Attorney Grievance v. Stanalonis , 445 Md. 129 ( 2015 )

Attorney Grievance Commission v. Joseph Michael Stanalonis
Misc. Docket AG No. 74, September Term 2013
Attorney Discipline – Judicial Elections − Statements Concerning
Candidate for Judicial Office. A campaign flyer of a candidate for judicial office
stated that the opposing candidate “[o]pposes registration of convicted sexual
predators.” There was not clear and convincing evidence that the statement violated
the Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) when the hearing
judge found that the candidate responsible for the flyer believed, and had a
“demonstrable basis” for believing, the statement to be true. MLRPC 8.2(a), 8.4(c) &
8.4(d).
Circuit Court for Prince George’s County
Case No.CAE14-04639
Argued September 9, 2015
IN THE COURT OF APPEALS
OF MARYLAND
Misc. Docket AG No. 74
September Term, 2013
ATTORNEY GRIEVANCE
COMMISSION OF
MARYLAND
v.
JOSEPH M. STANALONIS
Barbera, C.J.
Battaglia
Greene
Adkins
McDonald
Watts
Harrell, Jr., Glenn T.
(Retired, Specially
Assigned),
JJ.
Opinion by McDonald, J.
Watts, J., concurs and dissents;
Harrell, J., dissents.
Filed: November 23, 2015
This case arose out of a hotly-contested primary election campaign for a
position on the Circuit Court for St. Mary’s County. An experienced prosecutor in the
County sought to unseat a newly-appointed judge who, during the course of his
career, had represented defendants in criminal cases in the County. As in many
election campaigns, each candidate touted, with some exaggeration, his own
experience and credentials. And each candidate disparaged, in various ways and
without absolute accuracy, those of his opponent. The question before us is whether
there is clear and convincing evidence that a statement in the challenger’s campaign
flyer was made with knowledge that it was false or with reckless disregard of its truth
or falsity and therefore violated the Maryland Lawyers’ Rules of Professional Conduct
(“MLRPC”).
The Attorney Grievance Commission (“Commission”) charged Respondent
Joseph M. Stanalonis with violating MLRPC 8.2(a) (false statement as to
qualification or integrity of a judge, public legal officer, or candidate for such office),
MLRPC 8.4(c) (misconduct involving dishonesty, fraud, deceit, or misrepresentation),
and MLRPC 8.4(d) (misconduct prejudicial to the administration of justice) by virtue
of three statements about his opponent in a campaign flyer circulated on his behalf.
Pursuant to Maryland Rule 16-752(a), this Court designated Judge Melanie M. Shaw
Geter of the Circuit Court for Prince George’s County1 to conduct a hearing
1
The matter was originally assigned to a judge of the Circuit Court for St.
Mary’s County, but was later re-assigned to Judge Shaw Geter.
1
concerning the alleged violations and to provide findings of fact and recommended
conclusions of law.
Following a hearing at which Mr. Stanalonis was present and represented by
counsel, the hearing judge issued findings of fact and recommended conclusions of
law. The hearing judge concluded that two of the statements did not violate the
MLRPC, but that the third statement violated all of the cited rules, although Mr.
Stanalonis had a “demonstrable basis” for making that statement. Mr. Stanalonis
excepted to the conclusion that he had violated the MLRPC. We sustain that
exception, and, as a result, shall dismiss the charges.
Background
The hearing judge’s fact findings are uncontested.2 Therefore, we treat them
as established. Maryland Rule 16-759(b)(2)(A). Those findings, as well as undisputed
matters in the record, establish the following.
The 2012 Primary Election for Circuit Court Judge
Mr. Stanalonis was admitted to the Maryland Bar on December 19, 1996 and,
since that time, has been employed as an Assistant State’s Attorney in St. Mary’s
County. In January 2012, Mr. Stanalonis declared his candidacy for the Circuit Court
for St. Mary’s County. His opponent would be David W. Densford, whose
appointment to the Circuit Court had been announced by the Governor a few weeks
2 While Mr. Stanalonis registered no objection to the facts found by the hearing
judge, he excepted the failure of the hearing judge to make certain additional findings
favorable to his case. As a resolution of those exceptions would not affect our
disposition of the case, we do not consider them.
2
earlier. Judge Densford took office on February 3, 2012. The primary election was
scheduled for April 3, 2012. In that election, Mr. Stanalonis and Judge Densford
would appear on both the Democratic and Republican ballots.3 As the hearing judge
found, both candidates were active in their campaigns and, by all accounts, the
ensuing election campaign was vigorous and contentious.
The Stanalonis Campaign Flyer
Judge Densford began to distribute campaign material on February 3, 2012,
the day of his investiture. The campaign material included signs displaying a
photograph of Judge Densford in a judicial robe with the words, “KEEP JUDGE
DENSFORD, Experience Matters.” Judge Densford later testified that the
“experience” to which this referred included: (1) the 60 days he would have served on
the bench as of the date of the primary election in April and (2) his prior 27 years in
private practice.
On or about March 27, 2012, in response to Judge Densford’s campaign
material, Mr. Stanalonis’ campaign mailed a flyer to voters that purported to contrast
the experience and outlooks of the two candidates. The left side of the flyer displayed
a photograph of Mr. Stanalonis in a jacket and tie, below which appeared a number
of statements about him, such as “16 Years as a St. Mary’s County Prosecutor” and
“Protecting Our Community, Not the Criminals.” The right side of the flyer displayed
a photograph of Judge Densford in a Hawaiian shirt, below which appeared a number
3
In a primary election, candidates for judicial office typically appear on the
ballots of both principal parties. See Suessman v. Lamone, 383 Md. 697, 862 A.2d 1(2004).
3
of statements about him, such as “Donated $1,000 to O’Malley on July 14, 2010” and
“Opposes your right to elect judges.” A panel at the bottom of the flyer displayed a
photograph of Mr. Stanalonis with his family and reiterated his experience as a
prosecutor. Judge Densford later responded with his own flyer comparing the
qualifications of the two candidates. At issue before us is one of the statements in
the Stanalonis campaign flyer that appears under Judge Densford’s photograph:
“Opposes registration of convicted sexual predators.”4
Evidence concerning Judge Densford’s Views on Sex Offender Registration
Both Mr. Stanalonis and Judge Densford testified in this proceeding. Mr.
Stanalonis testified that Judge Densford, while in private practice, had represented
defendants in criminal cases involving sex-related offenses and that Mr. Stanalonis
and his colleagues in the State’s Attorney’s Office had dealt with him in that capacity.
Mr. Stanalonis testified that Judge Densford had told him, in conversations related
to the representation of his clients, that he “was opposed to the registration because
it was a long-lasting − life-long impact on [defendants] and would carry with them
forever,” and moreover “that the punishment should be what it is in the statute for
4
In the charges initiating this proceeding, the Commission alleged that two
other statements under Judge Densford’s photograph (“As Judge, has never
sentenced a single criminal to jail” and “Opposes your right to elect judges”) also
constituted professional misconduct by Mr. Stanalonis. The hearing judge concluded
that one statement (concerning Judge Densford’s sentencing experience) was literally
true when it was made, and that the second was, at worst, a misunderstanding of a
nuanced position taken by Judge Densford in support of publicizing a county bar
association resolution opposing the election of judges. The hearing judge concluded
that neither of those statements violated the MLRPC. The Commission has not
excepted to the hearing judge’s findings of fact or conclusions of law with respect to
those statements and we do not consider them further.
4
the particular sex offense and that if the crime called for a maximum incarceration of
ten years, that the maximum [time that] these individuals should be under the
supervision of the Court should be ten years.” The hearing judge found, based on Mr.
Stanalonis’ testimony, that Mr. Stanalonis “determined that [Judge] Densford
opposed the [sex offender] registry” through “conversations surrounding the issue and
interactions with fellow prosecutors.”
Judge Densford, for his part, testified that he had not expressed opposition to
the registration of sex offenders as a general matter. During his testimony he was
asked, “At any time prior to your appointment on December 22, 2011, in your capacity
as a private person or as a criminal defense attorney, did you express opposition to
the registration of convicted sexual predators?” He replied, “No. Not as a group. I
did when I represented individuals. I didn’t want particular people to have to register
and would negotiate that. That had nothing to do with the offender registry. It had
to do with representation.” He explained that he had sought to avoid having his
clients “plead[] to [charges] that would get them registered as sexual offenders.” He
testified that he preferred “a plea to assault instead of something that put them on
the registry.” He stated that he did not believe that he had made a blanket statement
opposing registration of sex offenders generally.
The hearing judge found the testimony of Mr. Stanalonis and Judge Densford
“equally compelling.” In particular, she found credible Mr. Stanalonis’ testimony that
Judge Densford routinely opposed registration of his clients on the sex offender
registry while he was a defense attorney. On the other hand, she also credited Judge
5
Densford’s testimony that, while he had opposed plea arrangements that would result
in his clients being placed on the sex offender registry, he had not discussed the topic
with Mr. Stanalonis outside the context of representation of a client. She also noted
that Judge Densford had never made a public statement concerning the sex offender
registry.
In the end, the hearing judge found that Mr. Stanalonis “had a demonstrable
basis for believing that [Judge] Densford opposed the Sex Offender Registry.” But in
concluding that Mr. Stanalonis had violated the MLRPC, she also opined that he
should have made a “more substantial effort” to ensure the accuracy of the statement.
Later in her opinion, she reiterated that it was not acceptable for a lawyer “to make
representations regarding the identity or opinion of a public official, specifically a
judge, without conducting a full and thorough investigation into the accuracy of the
assertion.”
Election Results
On April 3, 2012, Judge Densford won the Democratic primary election; Mr.
Stanalonis won the Republican primary election. Both advanced to the November
2012 general election where Judge Densford ultimately prevailed.
Complaint concerning Stanalonis Flyer
In the interim, on April 20, 2012, attorney George E. Meng had filed a
complaint against Mr. Stanalonis with the Maryland Judicial Campaign Conduct
6
Committee, Inc. (“MJCCC”),5 a private entity devoted to promoting standards of the
conduct for judicial elections in Maryland. The MJCCC found several violations of
its standards for contested judicial elections. The Commission cited the MJCCC’s
conclusions in the charges that initiated this case.
Discussion
In her recommended conclusions of law the hearing judge proposed that we
hold that Mr. Stanalonis violated MLRPC 8.2(a), 8.4(c), and 8.4(d) based on the
statement in his campaign flyer that Judge Densford “[o]pposes the registration of
convicted sexual predators.” Mr. Stanalonis excepted to that recommendation. The
Commission did not file any exceptions to the hearing judge’s findings of fact or
recommended conclusions of law.
We review recommended conclusions of law without deference to the hearing
judge pursuant to Maryland Rule 16-759(b)(1). In the course of that review, we
consider any exceptions filed by the parties.
A. MLRPC 8.2(a)
MLRPC 8.2(a) provides, in pertinent part, that “[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
5 The Maryland Judicial Campaign Conduct Committee was created in 2005.
It has established certain standards for the conduct of contested judicial elections in
Maryland and asks candidates to pledge to adhere to those standards. See
www.mdjccc.org>. During the 2012 primary election, Judge Densford agreed to abide
by those standards; Mr. Stanalonis did not.
7
public legal officer, or of a candidate for election or appointment to judicial or legal
office.” MLRPC 8.2(a). To establish a violation of this rule, three things must be
proven by clear and convincing evidence: (1) that the lawyer made a false statement;
(2) that the statement concerned the qualifications or integrity of a judge or a
candidate for judicial office; and (3) that the lawyer made the statement with
knowledge that it was false or with reckless disregard as to its truth or falsity.6 In
this case, the parties have focused on the third element – whether the statement in
Mr. Stanalonis’ campaign flyer was made with knowledge that it was false or with
reckless disregard as to its truth or falsity.7
6
The rule is based on a model rule proposed by the American Bar Association.
See American Bar Association, Annotated Model Rules of Professional Conduct 651
(8th ed. 2015). Courts in other states that have adopted the rule have also recognized
that it requires proof of these three elements. See In re Charges of Unprofessional
Conduct Involving File No. 17139, 720 N.W. 2d 807, 813 (Minn. 2006).
7 Although not at issue before us, there may be a question as to whether the
second element of MLRPC 8.2(a) is met – i.e., whether this statement relates to the
qualifications or integrity of a judicial candidate. While a particular view about the
utility of sex offender registration may or may not be politically advantageous, it is
not at all clear that it relates to the “qualifications or integrity” of a judicial candidate.
“[O]pinions that a lawyer may have expressed before becoming a judge, or a judicial
candidate, do not disqualify anyone for judicial service because every good judge is
fully aware of the distinction between the law and a personal point of view.”
Republican Party of Minnesota v. White, 536 U.S. 765, 798 (2002) (Stevens, J.,
dissenting); see also Code of Judicial Conduct, Rule 2.2, comment 2 (“although each
judge comes to the bench with a unique background and personal philosophy, a judge
must interpret and apply the law without regard to whether the judge approves or
disapproves of the law in question”). Apparently, Mr. Stanalonis thought otherwise
in including the statement on his campaign flyer and presumably that is why he did
not argue that the second element was lacking.
8
1. The Election Context
This Court has applied the MLRPC, and MLRPC 8.2(a) in particular, to
statements made by lawyers in a variety of contexts. See Attorney Grievance Comm’n
v. Frost, 437 Md. 245, 359-68, 85 A.3d 264 (2014) (statements by an attorney about
judges and other public officials made in email sent to ex-wife and later forwarded to
other attorneys); cf. Attorney Grievance Comm’n v. Gansler, 377 Md. 656, 835 A.2d
548 (2003) (statements made by prosecutor about pending cases in press conferences).
This case involves a statement made in the context of an election campaign. This
context is relevant for three reasons.
First, as the Supreme Court has observed, “speech about the qualifications of
candidates for public office,” including judicial candidates, is “at the core of our First
Amendment freedoms.” Republican Party of Minnesota v. White, 536 U.S. 765, 774
(2002); see also McCutcheon v. Federal Election Comm’n, 134 S. Ct. 1434, 1441 (2014)
(“the First Amendment ‘has its fullest and most urgent application precisely to the
conduct of [election] campaigns’”) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265,
272 (1971)). The speech at issue in this case — which purported to describe the views
of a candidate for judicial office — is core political speech and has the highest level of
First Amendment protection.8 This is important because the canon of constitutional
8
The dissenting opinions would ignore or minimize the extent to which the
First Amendment constrains government entities in regulating campaign speech.
For example, Judge Harrell’s opinion relies heavily on the position of the MJCCC in
framing its analysis. Dissenting Opinion of Judge Harrell at 1-2, 7 & nn.1-2. Unlike
State entities, including this Court, the MJCCC is a private entity not constrained by
the First Amendment. As the MJCCC’s website explains, it was created in part
precisely because the First Amendment limits a state supreme court’s ability to
9
avoidance requires that we be cognizant of the constitutional values at stake in
construing the MLRPC: to the extent that MLRPC 8.2(a) “‘is susceptible of two
reasonable interpretations, one of which would not involve a decision as to the
constitutionality of the [provision] while the other would, the construction which
avoids the determination of constitutionality is to be preferred.’” G. Heileman
Brewing Co. v. Stroh Brewery Co., 308 Md. 746, 763, 521 A.2d 1225 (1987) (quoting
Maryland State Board of Barber Examiners v. Kuhn, 270 Md. 496, 505, 312 A.2d 216(1973)). Thus, any interpretation of MLRPC 8.2(a) in an election context must take
into account the First Amendment protections for speech in election campaigns.
Second, the election context is significant as there inevitably is some
imprecision in language used during the heat of a political campaign. There are often
short timeframes in which a candidate must respond to claims or criticisms made by
an opponent, there may be limited time to vet language, and a short and snappy one-
liner usually prevails over a lengthier, more carefully phrased sentence. 9 Opposing
restrict candidate speech in judicial elections. See .
9 For example, a campaign flyer supporting Judge Densford’s election asserted
that the County Judicial Nominating Commission had found Mr. Stanalonis “Not
Qualified to be a Judge” when, in selecting among the applicants for appointment to
a circuit court position it did not send his name to the Governor. As Judge Densford
conceded during his testimony, this was a “technically inaccurate” description of the
determination made by the nominating commission. See COMAR 01.01.2008.04F &
COMAR 01.01.2015.09F (executive orders specifying the function of judicial
nominating commissions).
10
candidates for judicial office do not have the opportunity to depose each other.10 And
campaign flyers are not appellate briefs. In this context, imprecise wording is not
necessarily a violation of MLRPC 8.2(a).
Finally, although this particular case arises out of an election for judicial office,
MLRPC 8.2(a) also regulates statements by lawyers about “public legal officers,” such
as the Attorney General and State’s Attorneys, and candidates for those elective
offices. Frost, 437 Md. at 261 & n.9. Thus, whatever we hold in this case will also
control what a lawyer may say about a candidate for election as Attorney General or
as a State’s Attorney.
2. The Applicable Standard
In the charges that initiated this case, the Commission alleged that the
statement in Stanalonis campaign flyer was “knowingly false” and did not assert that
it was made with “reckless disregard” (although the pleading later quoted MLRPC
8.2 in its entirety). Petition for Disciplinary or Remedial Action at p. 3, ¶ 7. In its
proposed findings of fact and conclusions of law submitted to the hearing judge
following the hearing, the Commission maintained that position and asked the judge
to conclude that the statement was “knowingly false,” although it argued that a
negligent misrepresentation would also violate MLRPC 8.2(a).
As noted above, the hearing judge did not find that the statement was
knowingly false, but rather concluded that it was made with “reckless disregard” as
10
They do not have the opportunity to depose one another about their respective
positions unless they do so, as here, well after the campaign during a disciplinary
proceeding.
11
to its truth or falsity. Before us, the Commission did not except to the hearing judge’s
conclusion and has dropped any contention that the statement was “knowingly
false.”11 Hence, the relevant standard under MLRPC 8.2(a) is whether the statement
was made with “reckless disregard as to its truth or falsity.”
3. “Reckless Disregard as to Truth or Falsity”
In the First Amendment context, “reckless disregard for truth or falsity” evokes
the subjective test for civil liability for defamation of a public figure set forth New
York Times Co. v. Sullivan, 376 U.S. 254 (1964). Under this test, “reckless disregard
for truth or falsity” is not “measured by whether a reasonably prudent man would
have published, or would have investigated before publishing. There must be
sufficient evidence to permit the conclusion that the defendant in fact entertained
serious doubts as to the truth of his publication. Publishing with such doubts shows
reckless disregard for truth or falsity....” St. Amant v. Thompson, 390 U.S. 727, 731
(1968). The subjective test thus focuses on what the defendant personally knew and
thought. The drafters of the model rule from which MLRPC 8.2(a) is derived
apparently intended to import this test into the rule. See American Bar Association,
Model Rules of Professional Conduct, Proposed Final Draft (May 30, 1981) at 206
(explaining that Model Rule 8.2 is consistent with the New York Times standard).
11
It thus appears that the Commission did not prove what it actually charged
in the Petition for Disciplinary or Remedial Action – a knowing falsehood. It may
well be that, in outlining the underlying facts and quoting MLRPC 8.2 in its entirety
at the end of the document, the Petition provided adequate notice to the Respondent
that the charges against him might be established by proof of a recklessly made
falsehood. In any event, Mr. Stanalonis has not excepted on this ground and, in light
of our disposition of the case, we need not resolve it.
12
As this Court observed in Frost, however, “[t]here appears to be disagreement
among the states as to whether the general defamation standard announced in New
York Times, i.e. the subjective test, should apply equally to attorney discipline cases.”
437 Md. at 265 n. 11. The Court noted that a number of courts have preferred to
develop an objective test not keyed to the knowledge or understanding of the
particular lawyer. Id. A comparison thus might be made to other contexts where
courts must apply a standard of “recklessness” or “reckless disregard.” For example,
the test for recklessness in the context of reckless endangerment is “whether the
[defendant’s] misconduct, viewed objectively, was so reckless as to constitute a gross
departure from the standard of conduct that a law-abiding person would observe.”
Minor v. State, 326 Md. 436, 443, 605 A.2d 138 (1992). Such a test is akin to gross
negligence. In fact, the definition of “gross negligence” sometimes includes the phrase
“reckless disregard.” See, e.g., Cooper v. Rodriguez, 443 Md. 680, 686, 118 A.3d 829(2015) (“Gross negligence has been defined as, among things, ‘an intentional failure
to perform a manifest duty in reckless disregard of the consequences as affecting the
life or property of another, and also implies a thoughtless disregard of the
consequences without the exertion of any effort to avoid them.’”) (quoting Barbre v.
Pope, 402 Md. 157, 187, 935 A.2d 699 (2007)); State v. Pagotto, 361 Md. 528, 548, 762
A.2d 97 (2000) (“In order for the accused's conduct to constitute gross negligence, the
conduct must manifest a wanton or reckless disregard of human life.”) (internal
quotation marks omitted).
13
Finally, even if a court would normally favor an objective test in assessing the
“reckless disregard” prong of MLRPC 8.2(a), there is a significant argument that a
subjective test should be applied in an election context, in light of the “core” First
Amendment values at stake. See In re Charges of Unprofessional Conduct Involving
File No. 17139, 720 N.W. 2d 807, 813-15 (2006) (raising, but not resolving, the
question whether the Minnesota Supreme Court would apply a subjective test in
evaluating an alleged 8.2(a) violation in an election context, even though that court
applies an objective test in other contexts).
In Frost, this Court expressly did not resolve whether the test for “reckless
disregard” in applying MLRPC 8.2(a) should be a subjective one or an objective one.
437 Md. at 265 n. 11. We need not resolve that question for purposes of deciding this
case either, as our resolution is the same under either standard.
4. Whether There is Clear and Convincing Evidence of Reckless Disregard
The question that we must resolve is whether there is clear and convincing
evidence that Mr. Stanalonis made a statement concerning Judge Densford’s views
about sex offender registries with reckless disregard as to the truth or falsity of that
statement. In testimony that the hearing judge found credible, Mr. Stanalonis stated
that he was familiar with Judge Densford as a criminal defense attorney and with
his efforts to keep his clients off the sex offender registry. The hearing judge found
that, in reliance on conversations, and interactions with other prosecutors, Mr.
Stanalonis “determined [Judge] Densford opposed the registry,” although she also
found that his determination proved to be incorrect.
14
Perhaps the Stanalonis campaign flyer could have been more precise in its
description of his understanding of Judge Densford’s position and the source of that
understanding. For example, according to Judge Densford’s testimony in this
proceeding, a sentence that read “While in private practice and representing clients,
attorney David Densford opposed placing his clients on the sex offender registry,”
would have been more accurate than, “Opposes registration of convicted sexual
predators.” But Mr. Stanalonis was speaking in the context of an election campaign,
and MLRPC 8.2(a) does not require absolute precision in the expression of political
speech as part of an election campaign. Mr. Stanalonis apparently drew an incorrect
inference from his conversations with Judge Densford that Judge Densford opposed
the registration of convicted sex offenders generally but, as the hearing judge found,
there was a “demonstrable basis” for making this inference.
In short, whatever Judge Densford’s true feelings, Mr. Stanalonis appears to
have actually believed that Judge Densford opposed the registry according to his
testimony (which the hearing judge generally credited). There is no evidence that
Mr. Stanalonis “entertained serious doubts as to the truth of his” statement, see St.
Amant, 390 U.S. at 731. Thus, the statement in the campaign flyer would not satisfy
the subjective test for “reckless disregard” as to truth or falsity.
Given the testimony of both Mr. Stanalonis and Judge Densford concerning
their discussions of the sex offender registry, the hearing judge’s finding that Mr.
Stanalonis had a “demonstrable basis for believing” that Judge Densford opposed the
15
sex offender registry finding was not clearly erroneous.12 In light of that
demonstrable basis, we cannot say that there is clear and convincing evidence that
Mr. Stanalonis’ belief was a “gross departure” from the understanding that a
reasonably prudent lawyer in his position would have.13 It is not a gross deviation
from the behavior of a reasonable attorney to make a statement that one has a
demonstrable basis for believing, even if that belief turns out to be incorrect.
In sum, there is not clear and convincing evidence that the statement in the
campaign flyer was made with reckless disregard for the truth or falsity of the
statement, regardless of whether a subjective or objective test is applied.
Accordingly, we conclude that a violation of MLRPC 8.2(a) has not been proven.
B. MLRPC 8.4(c)
MLRPC 8.4(c) provides that it is professional misconduct for a lawyer to
“engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” This
prohibition “is not limited to conduct in the practice of law, but extends to actions by
an attorney in business or personal affairs that reflect on the individual's character
12 Although the hearing judge made this finding in a portion of her opinion
entitled “Conclusions of Law” discussing the alleged violation of MLRPC 8.2(a), it
appears to be a finding of fact, and so we review it for clear error.
13 In her conclusions of law, the hearing judge observed that, while Mr.
Stanalonis had a demonstrable basis for his understanding the Judge Densford had
opposed the sex offender registry based on his discussions with Judge Densford and
had vetted the statement with others who were familiar with Judge Densford, he
should have made “a more substantial effort in ensuring the accuracy” of the
statement. The hearing judge did not indicate what that effort would involve and,
short of requiring a candidate to vet campaign material with the opposing candidate,
it is not clear what that effort would be.
16
and fitness to practice law.” Attorney Grievance Comm’n v. Coppock, 432 Md. 629,
644, 69 A.3d 1092 (2013).
Not all attorney statements that turn out to be untrue violate MLRPC 8.4(c).
“While this Court has sometimes drawn fine distinctions among the four horsemen of
the rule – dishonesty, fraud, deceit and misrepresentation – each pertains to a false
statement by an attorney only if the attorney makes use of the false statement
knowing that it is untrue.” Attorney Grievance Comm’n v. Smith, 442 Md. 14, 34, 109
A.3d 1184 (2015);14 see also Attorney Grievance Comm’n v. Mungin, 439 Md. 290, 310,
96 A.3d 122 (2014) (ordinarily, “this Court will not find a violation of MLRPC 8.4(c)
when the attorney’s misconduct is the product of negligent rather than intentional
misconduct”) (internal quotation marks and brackets omitted).
Although it has been suggested on occasion that an attorney might violate
MLRPC 8.4(c) by means of a negligent or an “inadvertent” misrepresentation, this
Court has generally required that there be a “conscious objective or purpose” to the
misrepresentation or omission and the facts of those cases might be more aptly
described as intentional failures to communicate truthful information, as opposed to
negligent falsehoods. See Attorney Grievance Comm’n v. Nwadike, 416 Md. 180, 194-
95, 6 A.3d 287 (2010) (respondent violated MLRPC 8.4(c) when she acted with a
14
“Dishonesty is the broadest of the four terms, and encompasses, inter alia,
conduct evincing a lack of honesty, probity or integrity of principle; [a] lack of fairness
and straightforwardness. . . . Thus, what may not legally be characterized as an
act of fraud, deceit or misrepresentation may still evince dishonesty.” Attorney
Grievance Comm’n of Maryland v. Thomas, 440 Md. 523, 555, 103 A.3d 629 (2014)
(internal quotation marks omitted) (alteration in original).
17
“conscious objective or purpose” to conceal information from her client and Bar
Counsel); Attorney Grievance Comm’n v. Calhoun, 391 Md. 532, 566, 894 A.2d 518(2006) (respondent violated MLRPC 8.4(c) by “deceitful and misleading” conduct
when she received a check for full settlement of client’s case, deposited the check into
her own bank account, and did not inform her client for more than a year of the receipt
of the funds); Attorney Grievance Comm’n v. Ellison, 384 Md. 688, 715, 867 A.2d 259(2005) (respondent violated MLRPC 8.4(c) when he acted with “conscious objective or
purpose” in concealing fact of ongoing representation of a client).
The hearing judge did not analyze the application of MLRPC 8.4(c) separately
from MLRPC 8.2(a). We agree that, in this context, the two rules should be
considered in concert. The hearing judge did not find – and the Commission no longer
argues – that the statement in question constituted a knowing falsehood. Nor is
there evidence of an omission or misrepresentation with a “conscious objective or
purpose” to conceal truthful information. There is not clear and convincing evidence
of a violation of MLRPC 8.4(c).
C. MLRPC 8.4(d)
MLRPC 8.4(d) provides that it is professional misconduct for a lawyer to
“engage in conduct that is prejudicial to the administration of justice.” “Generally, a
lawyer violates MLRPC 8.4(d) where the lawyer's conduct negatively impacts the
public’s perception of the legal profession.” Attorney Grievance Comm’n v. Basinger,
441 Md. 703, 712, 109 A.3d 1165 (2015) (quoting Attorney Grievance Comm’n v.
McDowell, 439 Md. 26, 39, 93 A.3d 711 (2014)). “The prejudice to the administration
18
of justice may also be measured by the practical implications the attorney’s conduct
has on the day-to-day operation of our court system.” Attorney Grievance Comm’n v.
Hamilton, 444 Md. 163 118 A.3d 958 (2015) (quoting Attorney Grievance Comm’n v.
Smith, 442 Md. 14, 31, 109 A.3d 1184, 1194 (2015)). Whether there has been a
negative impact is judged by an objective standard. Basinger, 441 Md. at 716.
Here, Mr. Stanalonis, a candidate for judicial office, made a statement in a
campaign flyer about the views of his opponent, Judge Densford. The hearing judge
concluded that the statement reflected negatively on the legal profession because the
Stanalonis campaign made it without “conducting a full and thorough investigation”
into its accuracy. Nevertheless, Mr. Stanalonis had a “demonstrable basis” for
believing the statement and, according to his own testimony (which the hearing judge
credited), did believe it. It is hard to imagine that making such a statement would
negatively impact that public’s perception of the legal profession, except insofar as
any campaign material that slights the qualifications of an opponent has a negative
impact on the public perception of the opponent who, as in this case, is an attorney
who holds public office.15 But such a standard would be incompatible with the State’s
current policy, incorporated in the State Constitution, of holding contested elections
15 One might therefore read MLRPC 8.4(d) to prohibit all campaign material
on behalf of a lawyer that negatively portrays an opponent in an election, because all
such material might negatively impact the public’s perception of the legal profession.
However, such an interpretation would raise a serious First Amendment question,
and, in light of the canon of constitutional avoidance, we decline to interpret it in this
way.
19
for circuit court judgeships and public legal officers such as the Attorney General and
State’s Attorneys. Accordingly, there was no violation of MLRPC 8.4(d).
Disposition
For the reasons set forth above, the Petition for Disciplinary or Remedial
Action is dismissed.
Although we have concluded that there is insufficient evidence to establish a
violation of the MLRPC, our disposition of this case should not be taken to endorse
the use of (in Judge Densford’s words) “antics and semantics” in contested judicial
elections. Every Maryland attorney takes an oath to act “fairly and honorably.”16
Those who seek judicial office must resist the temptation to advance at the risk of
violating that pledge.
IT IS SO ORDERED. PETITIONER SHALL PAY ALL
COSTS AS TAXED BY THE CLERK OF THE COURT,
INCLUDING THE COST OF ALL TRANSCRIPTS,
PURSUANT TO MARYLAND RULE 16-761, FOR WHICH
JUDGMENT IS ENTERED IN FAVOR OF JOSEPH
MICHAEL STANALONIS AGAINST THE ATTORNEY
GRIEVANCE COMMISSION.
16 Maryland Code, Business Occupations & Professions Article, §10-212.
20
Circuit Court for Prince George’s County
Case No. CAE14-04639
Argued: September 9, 2015
IN THE COURT OF APPEALS
OF MARYLAND
Misc. Docket AG No. 74
September Term, 2013
______________________________________
ATTORNEY GRIEVANCE COMMISSION
OF MARYLAND
v.
JOSEPH M. STANALONIS
______________________________________
Barbera, C.J.
Battaglia
Greene
Adkins
McDonald
Watts
Harrell, Jr., Glenn T. (Retired,
Specially Assigned),
JJ.
______________________________________
Concurring and Dissenting Opinion by Watts, J.
______________________________________
Filed: November 23, 2015
Respectfully, I concur in part and dissent in part. I would hold that Joseph M.
Stanalonis (“Stanalonis”), Respondent, violated Maryland Lawyers’ Rules of Professional
Conduct (“MLRPC”) 8.2(a) (Judicial and Legal Officials) and MLRPC 8.4(d) (Conduct
That Is Prejudicial to the Administration of Justice).1 Accordingly, I would reprimand
Stanalonis.
I disagree with the Majority’s determination that clear and convincing evidence did
not support the hearing judge’s conclusion that Stanalonis violated the MLRPC. See Maj.
Slip Op. at 16, 19-20. Plainly put, clear and convincing evidence supports the hearing
judge’s conclusion that Stanalonis violated MLRPC 8.2(a) and 8.4(d). MLRPC 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.
Recently, in Attorney Grievance Comm’n v. Frost, 437 Md. 245, 262-63, 85 A.3d 264, 274
(2014), this Court explained MLRPC 8.2(a) in greater detail, stating:
The Preamble to the Maryland Lawyers’ Rules of Professional
Conduct provides that “[6] . . . a lawyer should further the public’s
understanding of and confidence in the rule of law and the justice system
because legal institutions in a constitutional democracy depend on popular
participation and support to maintain their authority.” In other words,
“[m]embers of the legal profession have a responsibility to refrain from
engaging in conduct prejudicial to the administration of justice.” Attorney
1
I agree with the Majority that clear and convincing evidence did not support the
hearing judge’s conclusion that Stanalonis violated MLRPC 8.4(c) (Dishonesty, Fraud,
Deceit, or Misrepresentation). See Maj. Slip Op. at 16-18. The hearing judge gave no
separate analysis that warranted finding Stanalonis violated MLRPC 8.4(c) independent of
MLRPC 8.2(a). Absent any analysis of why a reckless disregard for the truth constitutes a
violation of MLRPC 8.4(c), I concur with the Majority on this point.
Grievance Comm’n v. DeMaio, 379 Md. 571, 581, 842 A.2d 802, 808 (2004).
[MLRPC] 8.2(a) furthers this principle by requiring lawyers to refrain from
impugning the qualifications or fitness of judicial and public legal officers.
As Comment [1] to MLRPC 8.2(a) clarifies, “[e]xpressing honest and candid
opinions on such matters contributes to improving the administration of
justice. Conversely, false statements by a lawyer can unfairly undermine
public confidence in the administration of justice.” See also In re Simon, 913
So. 2d 816, 824 (La. 2005) (“While a lawyer[,] as a citizen[,] has a right to
criticize [judges, judicial officers or public legal officers] publicly, he [or
she] should be certain of the merit of his [or her] complaint, use appropriate
language, and avoid petty criticisms, for unrestrained and intemperate
statements tend to lessen public confidence in our legal system.”). In other
words, the purpose of [MLRPC] 8.2(a) is not to protect judges, judicial
officers, or public legal officials from unkind or undeserved criticisms.
Rather, [MLRPC] 8.2(a) protects the integrity of the judicial system, and the
public’s confidence therein, and it does so in a limited way. Statements in
violation of [MLRPC] 8.2(a) must (1) be false, (2) impugn the integrity or
qualifications of judges, judicial officers or public legal officers, and (3) be
made by the attorney knowing them to be false or with reckless disregard for
their truth or falsity.
(Ellipsis and some alterations in original) (footnote omitted).
MLRPC 8.4(d) provides: “It is professional misconduct for a lawyer to . . . engage
in conduct that is prejudicial to the administration of justice[.]” “Generally, a lawyer
violates MLRPC 8.4(d) where the lawyer’s conduct negatively impacts the public’s
perception of the legal profession.” Attorney Grievance Comm’n v. McDowell, 439 Md.
26, 39, 93 A.3d 711, 719 (2014) (citation, ellipses, and internal quotation marks omitted).
Stated otherwise, a lawyer violates MLRPC 8.4(d) where the lawyer’s conduct “tends to
bring the legal profession into disrepute.” Attorney Grievance Comm’n v. Reno, 436 Md.
504, 511, 83 A.3d 781, 785 (2014) (citation and internal quotation marks omitted). In
Attorney Grievance Comm’n v. Marcalus, 442 Md. 197, 205, 112 A.3d 375, 379 (2015),
we further explained:
-2-
In determining whether a lawyer violated MLRPC 8.4(d) by engaging
in conduct that negatively impacted the public’s perception of the legal
profession, this Court applies the objective standard of whether the lawyer’s
conduct would negatively impact the perception of the legal profession of a
reasonable member of the public . . . , not the subjective standard of whether
the lawyer’s conduct actually impacted the public and/or a particular person
(e.g., a complainant) who is involved with the attorney discipline proceeding.
(Citations, internal quotation marks, and brackets omitted) (ellipsis in original).
Here, Stanalonis, while running for Judge of the Circuit Court for Saint Mary’s
County, disseminated campaign flyers that stated that his opponent, Judge David W.
Densford (“Judge Densford”), among other things, “[o]pposes registration of convicted
sexual predators.” At the disciplinary hearing, Stanalonis testified that he based the
assertion that Judge Densford “[o]pposes registration of convicted sexual predators” on:
(1) his personal knowledge that Judge Densford, while serving as a defense lawyer,
routinely opposed the registration of his clients in the Maryland Sex Offender Registry;
and (2) his conversations with other prosecutors in the St. Mary’s County Office of the
State’s Attorney. Judge Densford testified that he could not recall ever expressing
opposition to the registration of convicted sexual offenders in general, but stated that, as a
defense lawyer, he did attempt to avoid the registration of his clients in particular,
explaining: “[W]hat I had opposed is my clients pleading to things that would get them
registered as sexual offenders, if I could keep that from happening.”
The hearing judge found that Stanalonis “had a demonstrable basis for believing
that [Judge] Densford opposed the Sex Offender Registry.” Nonetheless, the hearing judge
also found that the only measure Stanalonis took to verify the truth of the assertion was to
“s[eek] input” from his campaign volunteers, who did not dispute the veracity of the
-3-
assertion. The hearing judge concluded that Stanalonis “was obligated to make a more
substantial effort in ensuring the accuracy of the proffered statement, and he failed to do
so.” As such, the hearing judge determined that Stanalonis “acted with reckless disregard
to the truth of the statement that Judge Densford ‘Opposes the registration of convicted
sexual predators.’”
Under these circumstances, I would agree with the hearing judge that Stanalonis
violated MLRPC 8.2(a). As Judge Densford’s testimony demonstrated, while representing
individual criminal defendants, Judge Densford attempted to prevent his clients from
pleading guilty to crimes that would result in registration as sex offenders; there is no
evidence that Judge Densford expressed publicly or privately a general opposition to the
registration of convicted sex offenders. Having a demonstrable basis for holding a
particular belief is not the same as knowing that the belief is true or accurate. For example,
I may believe that Christmas will be on a Saturday in 2016 because it is on a Friday in
2015. I have a demonstrable basis for my belief, but my belief is inaccurate. Checking the
calendar would advise that Christmas will be on a Sunday in 2016 because 2016 is a leap
year. Having a demonstrable basis for believing something does not give a lawyer license
to publish such information as though it were accurate or fact. In making the statement on
campaign flyers that Judge Densford “[o]pposes registration of convicted sexual
predators[,]” Stanalonis acted with reckless disregard for the statement’s truth or accuracy.
Indeed, Stanalonis knew only that, as a defense lawyer, Judge Densford had attempted to
have his clients not be required to register as sex offenders. And, as such, Judge Densford
was acting in his capacity as an attorney pursuing his clients’ interests. Stanalonis’s
-4-
statement that Judge Densford “[o]pposes registration of convicted sexual predators”
impugned the integrity and qualifications of Judge Densford and was made with reckless
disregard for its truth or falsity. This was all that was needed to support the hearing judge’s
conclusion that Stanalonis violated MLRPC 8.2(a).
I would also agree with the hearing judge that Stanalonis violated MLRPC 8.4(d)
by disseminating campaign flyers stating that Judge Densford “[o]pposes registration of
convicted sexual predators.” Although Stanalonis did not make the statement with actual
knowledge its inaccuracy, he acted with a reckless disregard as to the statement’s truth or
falsity, and failed to undertake meaningful efforts to ensure that the statement was accurate.
Indeed, other than his personal observations of Judge Densford when Judge Densford was
a defense lawyer and some discussions with prosecutors in the St. Mary’s County Office
of the State’s Attorney, the only measure that Stanalonis took to test the veracity of his
theory was to “s[eek] input” from his campaign volunteers, none of whom apparently
contradicted him. Even viewing it in the most favorable light to Stanalonis, the statement
did not accurately describe what Judge Densford did when he was a defense lawyer.
Such conduct “would negatively impact the perception of the legal profession of a
reasonable member of the public[.]” Marcalus, 442 Md. at 206, 112 A.3d at 380 (citation
and internal quotation marks omitted). Indeed, no reasonable member of the public would
expect a lawyer to make an inflammatory statement on campaign flyers concerning a sitting
Judge’s opinion of the Maryland Sex Offender Registry with a reckless disregard for the
truth and without taking measures to ensure the statement was accurate in the first instance.
Such a cavalier attitude toward the truth “reinforces the most damaging cynicisms
-5-
concerning lawyers’ honesty, avarice, and candor.” Attorney Grievance Comm’n v. Levin,
438 Md. 211, 228, 91 A.3d 1101, 1111 (2014).
Based on Stanalonis’s violations of MLRPC 8.2(a) and 8.4(d), in accord with the
Commission’s recommendation, I would reprimand Stanalonis. Cf. Attorney Grievance
Comm’n v. Basinger, 441 Md. 703, 721-22, 109 A.3d 1165, 1176 (2015) (This Court
reprimanded a lawyer who violated MLRPC 8.4(d) by mailing to a client letters in which
he called the client, among other things, “A TRUE C[**]T[.]”); Attorney Grievance
Comm’n v. Mahone, 398 Md. 257, 268-69, 920 A.2d 458, 464-65 (2007) (This Court
reprimanded a lawyer who violated MLRPC 8.4(d) by, among other things “disrupting the
court proceedings and . . . walking out while the trial judge rendered his oral opinion from
the bench[.]”); Attorney Grievance Comm’n v. Gansler, 377 Md. 656, 701-02, 693, 835
A.2d 548, 574-75, 569 (2003) (This Court reprimanded a lawyer who violated MLRPC
3.6(a) (Trial Publicity) by making extrajudicial statements about a defendant’s confession,
discussing a plea offer made to another defendant, and providing his opinion as to the guilt
of two defendants.).
For the above reasons, respectfully, I concur in part and dissent in part.
-6-
Circuit Court for Prince George’s County
Case No.CAE14-04639
Argued September 9, 2015
IN THE COURT OF APPEALS
OF MARYLAND
Misc. Docket AG No. 74
SEPTEMBER TERM, 2013
ATTORNEY GRIEVANCE COMMISSION
OF MARYLAND
v.
JOSEPH M. STANALONIS
Barbera, C.J.,
Battaglia,
Greene,
Adkins,
McDonald,
Watts,
Harrell, Glenn T., Jr. (Retired, Specially
Assigned),
JJ.
Dissenting Opinion by Harrell, J.
Filed: November 23, 2015
I dissent.
My views regarding the appropriate disposition of this case are informed by the
aphorism “Judicial Elections Are Different.”1 Contested circuit court judgeship elections
are different than other types of contested elections for public office because special rules
and processes distinguish them as a category apart. They should be treated and seen as
different also because of the unique nature of the office being sought. In addition to
complying with State election laws generally, judges’ political activities are regulated by
Rule 4.1 through 4.6 of the Maryland Code of Judicial Conduct (Md. Rule 16-813).
Attorneys who seek judicial office are regulated by Rule 8.2 of the Maryland Lawyers
Rules of Professional Conduct (MLRPC) (Md. Rule 16-814). These regulations aim to
protect the integrity of judicial office and the legal profession. The Maryland Judicial
Campaign Conduct Committee (MJCCC) was formed to focus attention on and foster
integrity and civility in this specific genre of the Maryland judicial election process. It
was the MJCCC (having received a complaint from an attorney) that highlighted for the
1
This is also the title of a pamphlet published by the Maryland Judicial Campaign
Conduct Committee (MJCCC), an organization created in 2005, at the behest of former
Chief Judge Robert M. Bell of this Court and the Judicial Ethics and Public Trust and
Confidence Committees of the Maryland Judicial Conference. The MJCCC was formed
to foster integrity and civility in contested elections for Maryland circuit court
judgeships.
Attorney Grievance Commission the problematic conduct of Stanalonis that resulted in
the charges brought in the present case.2
No such inhibitions regulate or seek to influence the contestants or the contests for
other elective offices. Thus, contested judicial elections in Maryland are different from
other electoral contests.
2
The MJCCC website, explaining the organization’s “Statement of Purpose,”
characterizes why it seeks to uphold dignity in the conduct of contested judicial elections
for circuit court judgeships:
The frankly partisan, occasionally bare knuckles, conduct that we have
come to tolerate in campaigns for legislative and executive office are
inconsistent with the dignity we rightly count on in those who hold judicial
office. The exaggerated rhetoric often employed in contemporary
discussions of political issues, when used in the context of judicial
elections, is corrosive of the public’s perception of the integrity of the court
system. Such campaign tactics damage the integrity of the judiciary --
regardless of whether the communication falls within the ambit of
constitutionally protected speech.
Maintaining the dignity of the judiciary is necessary to protect the rule of
law --- a root principle of our social compact and the one sure standard
upon which this diverse and frequently fractious nation believes it can rely.
The rule of law promises justice, neutrality and fairness. It does not
exaggerate to say that the concept has an iconic status and that faith in the
rule of law is akin to a civil religion. Judges are symbols of the rule of
law. Therefore, those who aspire to judicial office have a special
responsibility -- a duty in fact-- to conduct themselves in their campaigns
with a dignity that reflects and honors the public’s reverence for the unique
office they seek.
Candidates for circuit court judgeships in an election are offered the opportunity by the
MJCCC to pledge publicly to conduct themselves and their campaigns in accordance with
the hortatory standards published by the MJCCC. Stanalonis chose not to make this
pledge. Of course, that fact alone does not bear directly on the outcome of this case, but
it gains prescience in hindsight.
2
As the Majority opinion appears to concede, the present case, as it reaches us,
distills to the single question of “whether the statement in Mr. Stanalonis’ campaign flyer
[that Judge Densford, as a judge, ‘[o]pposes registration of convicted sexual predators’]
was made . . . with reckless disregard as to its truth or falsity.” Maj. slip op at 8 (footnote
omitted). The hearing judge concluded that Stanalonis violated the Maryland Lawyers’
Rule of Professional Conduct (MLRPC) 8.2(a) and MLRPC 8.4(c) and (d) by including
that statement in his flyer. I stand with her.
So as not to risk paraphrasing or summarizing inaccurately or incompletely the
evidence weighed by the hearing judge and the conclusions she reached from that
evidence (after assessing the relative credibility of the two main antagonists here), I
recount what she stated relevantly in her findings of fact and conclusions of law:
FINDINGS OF FACT
***
Respondent Stanalonis and several other Assistant State’s Attorneys
in St. Mary’s County prosecuted cases involving sex offenses wherein
attorney Densford served as private counsel. Based on his experience and
that of other prosecutors in the St. Mary’s County Office of the State’s
Attorney, Respondent testified that attorney Densford routinely opposed the
registration of his clients on the sex offender registry. In reliance, on
conversations surrounding the issue and interactions with fellow
prosecutors, he determined that Densford opposed the registry.
Judge Densford’s testimony with respect to the registration of
convicted sexual predators is as follows:
DIRECT
Q: At any time prior to your appointment on December 22, 2011 in
your capacity as a private person or as a criminal defense attorney,
did you express opposition to the registration of convicted sexual
predators?
A: No. Not as a group. I did when I represented individuals. I
didn’t want particular people to have to register and would negotiate
3
that. That had nothing to do with the offender registry. It had to do
with representation.
Q: At any time prior to your appointment on December 22, 2011 in
your capacity as a private person or as a criminal defense attorney,
did you express opposition to the registration of convicted sexual
offenders?
A: No
CROSS EXAMINATION
Q: So, you put in as an election issue, your experience of 27 years in
private practice, correct?
A: I did.
...
Q: No. My question is, as a criminal defense practitioner, during that
27 years, you, in fact, had opposed the registration of convicted
sexual predators, correct?
A: No, that is not true. And what I had opposed is my clients
pleading to things that would get them registered as sexual
offenders, if I could keep that from happening.
Q: All right. So your position during the 27 years as a criminal
defense practitioner, you would oppose your clients being convicted
of a crime that would require them to be registered as a convicted
sexual predator, correct?
A: If I could get them a plea to assault instead of something that put
them on the registry, particularly since Mr. Stanalonis and I had a 16
year-old facing charges, yes, I tried to avoid that. Yes, I did.
...
Q: Okay. And you would from time to time tell people privately in
conversations that as a criminal defense practitioner [you were]
opposed to registration of convicted sexual predators, correct?
A: No.
Q: No? You never said that in private conversation?
A: That’s been alleged by the State’s Attorney’s Office. It is false.
Q: Okay. So, just so I’m clear, your testimony is that in private
conversations while a criminal defense practitioner, you have never
said in a private conversation over dinner or elsewhere, that you
would oppose the registration of convicted sexual predators.
A: I don’t believe I’ve ever made that blanket statement to anybody
privately or publicly.
4
(Internal citations omitted).
CONCLUSIONS OF LAW
***
[as to the relevant flyer statement and related testimony]
Respondent’s testimony, which this court finds credible, revealed
that he as well as other Assistant State’s Attorneys in St. Mary’s County
prosecuted several cases involving sex offenses, wherein attorney David
Densford served as defense counsel. Respondent testified that he knew
from his own experience and the experiences of other prosecutors in St.
Mary’s County, that attorney David Densford would routinely oppose the
registration of his clients on the sex offender registry.
At his deposition, Judge Densford testified that he opposed his
“clients pleading to things that would get them registered as sexual
offenders, if [he] could keep that from happening.” He denied, however,
making any such statements as a member of the judiciary, and further
stated, that he never had any conversations concerning the Sex Offender
Registry with Respondent outside of the context of the representation of a
client.
This court finds the testimony of both Judge Densford and
Respondent equally compelling. Because of Densford’s history as a
defense attorney and discussions with several Assistant State’s Attorneys,
Respondent had a demonstrable basis for believing that Densford opposed
the Sex Offender Registry. Additionally, he sought input on the issue from
his campaign volunteers and no one disputed the veracity of this assertion.
However, this court finds that Respondent was obligated to make a more
substantial effort in ensuring the accuracy of the proffered statement, and
he failed to do so.
As a result, Respondent acted with reckless disregard as to the truth
of the statement that Judge Densford “Opposed registration of convicted
sexual predators.” Judge Densford never made any public statement
regarding the sex offender registry, and Respondent took no measures
outside of those outlined above to ensure the truth of his assertion.
Additionally, Respondent’s justification presupposes that Judge Densford
personally shared and upheld the values and opinions of the individuals he
represented. Respondent’s statement violated Rule 8.2(a), and 8.4(c).
5
Petitioner also contends that Respondent’s statement that Judge
Densford “Opposes registration of convicted sexual predators” violated
Rule 8.4(d). Specifically, Petitioner argues that Respondent’s conduct was
prejudicial to the administration of justice. This Court agrees. The actions
of Respondent were reckless and had the effect of undermining public
confidence in the administration of justice. Conduct that reflects negatively
on the legal profession and sets a bad example for the public at large is
prejudicial to the administration of justice. Attorney Grievance
Commission v. Brady, 422 Md. 441 (2011) (citing Attorney Grievance
Commission v. Goff, 399 Md. 1 (2007). Respondent failed to make a
substantial effort to ensure that the statement was accurate. Thus, in
making the statement that Judge Densford “opposes registration of
convicted sexual predators” Respondent sent a message to the public that it
is acceptable to make representations regarding the identity or opinions of a
public official, specially a judge, without first conducting a full and
thorough investigation into the accuracy of the assertion.
In sum, Petitioner has established, by clear and convincing evidence,
that Respondent violated Rule 8.2(a), 8.4(c) and 8.4(d) of the Maryland
Lawyers’ Rules of Professional Conduct.
The Majority opinion sets-up principally its ultimate toleration of Stanalonis’
mis-representation of the view attributed to Judge Densford, as a sitting judge, as
protected speech and/or merely imprecise language chosen during the “heat” of nothing
more than a generic political campaign. Maj. slip op. at 9-11. The Majority’s setting of
this scenic backdrop does not convince me to buy-in to its analysis that followed.
Wishful thinking and recklessness should not be protected. Contested judicial elections
are not merely generic political campaigns.3
3
The Majority seems to want to “try” Judge Densford in absentia in this case
through its digressions into examples of his reputed campaign statements about
Stanalonis, which the Majority implies to have been less-than-praiseworthy. If the
Majority is invoking either the principle that “two wrongs cancel out each other” or the
doctrine of invited error, it wanders off the path charted for us.
6
The “reckless disregard” standard of the MLRPC should be assessed under an
objective standard (see Maj. slip op. at 12-13). This analytical tool is better suited to
policing judicial electoral campaign conduct because it allows for closer regulation of any
tendencies on the part of candidates to do or say whatever is in their best interest,
especially as they are likely to handicap favorably their ability to get away with it. A
subjective standard merely plays into the hands of candidates who want to take advantage
of the shadowy margins. I am persuaded that an objective standard is the safer fork in the
road to take also because I agree with the goals of the MJCCC and the Maryland Rules as
regards conduct in contested judicial elections.
The Majority opinion is mistaken entirely in its apparent assumption that Judge
Shaw Geter “generally credited” (Maj. slip op. at 15) Stanalonis’ determination that
Judge Densford “opposed the registry.” Id. Rather, by finding credible Judge Densford’s
testimony that he, while an attorney in private practice and as a sitting judge, did not
make any sweeping or generic statement of opposition to the sex offender registry
statutory scheme, Judge Shaw Geter rejected Stanalonis’ self-serving bid to establish a
springboard from attorney Densford’s client advocacy to Stanalonis’ patently wrong
attribution to Judge Densford of what Stanalonis may have believed he had a
“demonstrable basis” to think attorney Densford’s view may have been. I see a wide gap
between holding a candidate for judicial office to a standard of “absolute precision in the
expression of political speech as part of an election campaign” (id.) and gross
carelessness in injecting into the public debate (where little practical or timely
opportunity to defend against it existed) a claim for which a reasonable promoter of the
7
claim had no legitimate basis to publish it, but rather a duty to inquire further or verify
before leaping to a self-serving and logically faulty premise. Stanalonis, eschewing
further inquiry or verification, tailored to his ends, at best, an impermissible and
unsupported leap of logic to infer from attorney Densford’s advocacy of his clients’ best
interest to a generic and false view of opposition to the statutory scheme held by
Densford as a judge. He cared little apparently for whether his starting-point statement
was true, accurate, or taken out-of-context, standing pat on the claim that apparently none
of his State’s Attorney colleagues spoke up against his unsubstantiated extrapolation
from a false starting-point. Stanalonis’ conduct was a gross departure from what a
reasonably prudent lawyer challenging a sitting judge should have done and a gross
deviation from the kind of conduct we should expect from any candidate for judicial
office. Toleration of such shenanigans in general electoral campaigns is one thing, but is
not acceptable here. The Majority opinion’s forgiving attitude toward Stanalonis’
misconduct will reap the whirlwind in future contested circuit court elections.
I would overrule Respondent’s exceptions and accept Bar Counsel’s sanction
recommendation of a reprimand, in view of the mitigating circumstances found by the
hearing judge.
8