule 3.1, by continuing to pursue the Railey litigation after it
became clear that there was no good faith basis for doing so. Accordingly, we overrule
Mixter’s exceptions with respect to Rule 3.1.
Mixter excepts to Judge Doory’s conclusion that he had violated Rule 3.2, which
requires that an attorney “make reasonable efforts to expedite litigation consistent with the
interests of the client”, because:
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filing of frivolous motions, requesting hearings on every motion and
opposition filed, generally acting in an obstructionist manner[,] failing to
cooperate with opposing counsel in the orderly taking of discovery including
exchanging written discovery and taking depositions, creating protracted fee
disputes with experts and causing confusion for opposing parties, witnesses
and the courts all knowingly and purposefully delays litigation and cannot be
said to be in the best interest of the client.
“The effect of the Respondent’s conduct”, Judge Doory found, is that “the court dockets
are clogged and the ordinary and proper resolution of claims is delayed.”
Mixter argues that Judge Doory erred, because “there is no evidence [that]
Respondent’s conduct delayed the litigation in any of the 22 cases at issue.” He further
contends that, “It is without merit to critique Respondent for routinely requesting a hearing
on the motions he filed”, because it was for the courts to determine if the hearings were
warranted. Mixter asserts that Rule 3.2 only applies upon a finding that a case was delayed,
citing Attorney Grievance Commission v. Hermina, 379 Md. 503, 842 A.2d 762 (2004), or
only “to scenarios where either counsel did very little to advance his own client’s claim or
totally failed to participate in discovery”, citing Attorney Grievance v. Steinberg, 395 Md.
337, 910 A.2d 429 (2006).
We have interpreted Rule 3.2 violations to include a situation in which an attorney
pursued “unwarranted motions . . . thereby frustrating the opposing party’s attempt to
obtain rightful redress.” Attorney Grievance v. McClain, 406 Md. 1, 14, 956 A.2d 135,
142 (2008). In McClain, the hearing judge found, based upon clear and convincing
evidence, that McClain had engaged in tactics that were not geared towards expediting
litigation, such as filing meritless motions in order to hinder the partition sale of his client’s
property. We determined that McClain violated Rule 3.2, because his motivation for filing
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the unwarranted motion was “to prevent the sale of the property, thereby frustrating the
opposing party’s attempt to obtain rightful redress.” Id. We also have indicated that Rule
3.2 may be the basis for discipline when an attorney files meritless recusal motions. See
Surratt v. Prince George’s County, 320 Md. 439, 468, 578 A.2d 745, 759 (1990) (“[A]
motion that turns out to be totally without basis in fact . . . could be the subject of lawyer
disciplinary proceedings”, citing Rule 3.2).
Delay is not the dispositive issue under Rule 3.2,69 unlike what Mixter asserts.
Judicial resources squandered on unnecessary motions, with the attendant waste of time
and money experienced by opposing parties, are within the purview of Rule 3.2, as some
of our sister courts have recognized.
In Obert v. Republic Western Ins. Co., 264 F. Supp. 2d 106, 110 (D.R.I. 2003), two
of the attorneys for Republic Western Insurance Company had been admitted pro hac vice
and subsequently were ordered to show cause why that status should not be revoked “based
69
In Hermina, the hearing judge determined that Hermina violated Rule 3.2 “by effectively
failing to participate in the pre-trial conference” even though such failure “had no real
effect on the trial.” Hermina, 379 Md. at 519, 842 A.2d at 771. We sustained Hermina’s
exception that he did not violate Rule 3.2, because the hearing judge explicitly found that
there had been no delay. On the contrary, here, Judge Doory found that Mixter’s practice
regularly delayed litigation. As a result, Hermina is inapplicable.
In Steinberg, the attorney “engaged in a pattern of delay” by failing to return phone
calls and letters and cited “cryptic excuses for [his] lack of communication,” causing “the
scheduling of hearings or meetings without Steinberg’s cooperation or input.” 395 Md. at
365, 842 A.2d at 446. Steinberg also “displayed an unwillingness to comply with
discovery”, by cancelling depositions the evening before they had been scheduled. Id. at
366, 842 A.2d at 446. Steinberg’s failure to communicate and unwillingness to comply
with discovery violated Rule 3.2.
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on their actions in pursuit of an unsuccessful motion to recuse that they filed on behalf of
their client” in the District Court. The District Court referred the matter to a magistrate
judge who concluded that the attorneys had impermissibly diverted the court’s resources
when they “filed an untruthful affidavit in support of the frivolous motion to disqualify” in
violation of Rule 3.2 of the Rhode Island Rules of Professional Conduct.70 Id. at 116. The
District Court accepted the magistrate’s recommendation and revoked the attorneys’ pro
hac vice status. See also In re Disciplinary Action against Murrin, 821 N.W.2d 195, 210
(Minn. 2012) (Murrin violated Minnesota Rules of Professional Conduct 3.271 and 8.4(d),72
by engaging “in a pattern of seemingly endless pleadings that contained frivolous claims
and were unnecessarily burdensome in length, violated court orders, wasted courts’
resources, delayed litigation, and prejudiced the administration of justice.”); State ex rel.
Okla. Bar Ass’n v. Godlove, 318 P.3d 1086, 1090 (Ok. 2013) (Godlove violated Rule 3.273
of the Oklahoma Rules of Professional Conduct by not expediting litigation when she
70
Rule 3.2 of the Rhode Island Rules of Professional Conduct provides:
A lawyer shall make reasonable efforts to expedite litigation consistent with
the interests of the client.
71
Rule 3.2 of the Minnesota Rules of Professional Conduct provides:
A lawyer shall make reasonable efforts to expedite litigation consistent with
the interests of the client.
72
Rule 8.4(d) of the Minnesota Rules of Professional Conduct provides, in relevant part:
It is professional misconduct for a lawyer to . . . engage in conduct that is
prejudicial to the administration of justice.
73
Rule 3.2 of the Oklahoma Rules of Professional Conduct provides:
A lawyer shall make reasonable efforts to expedite litigation consistent with
the interests of the client.
100
pursued “at least six cases and at least twenty-four pleadings” frivolously attacking a court
order and by not adhering to the rules of procedure on at least seventeen occasions in which
she sought recusal of an assigned judge).
Mixter violated Rule 3.2 by filing over one hundred and twenty frivolous motions,
which wasted valuable resources of the courts and the parties. His reliance on Steinberg is
unavailing.
Mixter also excepts to Judge Doory’s conclusion that he had violated Rules 3.3(a)(1)
and (a)(4). Rule 3.3(a)(1) requires that a lawyer not knowingly “make a false statement of
fact or law to a tribunal or fail to correct a false statement of material fact or law previously
made to the tribunal by the lawyer”. Rule 3.3(a)(4), similarly, requires that a lawyer shall
not knowingly “offer evidence that the lawyer knows to be false”, and, that if a lawyer
offers “material evidence and comes to know of its falsity, the lawyer shall take reasonable
remedial measures.”
Judge Doory concluded Mixter violated Rules 3.3(a)(1) and (4) by regularly making
“false statements of material fact to the courts”, as well as with “the specific
misrepresentations to the court outlined in the section entitled ‘Misrepresentations and
Disregard for Court Orders and Directives’” and by “routinely misrepresent[ing] that out-
of-state witnesses were subject to the jurisdiction of Maryland courts, valid subpoenas were
issued and properly served, dates of service, that he made good faith efforts to resolve
discovery disputes prior to filing motions and that opposing parties or non-party witnesses
had refused to respond to his efforts to resolve discovery disputes.”
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Mixter urges that he did not violate Rules 3.3(a)(1) and (4) because the record is
devoid of any false statement of fact that he made to the courts. Mixter also argues that
“where the documentation attached to Respondent’s motions to compel were inaccurate,
the fact the documentation was attached proves Respondent did not intend to mislead the
court and certainly establishes that there was not the requisite scientor [sic] to deceive the
court when filing these motions.”
Judge Doory found, in any event, by clear and convincing evidence, that Mixter had
knowingly and intentionally made misrepresentations to various courts, to include: falsely
asserting in the twenty-four motions listed in Appendix 3 that the opposing parties were
properly served with subpoenas outside of Maryland; falsely certifying in the fifty-three
certifications listed in Appendix 6 that he had engaged in good faith efforts at resolving
discovery disputes; willfully omitting material information in connection with the twelve
motions listed in Appendix 7; in the Byrne-Egan litigation, writing a letter to Judge Motz,
in the United States District Court for the District of Maryland, in which he “knowingly
and intentionally mischaracterized and misrepresented” the content of the opposition’s
motion; in the Byrne-Egan litigation, also failing to inform the court, in his response to the
court’s Show Cause Order for Contempt, that a motion for a protective order as to the third-
party defendant’s mental health records was pending when he sought those same records;
in the Davis litigation, filing a false affidavit in the United States District Court for the
District of Maryland in which he asserted that the defendants had been properly served
with copies of the complaint; in Green, writing letters to the clerk of the court demanding
that hearings on at least five motions were required while omitting that the opposition had
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requested that the motions be ruled on without hearings and that some of the motions were
not yet ripe; in the Johnson litigation, sending a letter to the clerk of the court “informing
the Clerk that his Motion to Compel was unopposed, though he knew that the plaintiff had
filed a timely opposition to Respondent’s Motion to Compel”; in Keener, misrepresenting
to the Court of Special Appeals that it was only due to a typographical error that he had
falsely framed the procedural history of the suit; in Mixter, asserting that a witness’s
discovery responses were overdue when, in fact, the witness had been served only three
days prior to the date the motion was filed; and, in Mixter, also alleging that Dr. Conte had
been properly served with a subpoena for documents when Mixter had filed the motion to
compel on the same day he had mailed the subpoena underlying the motion to compel the
production of documents from Dr. Conte.
As Judge Doory found, Mixter knew that he was making misrepresentations to
numerous courts, parties and witnesses. We, accordingly, overrule Mixter’s exception to
Judge Doory’s conclusion that he had violated Rules 3.3(a)(1) and (4).
Mixter also excepts to Judge Doory’s conclusions that he had violated Rules 3.4(a),
(c), (d) and (f). Rule 3.4(a) requires that an attorney not “unlawfully obstruct another
party’s access to evidence”. Judge Doory concluded that “the Respondent violated Rule
3.4(a) by obstructing the [plaintiff’s expert’s] access to evidence [for testing] and thereby
facilitating his client in the destruction of evidence in the Chineme case.” Mixter, however,
posits that he did not violate Rule 3.4(a) because, “There is absolutely no evidence on this
record that Respondent instructed his client to modify the property in question in any way”.
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We overrule Mixter’s exception. Judge Doory had before him clear and convincing
evidence that, in the Chineme litigation, Mixter’s opposition filed a Request for Entry upon
the Premises and the parties, thereafter, agreed to allow the expert to enter the premises to
take the necessary samples and, that once the expert entered the premises, Mixter blocked
the expert from gathering specimens required for testing. Mixter, therefore, obstructed
access to evidence and, thereby, its preservation, in violation of Rule 3.4(a).
Judge Doory concluded also that Mixter violated Rule 3.4(c), which requires that
an attorney not “knowingly disobey an obligation under the rules of a tribunal”, by
“knowingly disobeying the rules of procedure as outlined” and by “knowingly and
intentionally disobey[ing] specific court orders and directives as stated in the section
entitled ‘Misrepresentations and disregard for Court Orders and Directives’”. Mixter
knowingly and intentionally: issued Maryland subpoenas to out-of-state witnesses, in
violation of Maryland Rule 2-413(a)(2), while simultaneously violating the rules of various
foreign jurisdictions, on the more than fifty occasions listed in Appendices 3 and 4; failed
to follow the proper protocol per Section 4-306 of the Health-General Article of the
Maryland Code in order to obtain medical records from health care providers; submitted
the fifty-three Maryland Rule 2-431 certificates listed in Appendix 6 without having
engaged in good faith attempts at resolving discovery disputes; issued subpoenas that
provided less than thirty days for document production as required by Maryland Rule 2-
412(c); delivered subpoenas by first-class mail, in violation of Maryland Rule 2-121(a)(3);
attempted to prove service with falsified green cards, or without green cards altogether,
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contrary to Maryland Rule 2-126(a)(3); and noted depositions of in-state witnesses in
improper counties as delineated by Maryland Rule 2-413(a)(1).
Mixter excepts to Judge Doory’s conclusion that he had violated Rule 3.4(c) on the
same bases as his factual exceptions, that being that he did not knowingly disobey court
orders or Maryland Rules, which we have already overruled. As a result, we overrule
Mixter’s exception.
Under Rule 3.4(d), it is professional misconduct to “make a frivolous discovery
request”. Judge Doory concluded that Mixter violated Rule 3.4(d), because he “abused his
authority, as an officer of the court, to issue frivolous subpoenas and make frivolous
discovery requests and demands”. Mixter excepts on the basis that Judge Doory
improperly found that the various subpoenas and discovery requests were frivolous.
We already have recognized that Judge Doory had before him, clear and convincing
evidence, that: sixty-one of Mixter’s discovery motions directed at non-party witnesses
listed in Appendix 2 were frivolous, because “no valid subpoena was ever served on the
witness; there was either no proof of service of the subpoena, or the subpoena was
ineffective as of the date of service because it did not provide the witness the requisite 30
days to produce documents as required by Maryland Rule 2-412(c)”; the twenty-four
motions listed in Appendix 3 were frivolous discovery motions, because they sought to
enforce Maryland subpoenas improperly served on out-of-state, non-party witnesses,
through misrepresentations that the witnesses were properly served; the thirty-five
subpoenas listed in Appendix 4 were frivolous, because they sought documents depositions
of out-of-state, non-party witnesses, without complying with the applicable procedures, yet
105
misrepresented to the recipients that their attendance could be compelled; forty-two of the
discovery motions listed in Appendix 5 were frivolous, “because the Respondent either
failed to make any good faith efforts to resolve the discovery disputes or the filings were
filed prematurely or otherwise do not comply with the Maryland Rules”; and the motions
he had filed to compel the attendance of a witness at a deposition in the wrong county were
frivolous, because they violated Maryland Rule 2-413.
In ruling on the applicability of Rule 3.4(d) the Oklahoma Supreme Court faced a
similar situation in Godlove, 318 P.3d at 1092, with respect to their Rule 3.4(d).74
Underlying attorney Godlove’s case was a final order from an Oklahoma trial court naming
the trustees for the Lorice T. Wallace trust. Id. at 1089. Despite the final order, Godlove
“abused discovery by proceeding as if there had been no final determination of the
trustees.” Id. at 1091. The Oklahoma Supreme Court determined that Godlove violated
Rule 3.4(d) by filing numerous and irrelevant discovery requests. Mixter, similarly,
violated Rule 3.4(d) by filing nearly one-hundred motions to compel that were based upon
invalid subpoenas or contained false certifications to the various courts that he had
complied with Maryland Rule 2-431 and we, therefore, overrule his exception.
Mixter then excepts to the conclusion that he violated Rule 3.4(f). Rule 3.4(f)
requires that an attorney not “request a person other than a client to refrain from voluntarily
74
Rule 3.4 of the Oklahoma Rules of Professional Conduct provides, in relevant part:
A lawyer shall not:
***
(d) in pretrial procedure, make a frivolous discovery request or fail to make
reasonably diligent effort to comply with a legally proper discovery request
by an opposing party;
106
giving relevant information to another party”, with narrow exceptions, not applicable here.
Judge Doory found that Mixter violated Rule 3.4(f) by “requesting the plaintiff’s doctors
to not speak with defense counsel in Pearson” after the Circuit Court Judge, Judge Shaw
Geter, filed an Order allowing “that the attorneys for the parties to this lawsuit are permitted
to engage in ex parte discussions with [the healthcare providers].” According to Judge
Doory, based upon clear and convincing evidence, Judge Shaw Geter “found that while the
Respondent’s letters to the healthcare providers ‘thwarts the spirit of [the] order’ they did
not directly violate the order”.
Mixter asserts, in conclusory fashion, that he did not violate Rule 3.4(f), because
Judge Doory’s conclusion was “in correct [sic] on the facts and the law. Even [the Circuit
Court Judge in Pearson] found the letters did not violate her Order.”
With respect to Judge Doory’s conclusion that Rule 3.4(f) was violated when Mixter
sent the letter to the Pearson physicians, we recognize that the Health Insurance Portability
and Accountability Act (HIPAA), Pub. Law 104-191, 110 Stat. 1936 (1996), codified as
amended in scattered sections of Titles 18, 26, 29 and 42 of the United States Code, may
have been implicated. See Strayhorne v. Caruso, No. 11-15216, 2014 WL 916814, at *2
(E.D. Mich. Mar. 10, 2014) (collecting cases) (“The parties recognize, and other courts
have observed, that HIPAA neither permits nor prohibits such ex parte communications.”).
The record is not developed as to the HIPAA issue, however, because it was not raised by
Bar Counsel nor Mixter, as it was not before us. The sanction against Mixter remains the
same regardless of whether we overrule or sustain Judge Doory’s conclusion that Mixter
violated Rule 3.4(f). See Attorney Grievance v. Snyder, 368 Md. 242, 261, 793 A.2d 515,
107
526 (2002) (electing not to address an exception the merits of which were not argued before
the hearing judge, because “it would not bear on the attorney’s other violations and would
not affect the sanction to be imposed”). Therefore, we elect not to address the Rule 3.4(f)
violation.
Rule 4.1(a)(1) requires that the attorney not knowingly “make a false statement of
material fact or law to a third person”. Judge Doory concluded that Mixter violated Rule
4.1(a)(1) by making false statements of law to third parties regarding the enforceability of
Maryland subpoenas:
The Court finds that the Respondent violated Rule 4.1(a) in that he
made a false statement of law to third persons including: (1) stating, either
directly or by way of motion, to witnesses that they could be held in contempt
of court or subject to other sanctions for failing to appear at deposition where
the witnesses were never properly served with a valid subpoena; (2) stating
to non-party out-of-state witnesses that they were required to comply with a
Maryland subpoena; (3) stating to parties or witnesses that they were
compelled to appear for deposition at a location in violation of Rule 2-413.
Mixter asserts that he did not violate Rule 4.1, because he did not knowingly make
misrepresentations to third parties. Judge Doory had before him clear and convincing
evidence that Mixter knowingly had misrepresented to the recipients of the over fifty
subpoenas listed in Appendices 3 and 4 that their appearance could be compelled in
Maryland. Mixter also, as Judge Doory found, had misrepresented to numerous non-party
witnesses, located in Maryland, that they could be compelled to attend a deposition in a
county other than that in which they resided. Mixter, therefore, violated Rule 4.1(a)(1) on
more than fifty occasions, and we overrule this exception.
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Mixter asserts that he did not violate Rule 4.4(a), which states that an attorney “shall
not use means that have no substantial purpose other than to embarrass, delay, or burden a
third person, or use methods of obtaining evidence that the lawyer knows violate the legal
rights of such a person”, because his attempts to obtain medical records of various parties
only failed for want of Rule compliance, and they were not done with the purpose of
embarrassing, delaying or burdening a third person. Judge Doory concluded that Mixter
did violate Rule 4.4(a), because he had attempted to obtain medical records, mental health
records and driving records of opposing parties, in defiance of court orders and statutory
restrictions, when such information served no substantial purpose in the litigation:
The Court finds that the Respondent knowingly abused his authority,
as an officer of court, to routinely attempt to do discovery that has no
substantial purpose other than to embarrass, delay or burden the witnesses
and/or opposing party. The Court finds that the Respondent, knowingly and
intentionally sought medical records in violation of the HIPAA requirements
and/or the Health-General Article by failing to properly serve medical
providers with valid subpoenas and failing to send the required assurances
that no objection to the subpoenas had been made. Seeking psychiatric
records contrary to court orders and seeking lifelong traffic histories would
have no purpose other than to embarrass.
In McClain, 406 Md. at 15, 956 A.2d at 143, we determined that McClain had
violated Rule 4.4(a), even though “there was no suggestion that Respondent’s tactics were
intended to injure [the third party] nor that he or his client bore any ill-will towards [the
third party]”, because McClain’s actions “were pursued in total disregard for their
substantial cost to [the third party], were intentionally dilatory and were without legal
basis.” In the instant case, similarly, Judge Doory had before him clear and convincing
evidence that, during the litigation in his own case, Mixter had attempted “to harass and
109
intimidate the defendants” by requesting their entire driving histories under “a multitude
of disingenuous arguments”. As the Circuit Court Judge in Mixter stated, the driving
records “had absolutely nothing to do with the pending claim for defamation and that the
subpoena was aimed solely at harassing the defendant[s].” Mixter intentionally pursued
the defendants’ driving records without basis, causing his opposition to use time and
resources to obtain protective orders as to their driving records, and delaying litigation,
thereby violating Rule 4.4(a). See id.Judge Doory also had before him clear and convincing evidence that, in Byrne-
Egan, Mixter attempted to obtain the third-party defendant’s mental health records, despite
knowing that a motion for a protective order as to those records was pending. Even after
the protective order was granted, Mixter filed a motion to compel production of the third-
party defendant’s mental health records in which he misrepresented to the health care
provider that there had been no objection to the production of said records. Mixter’s acts
caused a useless waste of time and resources, in violation of Rule 4.4(a).
Judge Doory, finally, had clear and convincing evidence before him that, in Koontz,
Mixter had issued subpoenas and filed motions which delayed discovery and burdened the
opposition. Mixter had issued subpoenas to nineteen of the plaintiffs’ health care
providers, causing the plaintiffs to move for protective orders or to quash the subpoenas.
While the motion for protective order was pending, Mixter misrepresented to the medical
providers that there had been no objection to release of the records and filed motions to
compel against two health care providers. None of Mixter’s motions had any legal basis
and only served to delay litigation because they unnecessarily required the plaintiffs to
110
expend time and resources in addressing the motions and, therefore, violated Rule 4.4(a).
We overrule this exception.
Judge Doory also determined that Mixter violated Rule 8.4(c), which prohibits
“conduct involving dishonesty, fraud, deceit or misrepresentation”, because of Mixter’s
“usual pattern of practice . . . laden with deceit and consistent misrepresentations to the
courts, parties and witnesses of both fact and law”. Mixter, however, urges he did not
violate Rule 8.4(c), because there was not clear and convincing evidence that his actions
were “designed to bend or break the rules”.
Judge Doory found, by clear and convincing evidence, that Mixter had knowingly
and intentionally made many misrepresentations to the various courts, to include: falsely
asserting in the twenty-four motions listed in Appendix 3 that the oppositions were properly
served with subpoenas outside of Maryland; falsely certifying in the fifty-three
certifications listed in Appendix 6 that he had engaged in good faith efforts at resolving
discovery disputes; willfully omitting material information in connection with the twelve
motions listed in Appendix 7; in Alemu, by omitting from a Motion for Protective Order to
preclude the opposition from taking a de bene esse deposition of an expert, return
correspondence from opposing counsel indicating that attempts had been made to resolve
the dispute; in the Byrne-Egan litigation, writing a letter to Judge Motz, in the United States
District Court for the District of Maryland, in which he “knowingly and intentionally
mischaracterized and misrepresented” the content of the opposition’s motion; in the Byrne-
Egan litigation, also failing to inform the court, in his response to the court’s show cause
order for contempt, that a motion for a protective order as to the third-party defendant’s
111
mental health records was pending when he sought those same records; in the Davis
litigation, filing a false affidavit in the United States District Court for the District of
Maryland in which he asserted that the defendants had been properly served with copies of
the complaint; in Fitzgerald, by omitting from his Motion to Compel medical records from
the United States Department of Health and Human Services letters he had received from
the Department notifying him that he was required to first obtain the patient’s consent for
the release of the documents; in the Gonzales litigation, by omitting from his Motion to
Compel the production of documents from Mr. Fagan correspondences from Mr. Fagan
indicating that he had previously turned the requested documents over to Mixter’s
opposition; in Green, writing letters to the clerk of the court demanding that hearings on at
least five motions were required while omitting that the opposition had requested that the
motions be ruled on without hearings and that several of the motions were not yet ripe; in
the Johnson litigation, sending a letter to the clerk of the court “informing the Clerk that
his Motion to Compel was unopposed, though he knew that the plaintiff had filed a timely
opposition to Respondent’s Motion to Compel”; in Keener, misrepresenting to the Court
of Special Appeals that it was only due to a typographical error that he had falsely framed
the procedural history of the suit; in Mixter, asserting that a witness’s discovery responses
were overdue when, in fact, the witness had been served only three days prior to the date
the motion was filed; and, in Mixter, also alleging that Dr. Conte had been properly served
with a subpoena for documents when Mixter had, in fact, filed the motion to compel on the
same day he had mailed the subpoena underlying the motion to compel the production of
documents from Dr. Conte.
112
Mixter engaged in dishonest and misrepresentative actions in violation of Rule
8.4(c), and we overrule his exception.
Mixter, finally, excepts to Judge Doory’s conclusion that he violated Rule 8.4(d),
which requires that an attorney not “engage in conduct that is prejudicial to the
administration of justice”, because, he asserts, “There is no clear and convincing evidence
that Respondent’s actions are designed to bend or break the rules, nor are they designed to
bully, harass or intimidate both parties and witnesses.”
Judge Doory concluded that Mixter violated Rule 8.4(d), because his conduct
“without question, brings the profession into disrepute”:
Most assuredly, the Respondent’s conduct was prejudicial to the
administration of justice in violation of Rule 8.4(d). The Respondent’s
pattern of practice is to bend and break the rules to bully, harass and attempt
to intimidate both parties and witnesses.
***
The Respondent conducts discovery and pretrial depositions by
bludgeoning his opponents and witnesses with unreasonable demands,
frivolous motions and unnecessary acrimony. The effect of the Respondent’s
conduct is clear: his opponents and witnesses are forced to spend time and
money and expend emotional energy defending against his frivolous requests
and demands, the court dockets are clogged and the ordinary and proper
resolution of claims is delayed.
This is not a case of walking up to the line in the name of zealous
representation. This is a case of consistent knowing and intentional violation
of the Maryland Lawyers’ Rules of Professional Conduct. The Respondent’s
argument that his actions are defensible in the name of “zealous
representation” is rejected. Although zealousness is a standard of proper
representation, zealousness without the counterbalance of reasonableness
amounts to obstreperousness and unfairness. While the vigorous
representation of a client’s interests is laudable, the Court cannot condone
the Respondent’s conduct which, without question, brings the profession into
disrepute.
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Conduct that is prejudicial to the administration of justice is that which “‘impacts
negatively the public’s perception or efficacy of the courts or legal profession.’” Attorney
Grievance v. Dore, 433 Md. 685, 696, 73 A.3d 161, 167 (2013), quoting Attorney
Grievance v. Rand, 411 Md. 83, 96, 981 A.2d 1234, 1242 (2009). We have said that
“‘conduct prejudicial to the administration of justice’” should not be given a “‘restricted
meaning’” and that “‘the duty rests upon the courts, and the profession as a whole, to
uphold the highest standards of professional conduct and to protect the public from
imposition by the unfit or unscrupulous practitioner.’” Attorney Grievance v. Robertson,
400 Md. 618, 640-41, 929 A.2d 576, 589 (2007), quoting Rheb v. Bar Ass’n of Baltimore
City, 186 Md. 200, 205, 46 A.2d 289, 291 (1946). An attorney, finally, engages in conduct
prejudicial to the administration of justice when he or she files “frivolous motions,”
engages in “intentionally dilatory tactics” and makes repeated misrepresentations to the
courts. McClain, 406 Md. at 16, 956 A.2d at 144.
Mixter impugned the efficacy of the courts and the legal profession by making over
one hundred and twenty misrepresentations in twenty-two cases before numerous courts.
As an officer of the court, Mixter was expected to manifest integrity, but, instead, he
repeatedly made misrepresentations to various tribunals in an effort to abuse and browbeat
his opponents into complying with his excessive and unnecessary discovery requests.
Mixter, additionally, was abusive towards his colleagues at the Bar. In his own case,
Mixter pursued an action for defamation in an effort to harass opposing counsel from
previous suits, as well as those who had complained to Bar Counsel about his misbehavior.
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Mixter, also, sullied the reputation of the courts, the profession and the legal system
with the public as a result of his interactions with third parties. Mixter has conceded that,
“There certainly are examples where the person on the receiving end of Respondent’s
conduct may have felt harassed or even that Respondent was attempting to intimidate him
or her.” He also, regularly and unscrupulously attempted to obtain medical records
irrelevant to the various cases, (as with Ms. Seay’s mental health records in Byrne-Egan),
purely to harass members of the public. Rule 8.4(d) clearly prohibits such behavior. See
id. at 16, 956 A.2d at 144.
Finally, subsection (a) of Rule 8.4 states that it is professional misconduct to violate
the Rules; consequently, a Rule violation is itself sufficient to support a violation of Rule
8.4(a). Attorney Grievance v. Nelson, 425 Md. 344, 40 A.3d 1039 (2012). As stated above,
Mixter had repeatedly violated a copious number of Rules and had, therefore, violated Rule
8.4(a). In summary, Respondent violated Rules 3.1, 3.2, 3.3(a)(1) and (a)(4), 3.4(a), (c)
and (d), 4.1(a)(1), 4.4(a) and 8.4(a), (c) and (d).
C. Sanction
When determining appropriate sanctions, it is well settled that the purpose of
attorney discipline is to protect the public, not punish the attorney. Attorney Grievance v.
Coppola, 419 Md. 370, 19 A.3d 431 (2011). Attorney discipline is also directed at
deterring other lawyers from violating the Maryland Lawyers’ Rules of Professional
Conduct and to maintain the integrity of the legal profession. Attorney Grievance v.
Zuckerman, 386 Md. 341, 872 A.2d 693 (2005). We evaluate an attorney grievance matter
on its own merits and impose sanctions “that are commensurate with the nature and gravity
115
of the violations and the intent with which they were committed.” Attorney Grievance v.
Gore, 380 Md. 455, 472, 845 A.2d 1204, 1213 (2004). Therefore, we consider the nature
of the ethical duties violated in light of any aggravating or mitigating circumstances.
Attorney Grievance v. Sweitzer, 395 Md. 586, 911 A.2d 440 (2006).
With regard to aggravating factors, we often consult Standard 9.22 of the American
Bar Association Standards for Imposing Lawyer Sanctions. Attorney Grievance v. Hodes,
Misc. Docket AG No. 61, Sept. Term, 2013, slip op. at 66 (Dec. 23, 2014):
(a) prior disciplinary offenses;
(b) dishonest or selfish motive;
(c) a pattern of misconduct;
(d) multiple offenses;
(e) bad faith obstruction of the disciplinary proceeding by intentionally failing to
comply with rules or orders of the disciplinary agency;
(f) submission of false evidence, false statements, or other deceptive practices
during the disciplinary process;
(g) refusal to acknowledge wrongful nature of conduct;
(h) vulnerability of victim;
(i) substantial experience in the practice of law;
(j) indifference to making restitution;
(k) illegal conduct, including that involving the use of controlled substances.
Standard 9.22 of the American Bar Association Standards for Imposing Lawyer
Sanctions (1992).
Here, aggravating factors (a), (c), (d), (g) and (i) are present, because Mixter had
previously been reprimanded for abusive discovery tactics, some of which have been
replicated in this case, which include acts after 2008, when Mixter was previously
sanctioned. Mixter has also evidenced a clear pattern of misconduct over twenty-two cases,
has refused to acknowledge the wrongful nature of any of his actions and has substantial
116
experience in the law, having represented thousands of clients since being admitted to the
Bar of this Court thirty-four years ago.
Factor (a), “prior disciplinary offenses”, is present here, because Mixter received a
reprimand, by consent, from this Court for Rule 3.2 and 8.4(d) violations in 2008. Attorney
Grievance v. Mixter, 403 Md. 463, 943 A.2d 615 (2008). Bar Counsel summarized the
reprimand as follows, to which Mixter does not except:
By Order of the Court of Appeals dated March 7, 2008, Respondent received
a reprimand for violating Maryland Lawyers’ Rules of Professional Conduct,
Rule 3.2 and 8.4(d). Specifically, Respondent during the course of
representing a defendant in a civil matter, failed to cooperate with counsel
for the other parties with respect to scheduling depositions, failed to timely
answer requests for his availability for depositions, and scheduled
depositions without input. Additionally, Respondent filed motions that, at
least in part, caused delay and prevented the expeditious conclusion of
discovery.
Factor (c), “pattern of misconduct”, is evidenced when an attorney’s actions
constitute the same course of conduct. See Attorney Grievance Comm’n v. Kerpelman, 292
Md. 228, 244, 438 A.2d 501, 509 (1981) (“If we could conclude that this was a pattern of
conduct we would not hesitate to disbar.”). Mixter’s misrepresentations to courts include:
falsely asserting in the twenty-four motions listed in Appendix 3 that the oppositions were
properly served with subpoenas outside of Maryland; falsely certifying in the fifty-three
certifications listed in Appendix 6 that he had engaged in good faith efforts at resolving
discovery disputes; willfully omitting material information in connection with the twelve
motions listed in Appendix 7; as well as numerous specific cases, including, in the Davis
litigation, filing a false affidavit in the United States District Court for the District of
Maryland in which he asserted that the defendants had been properly served with copies of
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the complaint; and, in Mixter, alleging that Dr. Conte had been properly served with a
subpoena for documents when Mixter had filed the motion to compel on the same day he
had mailed the subpoena underlying that motion.
Mixter’s misrepresentations to witnesses and third parties include: threatening the
recipients of the over fifty subpoenas listed in Appendices 3 and 4 that their appearance
could be compelled in Maryland, when it could not; informing numerous non-party
witnesses, located in Maryland, that they could be compelled to attend a deposition in a
county other than that in which they reside, when they could not; and notifying several
health care providers that the subjects of the medical records Mixter had requested had not
objected to disclosure of the records, when they, in fact, had.
From the copious number of misrepresentations made with respect to the papers
listed in each Appendix, as well as the numerous additional misrepresentations found by
Judge Doory, it is clear that Mixter engaged in several “pattern[s] of misconduct”, to
include: misrepresenting proper service to courts; misrepresenting to courts that good faith
attempts at resolving discovery disputes had been attempted; misrepresenting the law to
third parties regarding compelling discovery; and misrepresenting to health care providers
that there had been no objections to the release of certain records.
Factor (d), “multiple offenses”, is implicated when an attorney violates multiple
disciplinary rules. See Hodes, slip. op. at 68, citing Attorney Grievance v. Bleecker, 414
Md. 147, 994 A.2d 928 (2010) (aggravating factor (d) is implicated when a lawyer violates
multiple disciplinary rules). We have concluded that Mixter violated Rule 3.1, 3.2,
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3.3(a)(1) and (a)(4), 3.4(a), (c) and (d), 4.1(a)(1), 4.4(a) and 8.4(a), (c) and (d), therefore,
aggravating factor (d) is included here.
Factor (g), “refusal to acknowledge wrongful nature of conduct”, is also implicated.
Mixter has not once acknowledged that he had committed any improper act and, even when
he has recognized that “[t]here certainly are examples where the person on the receiving
end of Respondent’s conduct may have felt harassed”, Mixter asserts that those feelings
are “subjective” and, seemingly, irrelevant, because, he argues, no one was “intimidated to
the point that he or she changed their course of action”. Out of Mixter’s one-hundred and
six pages of exceptions, he only asserts, in one sentence, that he is “sincerely remorseful”,
without elaboration. Factor (g) is clearly relevant. See Hodes, slip. op. at 68
(“[Respondent’s] remorselessness further intensifies the nefariousness of his conduct.”).
Factor (i), “substantial experience in the practice of law”, finally, is applicable.
Mixter has been a member of the Maryland Bar for over thirty-four years.
With respect to mitigating factors, we have considered:
“Absence of a prior disciplinary record; absence of a dishonest or selfish
motive; personal or emotional problems; timely good faith efforts to make
restitution or to rectify consequences of misconduct; full and free disclosure
to disciplinary board or cooperative attitude toward proceedings;
inexperience in the practice of law; character or reputation; physical or
mental disability or impairment; delay in disciplinary proceedings; interim
rehabilitation; imposition of other penalties or sanctions; remorse; and
finally, remoteness of prior offenses.”
Attorney Grievance v. O’Leary, 433 Md. 2, 31, 69 A.3d 1121, 1138 (2013), quoting
Attorney Grievance v. Brown, 426 Md. 298, 326, 44 A.3d 344, 361 (2012).
119
Judge Doory determined that Mixter had proven, by a preponderance of the
evidence, various mitigating factors, to include: attending to his mother during her fatal
bout with cancer from January through July of 2010; caring for his wife in April through
June of 2012 during her diagnosis, treatment and convalescence from a brain tumor;
dealing with his, now controlled, Atrial Fibrillation75 in 2008 through 2009; and modifying
his office procedure to require additional calls and letters to witnesses to resolve discovery
issues, but, as Judge Doory noted, without working with opposing counsel to solve
problems.
Judge Doory found that Mixter did not prove, by a preponderance of the evidence,
other purported mitigation, to include: consulting with Dr. Carroll, at the behest of trial
counsel, to find better ways to deal with what Dr. Carroll described as Mixter’s “ultra
competitive personality”; that the twenty-two cases here at issue are a mere three percent
of Mixter’s caseload and, therefore, insignificant; that Mixter had to work within court
imposed deadlines which was a source of additional stress; and that Mixter’s clients hold
him in high regard. Mixter excepts to the failure to find these circumstances as mitigation,
as well as to the failure to find that he cooperated with Bar Counsel and that he did not
misrepresent any facts to them.
75
“Atrial fibrillation is an irregular and often rapid heart rate that commonly causes poor
blood flow to the body.” Atrial fibrillation, Mayo Clinic, http://www.mayoclinic.org/
diseases-conditions/atrial-fibrillation/basics/definition/con-20027014 (last visited January
29, 2015)
120
With respect to Mixter’s cooperation with Bar Counsel, Judge Doory noted that
Mixter provided “extensive records and documents” and did not interfere with Bar
Counsel’s investigation and, therefore, we consider this as mitigation.
Regarding Mixter’s work with Dr. Carroll, Judge Doory found that Mixter failed to
prove, by a preponderance of the evidence, that he sincerely attempted to change his
abusive and misrepresentative practices, because Mixter had met with Dr. Carroll “seven
times beginning in late 2012”, four years after his reprimand in 2008 and then only at the
behest of trial counsel. We agree with Judge Doory that Mixter did not prove sincere
attempts to change his practice by a preponderance of the evidence, and we overrule his
exception.
Judge Doory made no findings that Mixter recognized the wrongfulness of his
actions. Mixter’s lack of remorse is an aggravating factor, in light of his grudging one-
liner that acknowledged any regret out of over one hundred pages of exceptions. We,
accordingly, overrule Mixter’s exception that he had proven his remorsefulness by a
preponderance of the evidence.
Mixter repeatedly has urged that he was only acting as a zealous advocate for his
clients, which Judge Doory should have considered a mitigating factor. We have addressed
the role of zealous advocacy in the context of Rules violations in McClain, 406 Md. 1, 956
A.2d 135. McClain argued that a sanction less than disbarment was appropriate for actions
121
violative of Rules 1.1,76 3.1, 3.2, 3.3(a), 4.4(a), 8.2(a)77 and 8.4(c) and (d), “because he was
not motivated by personal gain, but rather an overzealous desire to protect his client’s
interests.” Id. at 18, 956 A.2d at 145. We rejected that McClain’s intent “to further his
client’s interests . . . is compelling enough for us to impose less of a sanction than
disbarment”. Id. at 20, 956 A.2d at 146.
In Attorney Grievance v. Culver, 381 Md. 241, 282, 849 A.2d 423, 447-48 (2004),
we reiterated that zealous advocacy is important to representing a client, but that it neither
excuses nor mitigates Rule violations:
To be sure, “the American lawyer’s professional model is that of zeal
. . . .” C. Wolfram, Modern Legal Ethics, § 10.3.1, Nature of the Principle of
Zeal, at 578 (1986). But zeal is not boundless and some limits are
acknowledged by all, although the limits are not always clear. Id. at 579 .
See Little v. Duncan, 14 Md.App. 8, 15, 284 A.2d 641, 644 (1971) (stating
that “[z]eal in advocacy is commendable, but zeal, even in advocacy, without
bounds may be contemptuous and disruptive”); In re Hockett, 303 Or. 150,
734 P.2d 877, 884 (1987) (noting that “[z]ealous representation is limited by
more than the criminal law”). Judge Arrie Davis, writing for the Court of
Special Appeals, commented on the duty of an attorney to exercise zealous
advocacy. He noted:
“Lest there be any doubt that we favor—indeed believe an
adversary system demands no less—zealous advocacy, we
reiterate unequivocally that it is an advocate’s duty to use legal
procedure for the fullest benefit of the client's cause, but it is
76
Rule 1.1 provides:
A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.
77
Rule 8.2(a) provides:
A lawyer shall not make a statement that the lawyer knows to be false or with
reckless disregard as to its truth or falsity concerning the qualifications or
integrity of a judge, adjudicatory officer or public legal officer, or of a
candidate for election or appointment to judicial or legal office.
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also a duty not to abuse legal procedure. See Maryland Rules
of Professional Conduct, Comment to Rule 3.1.”
Reed v. Baltimore Life, 127 Md.App. 536, 552-53, 733 A.2d 1106, 1114-15
(1999).
Accordingly, we overrule Mixter’s exception that his alleged zealous advocacy should be
considered a mitigating factor.
Mixter excepts to Judge Doory’s failure to find his high volume practice as a
mitigating factor, pointing to Dore, 433 Md. 685, 73 A.3d 161 and Attorney Grievance v.
Geesing, 436 Md. 56, 80 A.3d 718 (2013), for support. Dore and Geesing, in fact, support
Judge Doory’s finding that Mixter’s high volume practice was not a mitigating factor.
In Dore, the attorney had “authorized his employees to sign his name on affidavits
filed in foreclosure actions” and the employees “notarized the bogus signatures” to
expedite Dore’s firm in handling as many as 1,200 foreclosure filings per month. 433 Md.
at 689, 690, 73 A.3d at 163, 164. Dore urged, for purposes of mitigation, that his behavior
should have been considered in light of the high volume of filings his firm was facing. We
rejected Dore’s argument, noting instead that “[c]ases not limited to a single violation or
to one client—even when the attorney’s conduct is unintentional—call for a more severe
sanction”. Id. at 723, 73 A.3d at 183.
In Geesing, a case in which we applied Dore, we suspended an attorney ninety days
for “robo-signing” over 2,500 affidavits in foreclosure suits.78 436 Md. at 58, 80 A.3d at
78
“Robo-signing”, in Geesing, referred “to the mass-production of affidavits that the
affiant did not sign.” Geesing, 436 Md. at 58 n.1, 80 A.3d at 719 n.1, citing Dore, 433 Md.
at 711, 73 A.3d at 176.
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719. Despite Geesing’s assertion that the high volume of his practice was a mitigating
factor, we recognized that the high volume was, in fact, an aggravating factor, because
Geesing had shown a pattern of misconduct and committed over 2,500 offenses. We also
acknowledged that the high volume of filings required more diligence from Geesing, not
less. The Geesing concurrence, finally, which had urged a lesser sanction, recognized that
a significant sanction was still required “given the high volume of these flawed mortgage
affidavits”. Geesing, 436 Md. at 71, 80 A.3d at 727 (Adkins, J., concurring).
Mixter’s attempt to find succor, then, in Dore and Geesing is unavailing, as we have
recognized that a large volume practice only increases the need for diligence.79 We,
accordingly, overrule Mixter’s exception on the grounds that his high volume practice
should be a mitigating factor.
With the aggravating and mitigating factors in mind, we turn to determining the
appropriate sanction. Bar Counsel recommends disbarment in the present case, because
“Respondent engaged in intentionally dishonest, deceitful and misleading conduct.”
Mixter suggests that a public reprimand is appropriate, because he had made no
misappropriation of funds, and “[a] reprimand will acknowledge [the] serious nature of
Respondent’s misconduct” as well as “serve as a permanent warning to Respondent Mixter
and to other lawyers that misconduct carries serious consequences.”
79
During arguments before this Court, Judge Adkins posed the question, directly, whether
it would be “good policy for this Court to say that we are going to consider as a mitigating
factor the large volume of an attorney’s practice”, and Mixter’s attorney acknowledged
that it would not be.
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“We long have held that repeated acts of dishonest, fraudulent, or misleading
behavior may warrant a sanction of disbarment”, even in the absence of misappropriation
of client funds. Steinberg, 395 Md. at 373, 910 A.2d at 450. When an attorney “engage[s]
in intentional dishonest conduct . . . the bar is set especially high, and disbarment will be
the appropriate sanction”. Id. at 375, 910 A.2d at 451. “Candor and truthfulness are two
of the most important moral character traits of a lawyer.” Attorney Grievance Comm’n v.
Myers, 333 Md. 440, 449, 635 A.2d 1315, 1319 (1994) (the proper sanction when an
attorney “exhibited an absence of [candor and truthfulness] on not one, but two, occasions”
was disbarment). “‘When a lawyer lies to a tribunal, he or she violates a norm that warrants
disbarment.’” Attorney Grievance v. Buehler, Misc. Docket AG No. 12, Sept. Term, 2014,
slip op. at 10 (Jan. 26, 2014), quoting Attorney Grievance v. Fader, 431 Md. 395, 438, 66
A.3d 18, 43 (2013).
Mixter’s pattern and practice has been to intentionally and knowingly mislead
courts, witnesses and parties, and his interactions have brought disrepute to the legal
profession. Mixter has made hundreds of repeated misrepresentations, to include: falsely
asserting in the twenty-four motions listed in Appendix 3 that the oppositions were properly
served with subpoenas outside of Maryland; falsely certifying in the fifty-three
certifications listed in Appendix 6 that he had engaged in good faith efforts at resolving
discovery disputes; willfully omitting material information in connection with the twelve
motions listed in Appendix 7; in Alemu, by omitting from a Motion for Protective Order to
preclude the opposition from taking a de bene esse deposition of an expert, return
correspondence from opposing counsel indicating that attempts had been made to resolve
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the dispute; in the Byrne-Egan litigation, writing a letter to Judge Motz, in the United States
District Court for the District of Maryland, in which he “knowingly and intentionally
mischaracterized and misrepresented” the content of the opposition’s motion; in the Byrne-
Egan litigation, also failing to inform the court, in his response to the court’s show cause
order for contempt, that a motion for a protective order as to the third-party defendant’s
mental health records was pending when he sought those same records; in the Davis
litigation, filing a false affidavit in the United States District Court for the District of
Maryland in which he asserted that the defendants had been properly served with copies of
the complaint; in Fitzgerald, by omitting from his Motion to Compel medical records from
the United States Department of Health and Human Services letters he had received from
the Department notifying him that he was required to first obtain the patient’s consent for
the release of the documents; in the Gonzales litigation, by omitting from his Motion to
Compel the production of documents from Mr. Fagan correspondences from Mr. Fagan
indicating that he had previously turned the requested documents over to Mixter’s
opposition; in Green, writing letters to the clerk of the court demanding that hearings on at
least five motions were required while omitting that the opposition had requested that the
motions be ruled on without hearings and that several of the motions were not yet ripe; in
the Johnson litigation, sending a letter to the clerk of the court “informing the Clerk that
his Motion to Compel was unopposed, though he knew that the plaintiff had filed a timely
opposition to Respondent’s Motion to Compel”; in Keener, misrepresenting to the Court
of Special Appeals that it was only due to a typographical error that he had falsely framed
the procedural history of the suit; in Mixter, asserting that a witness’s discovery responses
126
were overdue when, in fact, the witness had been served only three days prior to the date
the motion was filed; in Mixter, also alleging that Dr. Conte had been properly served with
a subpoena for documents when Mixter had, in fact, filed the motion to compel on the same
day he had mailed the subpoena underlying the motion to compel the production of
documents from Dr. Conte; stating to witnesses that they could be held in contempt of court
for failing to appear at depositions even though they had not been properly served with
enforceable subpoenas; stating to non-party, out-of-state witnesses, that they were required
to comply with a Maryland subpoena; stating to parties or witnesses that they could be
compelled to appear for depositions at a location in violation of Rule 2-413; and informing
health care providers that no objection had been made to the disclosure of medical
information when, in fact, such objections had been made.
Contrary to Mixter’s assertion, a finding of misappropriation of client funds is not
a prerequisite to disbarment. In Steinberg, 395 Md. 337, 910 A.2d 429, the attorney
violated Rules 3.3, 4.1 and 8.4(c) by making several false statements of material fact, to
include: misrepresenting in a Motion to Reconsider an order granting a trustees’ sale that
his client had not been notified of the sale when, in fact, the client had been duly notified;
misrepresenting to opposing counsel that his client refused to be deposed when the client
made no such objection; and informing opposing counsel and his client, following
Steinberg’s discharge, that he had filed a motion to withdraw, which he had not done until
months later. We disbarred Steinberg in light of his numerous misrepresentations.
Underlying Myers, 333 Md. 440, 635 A.2d 1315, where we also disbarred an
attorney without a finding of misappropriation, were the attorney’s repeated acts of
127
misrepresentation. Myers had previously been suspended from the practice of law for lying
to Bar Counsel during an investigation. After his reinstatement, Myers falsely testified
before a district court judge regarding his driving history. We opined that, what set Myers
apart from those instances where an attorney had committed a single isolated
misrepresentation and not been disbarred, was that both instances of Myers’s misconduct
involved misrepresentation, in violation of Rules 3.3(a)(1) and 8.4(c).
Most recently, in Buehler, a reciprocal discipline case, we noted that “Buehler’s
gravest transgressions are his repeated misrepresentations.” Buehler, slip op. at 10. We
disbarred Buehler in light of his repeated misrepresentations to the court as well has his
failure to appear at scheduled hearings, his pursuit of meritless proceedings and his failure
to notify Bar Counsel of disciplinary proceedings against him in another jurisdiction; there
was no finding of misappropriation.
Although Mixter urges as discipline a second reprimand, in cases of dishonesty we
have imposed significant “time out” from the practice of law, as acknowledged in Dore
and Geesing, cases suggested by Mixter, in which significant mitigation was present. In
Dore, we suspended the attorney for ninety days, rather than imposing a greater sanction,
“because of the many mitigating circumstances”, to include: Dore had “never been
disciplined nor ha[d] he ever been a respondent in a case filed in the Court of Appeals by
the Attorney Grievance Commission”; Dore had “decided to have his name listed in the
signature block of documents filed in foreclosure cases to protect his employees from
harassment . . . and threats of violence by borrowers whose homes were in foreclosure”;
Dore had “immediately stopped the offending practice” upon receipt of a private
128
admonition regarding his practice from a circuit court judge; “no one ha[d] cited any
inaccuracies in the[] Affidavits”, demonstrating that the firm’s “review of the files prior to
signing them was thorough”; Dore had self-reported his misconduct to Bar Counsel; Dore
had a good character and reputation in the community; and, according to the hearing judge,
Dore “recognize[d] his errors and [was] truly remorseful for this conduct.” Dore, 43 Md.
at 699-702, 727, 73 A.3d at 169-71, 186.
In Geesing, we also recognized the existence of a number of significant mitigating
factors. Once Geesing became aware that it was improper to authorize staff members to
sign documents in his name in foreclosure filings, he took immediate remedial action, to
include: e-mailing his entire firm to inform them he would no longer “robo-sign”;
recommending that his firm, at its own expense, dismiss the foreclosure actions and re-file
them with appropriate documents (at a cost of over $12,000); identifying about 2,500
actions in which he recommended that he be allowed to file a “corrective affidavit” at a
cost of about $140,000; and reporting himself to the Attorney Grievance Commission.
Geesing, 436 Md. at 60-62, 80 A.3d at 720-22. Geesing, finally, “showed remorse for his
misconduct, not merely because of the attorney disciplinary proceeding, but mainly
because he dishonored his profession and disappointed his partners and his family, and
because others may view the judicial process negatively as a result of his misconduct.” Id.
at 62, 80 A.3d at 722.
In this case, in which Mixter has made hundreds of misrepresentations without
remorse or attempt to rectify his transgressions, and has, instead, attempted to excuse his
abusive discovery practices, disbarment is the appropriate sanction.
129
Respondent Mark T. Mixter is hereby disbarred from the practice of law in the State
of Maryland.
IT IS SO ORDERED; RESPONDENT
SHALL PAY ALL COSTS AS TAXED
BY THE CLERK OF THIS COURT,
INCLUDING COSTS OF ALL
TRANSCRIPTS, PURSUANT TO
MARYLAND RULE 16-761, FOR
WHICH SUM JUDGMENT IS
ENTERED IN FAVOR OF
THE ATTORNEY GRIEVANCE
COMMISSION AGAINST MARK T.
MIXTER.
Judge Harrell joins the judgment only.
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V. Appendices
Appendix 1
131
132
133
Appendix 2
134
135
136
137
Appendix 3
138
139
Appendix 4
140
141
Appendix 5
142
143
144
145
Appendix 6
146
147
148
Appendix 7
149
150