Attorney Grievance Comm'n of Md. v. Weinberg

1

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. ASHER NEWTON WEINBERG

No. 1-2022

Maryland Supreme Court

August 31, 2023

IN THE SUPREME COURT OF MARYLAND ^[*]

Argued: May 5, 2023

Circuit Court for Montgomery County Case No C-15-CV-22-001132.

Fader C.J., Watts, Hotten, Booth, Biran, Gould, Eaves, JJ.

OPINION

Eaves, J. On March 14, 2022, the Attorney Grievance Commission of Maryland (the "Commission"), acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action (the "Petition") against Respondent, Asher N. Weinberg, a member of the Maryland Bar, arising out of his representation of Megan B. Lemons and Bar Counsel's subsequent investigation. The Commission alleged that Respondent violated the following Maryland Attorneys' Rules of Professional Conduct ("MARPC")^[1]:

• 19-301.1 Competence (1.1);

• 19-301.2 Scope of Representation and Allocation of Authority between Client and Attorney (1.2);

• 19-301.16 Declining or Terminating Representation (1.16);

• 19-303.3 Candor Toward the Tribunal (3.3);

• 19-303.4 Fairness to Opposing Party and Attorney (3.4);

• 19-308.2 Judicial and Legal Officials (8.2); and

• 19-308.4 Misconduct (8.4).

Pursuant to Maryland Rule 19-722(a), this Court referred the matter to the Circuit Court for Montgomery County and designated the Honorable Kathleen M. Dumais (the "hearing judge") to conduct an evidentiary hearing and make findings of fact and conclusions of law. After a two-day hearing held on December 12 and 13, 2022, the hearing judge found clear and convincing evidence that Respondent violated Rules 1.1; 1.2(d); 3.3(a)(1); 8.2(a); and 8.4(a), (c), and (d), as alleged by the Commission.^[2] The hearing judge also found four aggravating factors and four mitigating factors. Bar Counsel recommends that Respondent be indefinitely suspended from the practice of law with a right to apply for reinstatement in one year. Respondent has filed exceptions to the hearing judge's Findings of Facts and Conclusions of Law. For the reasons discussed below, we shall sustain Respondent's exceptions to Rules 1.1 and 1.2, overrule Respondent's exceptions to Rules 3.3, 8.2, and 8.4, and indefinitely suspend Respondent with the right to apply for reinstatement after six months from the beginning of the period of suspension.

I HEARING JUDGE'S FINDINGS OF FACT

The hearing judge found that Respondent was admitted to the Bar of the Supreme Court of Washington in 2003 and, in his first year as a lawyer, he was a full-time volunteer and operated several legal clinics in Tacoma, Washington. He then worked as a public defender in Yakima County, Washington, for approximately five years. After that, Respondent worked for the Confederated Tribes and Bands of the Yakama Nation "representing tribal members and focusing mostly on criminal law." On July 30, 2013, Respondent was admitted to the Maryland Bar. The hearing judge found that, over the course of Respondent's career in Washington and in Maryland, he has handled "hundreds and hundreds" of criminal cases.

A. Representation of Megan B. Lemons

On November 15, 2019, Megan B. Lemons was charged with armed robbery and related offenses that occurred at a 7-Eleven in Anne Arundel County on October 15, 2019. Important to the State's case against Ms. Lemons was the identification of the alleged robber by Kaija Hirsch, a cashier at the 7-Eleven. At the time of the robbery, Ms. Hirsch was behind the check-out counter when an unknown woman approached her, asking to buy an item located behind the counter. As Ms. Hirsch turned to retrieve the item, the woman knocked Ms. Hirsch to the ground. Once Ms. Hirsch was on the ground, the woman jumped over the counter and held a knife to Ms. Hirsch's throat. The woman proceeded to take money out of the cash register before fleeing on foot. Shortly thereafter, the police questioned Ms. Hirsch about the identity of the robber. Ms. Hirsch described the robber as a "White female with olive toned skin[,]" and a wide build, standing somewhere between 5' 7" to 5' 8" tall. Additionally, the police posted a still photo taken from the 7-Eleven's security camera online, asking the public to help identify the suspect.

Eventually, a police investigation led to Ms. Lemons being identified as the purported robber. She was arrested in Virginia and extradited to Maryland. On January 27, 2020, a bond review hearing was held in the District Court of Maryland for Anne Arundel County before the Honorable Danielle M. Mosley. Judge Mosley ordered that Ms. Lemons be held without bond and imposed several special conditions, including the condition that Ms. Lemons not contact or harass Ms. Hirsch. One month later, a grand jury sitting in Anne Arundel County indicted Ms. Lemons and her case was transferred to the Circuit Court for Anne Arundel County. The transfer order included Ms. Lemons' regular bond conditions and the special condition that she have no contact with Ms. Hirsch.

After the case was transferred to the circuit court, Respondent entered his appearance on February 23, 2020, on behalf of Ms. Lemons. A few days after doing so, he filed a Motion to Review and Reduce Bond. The circuit court held a hearing on March 6, 2020, at which the Honorable Robert J. Thompson ordered that Ms. Lemons be released on home detention with the condition that she be allowed to travel for "legal, medical, and home detention appointments only." During the disciplinary hearing, Respondent claimed that because Judge Thompson did not include the special condition that Ms. Lemons have no contact with Ms. Hirsch in the home detention order, it was Respondent's understanding that "[Judge Thompson] was striking" the no-contact order. The hearing judge found, however, that Judge Thompson did not alter or strike the no-contact order imposed upon Ms. Lemons by Judge Mosley.

Throughout Respondent's preparation of Ms. Lemons' case for trial, he consistently asserted that the police wrongly identified Ms. Lemons as the robber and that she, therefore, was innocent. In an email to Glen Neubauer, the Assistant State's Attorney assigned to the matter, Respondent stated, in pertinent part:

I have left another message for the detective, even though he has yet to ever return one of my calls. I want him to come down to the hospital, or I will drive Megan there to meet him. Someone from your side should actually meet her in person, and compare her to the person in the video.

If he won't meet us, i will contact the [Ms. Hirsch], and ask her to meet us, and see if she recognizes Megan. If you have another idea, let me know.

* * *

Brian,^[3] feel free to contact me by phone or e-mail.

I will continue to try to get a hold of the detective.

(All sic in original).

Mr. Neubauer did not respond to the email, so Respondent reached out to Ms. Hirsch directly and sent her the following text message:

Ms. Hirsch. My name is Asher Weinberg. I am investigating the 7-11 robbery where you were the victim. If you are available to talk, please call or text me. Or, if you have an email address, I would like to send you some photos, and see if you recognize the person as the robber. I would also like to find out more information about the height of the woman in relationship to you.

Thank you.

Ms. Hirsch responded to the text message, and, in the following week, the two began communicating about the robbery via text messages and phone calls. During one of the text-message exchanges, Respondent sent Ms. Hirsch several photographs of different women and asked whether she could identify any of the women as the robber. Ms. Hirsch told Respondent that she could not give him a definitive answer. Eventually, Respondent set up an in-person meeting between Ms. Hirsch and Ms. Lemons, and he sent the following text message to Ms. Hirsch:

Megan can no longer afford to be on the ankle bracelet, which means she may need to turn herself back into jail on Monday. If you could meet with us tomorrow or Friday, that would be very helpful! I can drive her down to wherever you want, at anytime you want. I hate to be pushy but with Covid, the courts are not having any trials until probably November or December, and if she id truly innocent, I don't want her sitting in jail until then.

Thank you.

(All sic in original). In response, Ms. Hirsch agreed to meet with Ms. Lemons.

On June 5, 2020, Respondent personally transported Ms. Lemons to an agreed-upon location. In total, the meeting lasted 15 minutes, and Respondent, Ms. Lemons, Ms. Hirsch, and a friend of Ms. Hirsch were present. During that time, Respondent questioned Ms. Hirsch about the description of the robbery suspect. Although Ms. Hirsch observed that the robber was closer to the height of the Respondent than to Ms. Lemons' height, Ms. Hirsch still definitively could not rule out Ms. Lemons as the suspect. At his disciplinary hearing, Respondent testified that, although he did not specifically ask Ms. Hirsch that question, Ms. Hirsch did not tell him that Ms. Lemons was not the robber.

Two days after the meeting, Respondent texted Ms. Hirsch the following: "Good evening. I am filing a motion tomorrow to try and get [Ms. Lemons] release. May I say that when we meet, you could not identify her as your attacker? Would that be accurate?" (All sic in original). Ms. Hirsch did not respond to this text message. Respondent then called Ms. Hirsch, but she was unable to give a definitive answer as to whether she could identify Ms. Lemons as the robber. Ms. Hirsch was, however, able to say that she perceived the robber to be taller and heavier than Ms. Lemons.

The hearing judge found that,

based on [Ms. Hirsch's] testimony and the copies of the written communications, at no point did Ms. Hirsch tell Respondent that Ms. Lemons was not the

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